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Posted at 05:33 PM on January 03 | Comments (0)

New Kid on the Catholic Bloc

If Samuel Alito joins the Supreme Court next year, Catholics will be a majority of the nine justices. Law scholar Marci Hamilton asks in Current what effect religion will have on the next court. What's more important: faith or training?

If Judge Samuel A. Alito Jr. is named to the Supreme Court, there will be five Catholics on the court. Will this make a difference?

The short answer is "no." There is simply no way to predict how any one Catholic is going to vote on an issue. We live in the era of "cafeteria Catholics," which is to say that American Catholics pick and choose among their church's doctrines, especially when the issue is contraception, abortion or premarital sex. The Roman Catholic Church does not and cannot control how American Catholics view social issues. Thus, five Catholics will be about as predictable as any other five Americans in how they vote on hot-button issues.

Click HERE to get the full story.

Posted at 10:00 PM on December 18 | Comments (0)

CourtBriefs for Dec. 9, 2005: Abortion's So Over

Onetime LiveCurrent contributor Edward Lazarus writes at FindLaw that he's fed up with the abortion debate and wants to hear about Alito's views on voting rights. "I expect a lot of attention will turn to Alito's professed opposition, contained in a 1985 memo, to Baker v. Carr, and to the judicially imposed principle of 'one person, one vote.' "

Posted at 10:50 AM on December 09 | Comments (1)

CourtBriefs for Nov. 29, 2005: Ayotte, Aieee!

The Supreme Court is set to hear its first abortion case in five years, and for court-watchers that's an eternity. Here's why it's a big deal, according to journalists and bloggers:

1. It could up the ante for abortion-law challenges: Alex Lees at SCOTUSblog says the case "raises the question of what hurdle opponents of abortion statutes must clear before making facial constitutional challenges to those statutes." (A "facial challenge" is one made before a law goes into effect--i.e., that the law is unconstitutional "on its face," not because it harmed someone.) Would opponents of a parental notification law like New Hampshire's only have to argue the law threatened the rights of hypothetical women (as they did), or would they have to find real women whose rights had been violated? Currently 43 states have such laws, but only five do not offer an exception for non-life-threatening health reasons. Such reasons include spikes in blood pressure and severe uterine bleeding, according to abortion-law opponents.

2. It feeds the debate over whether Roe is settled law: Even Democrats disagree about whether Roe v. Wade is worth defending. (Roe recognized mothers' right of privacy and states' "interest in the potentiality of human life.") Law profs and abortion-rights advocates Sanford Levinson of the University of Texas and Jack M. Balkin of Yale are hammering it out at Legal Affairs. Writes Levinson: "I am increasingly persuaded that the principal beneficiary of the current struggle to maintain Roe is the Republican Party." Ripostes Balkin: "One doesn't 'give up' on constitutional rights unless one is already convinced that they aren't very important or don't actually exist." Balkin predicts removing Roe "will produce significant restrictions on abortion in a very large number of other states, and outright prohibitions in a handful of still other states."

Meanwhile, the Financial Times' Holly Yeager reports that the prospect of no mo' Roe is making some moderate Republicans nervous. "As long as the Roe ruling remains intact, voters who favour abortion rights can support Republican candidates who oppose abortion rights," writes Yeager. Without it, frets Republican Rep. Tom Davis of Virginia, "It would be a sea-change in suburban voting habits."

Posted at 03:14 PM on November 29 | Comments (0)

CourtBriefs for Nov. 28, 2005: Fix-O-Dentil

As oral arguments started today in a bank-fraud case, two basketball-size pieces of dentil molding fell off the Supreme Court's facade, according to AP (via CNN). The pieces missed taking a bite out of the several dozen tourists in line outside, including a class of Columbus 8th-graders who set to work pilfering the scattered shards. Police officers stopped them.

In other Supreme Court news, justices let stand a California judge's decision that a man convicted of mail fraud stand outside a San Francisco post office for a day with a signboard reading "I stole mail. This is my punishment." Insert your Bush v. Gore joke here.

Posted at 12:52 PM on November 28 | Comments (0)

Samuel Alito's True Beliefs

In this week's Current, UC Hastings' Vikram Amar says Alito's 1985 memo "shows what it meant to be a true conservative in the 1960s and 1970s."

Judge Samuel A. Alito Jr.’s 1985 application for a high-level Justice Department job not only offers a glimpse into his legal thinking, it also lays out the probable course of his confirmation hearings in January. Most revealing, it illuminates the nature of legal conservatism during the last few generations.

On his application, Alito identified himself as a lifelong conservative who was influenced by Barry Goldwater’s 1964 presidential campaign. He wrote that he became interested in law while in college because he objected to numerous Warren court decisions.

Alito and his supporters contend that the application reveals only his personal views, and that his 15-year record as a judge proves that he can put aside such views when deciding cases.

But Alito stated in his application that “the Constitution does not protect a right to an abortion” and that Roe vs. Wade should be overturned — a legal position he advanced with “satisfaction” on behalf of the Reagan administration because he “personally believe[d] very strongly” in it. A judge who thinks that abortion is morally wrong might be able to put aside this belief when judging a case. But it’s hard to see how a judge’s “personal” view on the legal meaning of the Constitution won’t affect his judicial task of deciding what the Constitution means.

Read the rest of "Samuel Alito's True Beliefs."

Posted at 08:45 AM on November 20 | Comments (1)

CourtBriefs for Nov. 15, 2005: Red Meat

"There's a lot to chew on," writes Steve Benen at the Carpetbagger Report. What's he salivating about? News that then-assistant to the solicitor general Samuel Alito wrote in a 1985 promotion application, "I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

The right jab: Sen. Dianne Feinstein says Alito told her today, "I was an advocate seeking a job, it was a political job and that was 1985" (AP via ABC News). Writes Andrew at conservative Confirm Them blog in response, "Can't argue with those facts. Everyone can go back to sleep now." Scott Johnson at Powerline says the quotes "corroborate our take on Judge Alito. He represents the best of a generation of conservative lawyers who came to maturity in the aftermath of the Warren Court and its transformation of the judiciary into the most dangerous branch."

Fighting words: The reliable Ann Althouse calls the two sides out: "With this letter, we enter a new phase of the nomination process, in which the opponents have something very substantial to talk about. And, indeed, they must fight, based on this." She outlines the ground: the legal effect of personal beliefs, and a debate between conservative and liberal legal positions. David Kravitz at Blue Mass Group echoes Althouse: "These ought to be excellent confirmation hearings.... Alito has basically nowhere to hide. He's going to be asked the big, hard questions, and he will have to answer them — if he doesn't, he shouldn't be confirmed."

Call to arms: One jurist who hasn't changed his legal views since 1985 is Stephen Reinhardt, the 9th Circuit Court judge in L.A. who makes Daily Kos' liberal Supreme Court dream team. In the latest Harper's magazine (no link available), Reinhardt takes exception to University of Chicago prof Cass Sunstein, who wrote in September, "Most modern constitutional disputes can be understood in terms of the division between fundamentalists and minimalists," which he defined as jurists committed to an "original understanding" of the Constitution and those who "dislike ambitious theories and prefer to avoid taking sides in large-scale social controversies." Added Sunstein, "The center has become the left. The right is now the center. The left no longer exists." Ripostes Reinhardt, "There is indeed a constitutional philosophy that is preferable to minimalism or fundamentalism: it's called liberalism."

And yes, Alito got the job as deputy assistant to Attorney General Edwin Meese III.

Posted at 03:37 PM on November 15 | Comments (0)

This Time, Alito, It’s Personal

By Kate Michelman, former president of NARAL Pro-Choice America and the author of the memoir, “With Liberty and Justice for All: A Life Spent Protecting the Right to Choose,” to be published by Hudson Street Press/Penguin in December. Published this week in Current

Looking back more than three decades to one of the most difficult times in my life, it’s hard to say what seems more insulting: being forced to obtain my husband’s permission to have an abortion after he had just abandoned my family or — many years later — Supreme Court nominee Samuel A. Alito Jr.’s ruling that a similar requirement was not, in constitutional parlance, an “undue burden.”

In 1969 — in those distant but suddenly closer days before Roe vs. Wade — my husband deserted me and our three small daughters. After learning I was pregnant, and making the wrenchingly personal decision to have an abortion, I was forced to submit to an invasive and humiliating interrogation before a hospital review board in Pennsylvania. It ultimately gave its permission. I was in the hospital preparing for the procedure when a nurse informed me I would need my husband’s permission too. I found him a few days later and he gave it.

Read the rest of "This Time, Alito, It’s Personal."

Posted at 05:39 AM on November 13 | Comments (2)

CourtBriefs for Nov. 10, 2005: Recusations

Democrats are raising conflict of interest questions about Supreme Court nominee Samuel Alito's involvement in a mutual-fund case. Maura Reynolds writes about it in the news pages.

Joe at Americablog gets worked up over reports that Alito failed to recuse himself in a 2002 case involving a mutual fund company that held $400,000 of his money — after promising senators in 1990 he would: If a nominee for Supreme Court already has a history of telling the US Senate one thing to get confirmed, then doing the exact opposite, when can you trust him?" Joe points out another case that reveals "very troubling pattern": Alito's ruling in a 1995 case involving his sister's law firm. According to the Boston Globe, it's "at least the third instance in which there is no indication the Supreme Court nominee recused himself from the kind of case he had promised a Senate committee he would avoid as a federal judge."

Oops he did it again? Approaching the question in a "pragmatic, purposive manner," UCSD's David McGowan concludes "Judge Alito did nothing seriously wrong," and adds: "Sitting on the case in the first instance was a mistake — an 'oops,' as Professor Lubet rightly says — but people do make mistakes," referring to a comment on NPR by Northwestern's Steve Lubet. Ah, yes, the Lubet Oops Rule.

From the archivio: In a boon to college copycats everywhere, the Seeley G. Mudd manuscript library at Princeton has posted a link to Alito's senior thesis, "An Introduction to the Italian Constitutional Court" (PDF). Good news for students of the 19th-century Statuto! Alito ends with this ringing endorsement of (Italian) judicial activism: "in a country in which Parliament is often deadlocked and with the taste of power in its mouth, the Court is unlikely to ever renounce an active role." (Link via SCOTUSblog).

Posted at 11:00 AM on November 10 | Comments (1)

CourtBriefs for Nov. 7, 2005: Double-Take That!

Harvard's Lawrence Tribe does a double-take in the Boston Globe over Alito's opinion (PDF file) that the Family and Medical Leave Act did not protect a man fired while on approved sick leave. Writes Tribe about a later case, "The evidence and legal arguments hadn't changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the 'pervasive sex-role stereotype that caring for family members is women's work.'"

Responds Wisconsin law blogger Ann Althouse: "Talk about doing a double take! Is this really by Larry Tribe?" Althouse argues the two cases aren't as similar as Tribe suggests, because the Alito opinion involved self-care.

The legal parsing continues in the comments, where Max Kennerly suggests "what concerns liberals" about Alito's reasoning: "There was very clear evidence before that States were still discriminating against females, and Alito didn't even recognize that evidence as existing."

Posted at 09:32 AM on November 07 | Comments (0)

CourtBriefs for Nov. 4, 2005: Ripped from the Blogs

Captain Ed gets happy after reading Henry Weinstein and David Savage's story about liberal lawyers who support Alito. "This demonstrates the healing power of originalist thought on the bench," he muses at Captain's Quarters blog, and predicts that some of those quoted will turn up at the Senate hearings in January.

Kate Pringle, the former Kerry campaigner and Alito clerk quoted in the Times story, first appeared on the blog Blue Mass Group Monday in a post titled "One Liberal's Positive View of Alito." "She thought that overall Alito's approach would probably resemble that described by now-Chief Justice Roberts in Roberts' confirmation hearings," wrote blogger David Kravitz. "As to specifics, Pringle was not willing to hazard a guess as to whether, given the chance, Alito would vote to overrule hot-button cases like Roe v. Wade and Lawrence v. Texas." There's no report of how Pringle came to the blog's attention.

Update on 11/8: David of Blue Mass Group responds, "To answer your question: Kate and I both worked on legal issues for John Kerry's presidential campaign. We stayed in touch afterward, and I knew that she had clerked for Alito, so when he was nominated she was the first person I called."

Posted at 08:06 AM on November 04 | Comments (0)

CourtBriefs for Nov. 2, 2005: The Non-Abortion Debate

"Why oh why does everyone focus exclusively on Roe v. Wade?" pleads reader Geezlouise. "This debate should be about national security and the bill of rights, specifically privacy and the separation between church and state," she explains. Now somebody tells us.

In the archive: The University of Michigan law library has a page of Alito links, including PDF files of dissenting and majority opinions.

The Times' Henry Weinstein documents a few of those cases, such as a 1996 dissent in which he argued the court should overrule a law prohibiting the possession or transfer of machine guns, and a 1999 case in which he upheld a New Jersey city hall holiday display containing a creche and menorah.

All the news: Howard Bashman collects collects Alito news and views at his How Appealing blog.

Posted at 09:57 AM on November 02 | Comments (0)

CourtBriefs for Nov. 1, 2005: The Hunky-Dory Story

Washington's about to get the political fight it's been spoiling for. Or is it? John Dickerson at Slate sums up the conventional wisdom (echoed in The Times editorial): "Finally, the battle everyone has been waiting for." Sidebar: Bush back in charge. "While the Democrats erect obstacles, the White House is all frantic acceleration," writes Dickerson, adding, "After spending the last several weeks on defense, Bush will have at least two days where he gets to decide what goes on the front page." Anti-Miers standard-bearer David Frum predicts at his National Review blog Dems will no-show for the nomination fight — they don't have the votes, and character attacks could weaken the party going into 2006 elections. "I think polls will soon tell us that this nomination is popular. For Dems, every day spend fighting on the losing side of this battle is a day they are not slamming the president on gas prices, Lewis Libby, and other genuine political vulnerabilities," Frum writes.

Law prof Eugene Volokh is quibbling with Slate's Dahlia Lithwick's critical piece on Alito. Writes Lithwick: "If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades." Responds Volokh: "Perhaps this should lead people to infer that he would reverse Roe if he had a chance. But an 'explicit promise'?"

Law prof and blogger Ann Althouse sizes up the Antonin Scalia-Samuel Alito comparison in the New York Times. There's more on her blog: "Why Alito is a stronger choice than John Roberts."

Posted at 09:04 AM on November 01 | Comments (0)

CourtBriefs for Oct. 31, 2005: Fight or Fright

6 P.M. UPDATE: Conservatives can breathe a Hugh sigh of relief — Hewitt's back on board. The blogger who supported the Miers nomination is firing away at Alito's opponents: "I am astonished that Democrats and the lefty groups are already on the attack against the son of an immigrant and a public school teacher."

The numbers racket: Bloggers are handicapping the Alito confirmation vote. Polipundit counts 52-55 votes for Alito. Matthew Franck guessed more than 60 votes for the nominee (see Filibluster below). Captain Ed at Captain's Quarters guesses 65-35. Meanwhile Atrios has reposted a study of how often Supreme Court judges voted to overturn Congressional laws. The leader: Clarence Thomas, at 65.63%. The loser: Breyer, at 28.13%.

Harmless, factual, and trivial: Blogometer notes that Wikipedia has started an entry for the Samuel Alito Supreme Court nomination, the third of the Wikipedia era. Why is there a separate entry for Alito and his nomination? "The nomination is an event, the person is a person," explains self-descibed Wikipediholic BDAbramson, "and if all of what will end up in the 2 articles went into one, it would end up being too long anyway."

The Samuel Alito talk page offers a glimpse behind the scenes at what college students will soon be taking as gospel. Take this wikidebate about supportive comments made by Democratic senators like Ted Kennedy after Alito's 1990 nomination as federal appeals judge (Kennedy commended Alito for "long service in the public interest" and wished him a "successful" career as a judge): "These quotes of questionable relevance are cherry-picked for purposes of POV by a political party and thus constitute clear POV pushing ... They don't constitute POV pushing here if they are correctly explained ... Miers didn't have such quotes — the intent of this section is shown clearly by that it was originally copy+pasted verbatim from RNC press release." User Delirium suggests a compromise: paraphrasing. Another user asks, "Is the last factoid 'Born on April Fools Day and nominated on Halloween' really needed?" another user asks. "It's harmless, factual, and trivial. I think it's fine," responds Elliskev.

2 P.M. UPDATE: James Taranto sums up right-wing bloggers' state of mind today at Opinion Journal: "Once again, all is right with the world." His preview on the filibuster option (see Filibluster below)? "If the Democrats are smart — admittedly, an "if" almost as prodigious as Chuck Schumer's ego — they will handle this the way they did the nomination of Chief Justice John Roberts: make some hateful noises as blue imitation meat for the base, but refrain from obstructing the nomination with a filibuster."

Pundits' prophecy: Taranto claims the Wall Street Journal's Dan Henninger called the Miers withdrawal Oct. 7 on PBS' "Journal Editorial Report." Here's what he said, when asked by host Paul Gigot whether Miers would be confirmed: "Long shot. President withdraws her, proposes someone else, galvanizes the party." The OC Weekly's Rebecca Schoenkopf e-mails LiveCurrent today staking her claim. In an Oct. 7 column, Schoenkopf wrote: "Meet Supreme Court nominee Harriet Miers. Or don't, because by the time this column comes out, she'll probably have met a nanny problem she can't refuse." "Do I win?" she asks in her e-mail. The LiveCurrent court hasn't come down yet in this East Coast-West Coast beef.

Filibluster: "Dems — filibuster this!" crows Carol at Confirm Them. With Alito, will conservatives get the Senate showdown they wanted? "We're about to get the fight over Constitutional principles that conservatives have looked forward to for years," salivates Scott at Power Line. Activists on both sides are gearing up for a throwdown that could end in a filibuster of Alito and threaten the deal Senate moderates worked out this year to prevent Senators from blocking judicial nominees while preserving the filibuster rule. Matthew Franck at National Review's Bench Memos predicts that Dems will cut and run, not stand and fight. "There will be no filibuster attempt," he writes, speculating that "the final vote in favor of Alito will be more than 60 senators, possibly more than 65." But we're getting way ahead of ourselves.

Scalito's Way: Back when Bush announced Harriet Miers as the next Supreme Court nominee, he praised her lack of judicial experience as an asset. "I've come to agree with the late Chief Justice William Rehnquist, who wrote about the importance of having judges who are drawn from a wide diversity of professional backgrounds," he said. This morning, he flip-flopped, saying Federal Court Judge Alito "has more prior judicial experience than any Supreme Court nominee in more than 70 years." What will that experience reveal?

Blogger Angry Bear looks at Alito's argument in a 2000 Family and Medical Leave Act case. "Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually," Bear growls.

Confirm Them led the charge against Miers, and the blog is now parsing Alito's judicial record. Carol describes Alito's vote to uphold a Pennsylvania abortion law's spousal notification provision in Planned Parenthood v. Casey as "hardly bizarre or out of the mainstream": "The relevant question is not whether Judge Alito himself favors spousal notification before a woman can get an abortion. Nobody knows, and frankly, nobody cares."

Posted at 06:00 PM on October 31 | Comments (2)

Court Briefs for Oct. 30, 2005: Victors, Spoils

A president's nominee deserves an up or down vote, except when she doesn't: Mark Shields, writing in today's WaPo, says conservatives weakened themselves for the next fight by demanding papers and religious views from this most recent nominee: "The big losers are those on the political right -- both her supporters and her opponents -- whose contradictions and moral relativism were enough to give hypocrisy a bad name."

Argh: In today's NYT, David D. Kirkpatrick reports that conservatives, flushed from slaying the Miers nomination, are demanding red meat. And a flagon of mead. And that comely wench with the saucy look in her eye. OK, Kirkpatrick didn't report those last two.

Respect for the elders: Also in today's NYT, Jeffrey Rosen, brings up the idea of "superprecedents" — basically the idea that the Supreme Court shouldn't overturn decisions it thinks are wrong if it's a really old decision that's been reaffirmed — but doesn't say if he's for 'em or against 'em or if he thinks Roe v. Wade is one, only that some people think it is and others don’t.

Pining for Sandy: And — still in the Sunday NYT — Adam Cohn editorially observes that Sandra Day O'Connor was the Supreme Court's pragmatic politician and says that will mostly be something to miss when she leaves.

Posted at 01:00 PM on October 30 | Comments (0)

CourtBriefs for Oct. 28, 2005: Dwelling on the Future

A deep breath and then a plunge back into the news spin cycle. That's what many commentators are doing after a rip-snorting day in D.C. Looking back: How did Miers become the 11th withdrawn nominee in Supreme Court history? What effect did the blogotorial backlash have inside the White House bubble? Did it signal social conservatives' independence day, or is it their Battle of the Bulge? Still to come: Who will Bush pick? And will he do it out of pique or perspective? Will the right be satisfied? Will the left find its spleen? And we've got indictment(s). Or not. Stay tuned.

Touched by a cartoon: Editorial cartoonists have regularly been tough on Miers, but Times staffers are congratulating themselves for running Michael Ramirez' Miers on the hook in yesterday's paper, before the withdrawal was announced. Mike, how about a peek behind the scenes at who was holding the hook?

Blog mob counts coup: Some members of the blogosphere are preening for their close-up after their opposition to the Miers nomination. Truth Laid Bear finds 70% of conservative bloggers in its self-selected sample opposed the Miers' nomination. And Hotline's Blogometer reports that Republican leaders met with bloggers last week, and that White House staffers were in touch with one 527 group blog, RedState, whose spinoff blog Confirm Them took a hard line on the presumed moderate Miers last week.

Krempasky demurs at Confirm Them today: "This site was hardly intended to be one of the centers of the anti-Miers movement" and emotes, "The President has the chance to unite all of us by selecting a jurist that fits the bill he himself offered — one in the mold of Justices Thomas and Scalia."

White House still large and in charge: Lyle Denniston at SCOTUSblog says the ball's still in Bush's Court: "The President appears to have less flexibility about what he does next, and the moderate Republican senators probably gain some power to determine the fate of a new nominee. The Democrats, on the other hand, may not realize much advantage, if any. Much will depend, though, on what the mood is in the White House as the selection process reopens."

Posted at 08:30 AM on October 28 | Comments (0)

LiveCurrent Readers Respond

"Message to My Best Friend, Harriet: Girl, what are you thinking," quipped reader Ky Fielding Saturday in a comment urging Miers to "stand up right now and walk out that door." Last week reader B.L. Magalnick wrote, "Since we have a president who amazingly enough has never ever been wrong, it is of utmost urgency that the judicial committee block this nomination and force a withdrawal." Have thoughts about who won this fight and what's brewing? We'll excerpt them here (newest comments on top).

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This is a great move for President Bush. The nomination was made from a position of weakness. This will allow him to place a solid conservative on the court — and for America to have the cultural war I have been craving for so long. Why can an openly liberal former president of the ACLU be accepted to the court, but a litmus test is applied to conservatives? The answer is that Democrats dislike the democratic process, always have. — Publius, esq.

What I find interesting is the pundits had it all wrong. Not one that I heard or read thought that she would withdraw. Even David Brooks of the NYTimes expressed the thought that even if she wanted to withdraw Bush wouldn't let her. Does anyone know of a national pundit who did forsee this happening? — soofoocoo

Well, soofoocoo, WaPo columnist Charles Krauthammer laid out a hypothetical "exit strategy" for the White House last Friday in which he suggested "the perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive's prerogatives." Which is more or less what happened, depending on your level of cynicism. A noisy "withdraw now" crowd gathered early this week at the National Review's Bench Memos. So it was a possibility some had considered, if not predicted. — The Eds

While not a great legal scholar, she is intelligent and I believe a sensitive, caring person who played the game well to survive among the good ole boys.... I believe her thinking on advocating greater minority inclusion and her hints on the right to individual choices were sincere and telegraphed a moderate conservative judicial posture to come. Now, I think we are in for tough sledding with a much more clearly conservative, probably woman, ideologue that Bush will push to appease his base and try to bring unity in the face of greater impending crises, without a chance of Dems stopping the nomination. — Nick

Finally! A right wing ideologue who did the right thing! I truly did not believe I would live to see the day. — Jean Bennett

She began as a fanatic — a fanatic syncophant; then she was a nominee to the highest court in the land. Now she is merely a syncophant again. — plato

This has Karl Rove written all over it. Put up a nomination for Supreme Court who is not qualified knowing she will fail and have her withdraw her nomination at the same time a special investigator is to hand down indictments against white house insiders. It certainly gives the press something else to talk about. — Jay Throne

Miers' appointment was doomed ab initio from the left, moderate and right when she declared the president to be "brilliant." Anyone with the appropriate judicial temperament, intelligence, integrity and character would have refrained from making such an inappropriate comment about someone who appears to have been a life long slacker despite a privileged background. When it comes to his brilliance, the White House apparently enjoys reading and believing its own press releases. — emvre

Wow suprised to hear she withdrew her nomination. I dont think she was qualified but still shocked that she didnt make it. — Eric

Now that Bush has caved into the right-wingers again, wonder what kind of person he'll nominate for the Court next? Miers wasn't the best nominee, but she does have qualities that we need on the court  like real life experience in the courtroom. And where is it written that previous judicial exeprience is needed? She could have been a great justice, or not. The GOP senators did to Miers what they cautioned the Democrat senators not to do against Roberts. What a sham the U.S. Senate has become. — Bob

Posted at 07:14 PM on October 27 | Comments (2)

CourtBriefs: The Tipping Point?

Did Miers jump or was she pushed? Conservative commentators and legal observers were lining up against Miers this week. In the Senate, liberals remained mostly mute, but conservatives were also rumbling and grumbling. Here's a look at how the noose tightened:

Monday: The ad buy

Newly formed conservative action group Americans for Better Justice buy $250,000 of TV and radio time for anti-Miers ads. "Conservatives have worked too hard for too long to settle for anything less than our very best on the Supreme Court," ABJ's David Frum tells AP. (Former Bush speechwriter Frum's opposition dates to Oct. 3, when he wrote at the National Review, "There is no reason at all to believe ... that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system to toward the left.") A coalition of groups that includes the Eagle Forum start a website, withdrawmiers.org, with anti-Miers articles and a list of concerns, including her "undefined judicial philosophy" and a "tainted process."

Tuesday: Senators weigh in

Republican senators kept their comments publicly neutral, but already opposition was gathering. On Monday Sen. Lindsey Graham told WaPo that talk of Miers' withdrawal was "wishful thinking, not grounded by reality." And Jay Sekulow of the American Center for Law and Justice noted, "There is not significant opposition in the U.S. Senate, and at the end of the day, they are the only ones who get to vote." But on Tuesday, judiciary committee member Jeff Sessions (R-Ala.) told the NYT, "I am uneasy about where we are." Another conservative senator, John Thune of South Dakota, said, "There is an awful lot of Republican senators who are saying we are going to wait and see."

Wednesday: The speech

On NPR this morning Miers critic Frum cites a 1993 speech (PDF file) that takes a soft line on abortion. "The underlying theme in most of these [abortion] cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense. Legislating religion or morality we gave up on a long time ago," Miers told the Executive Women of Dallas.

National Review's Edward Whelan finds it "disturbing" yesterday: "Her comments reflect such a profound confusion, and such an inattention to the respective roles of the courts and the political branches, that they call seriously into question her fitness for the Supreme Court." The Withdraw Now crowd at National Review's Bench Memos gets rowdy.

Meanwhile, was Senate opposition stiffening? MSNBC reports today that a conservative senator called the White House to say Miers wouldn't make it through the Republican-controlled judiciary committee.

Posted at 09:03 AM on October 27 | Comments (0)

CourtBriefs for Oct. 27, 2005: Rapid Reaction to the Miers De-Nomination

"In a month, who will remember the name Harriet Miers?" — Sen. Trent Lott (R-Miss.) to Fox News

"The radical right wing of the Republican Party killed the Harriet Miers nomination." — Sen. Harry Reid (D-Nevada)

"Harriet Miers' withdrawal...demonstrates that ultraconservatives are so determined to swing the Supreme Court sharply to the right that they pounded their own president's nominee into submission." — Ralph G. Neas of People for the American Way

"It seemed like the hill was getting bigger rather than smaller everyday.... It's not a one-person party." — Sen. Sam Brownback (R-Kansas) to NPR about "mounting difficulties with the nomination"

"I'm greatly relieved. I think Harriet Miers has done the right thing, she's put the president and the party first.... Harriet Miers was not the person the president thought she was." — former Bush speechwriter David Frum to NPR

Posted at 08:04 AM on October 27 | Comments (0)

CourtBriefs for Oct. 25, 2005: Meter Readers

Slate is running an odd racket on the Miers nomination. Correction, that's an odds racket. Emily Bazelon, John Dickerson, and Dahlia Lithwick are co-managing the Miers-o-Meter. Current chances of nomination: 70%. "Expectations are so low that it's still possible for Bush's longtime friend to get the nod: She just needs to perform well enough at her hearings to overcome the negative assessment that has led up to them," noted the Meter managers yesterday. Elsewhere at Slate, former Texas legal editor Mark Obbie takes a skeptical look at Miers' qualifications: "Implicit in the president's loving assessment of Miers' résumé are these assumptions: that lawyers choose their leaders based on merit, and that leading a bar association or a law firm is a position of great respect and honor."

Posted at 03:43 PM on October 25 | Comments (0)

CourtBriefs for Oct. 24, 2005: Pluperfect Perversity

George Will winds a watch stem in yesterday's WaPo. "Such is the perfect perversity of the nomination of Harriet Miers that it discredits, and even degrades, all who toil at justifying it," he opens his opining. Alliteration runs amok in his ripping rebuke of the pro-Miers mindset, and you can't beat Will for sheer cussed consonance and unabashed assonance.

Hugh Hewitt, who has defended Miers in his blog, writes: "Will allowed his love of language to cripple his argument." Objecting to an ur-Willian turn of phrase ("Miers's advocates tried the incense defense: Miers is pious," Will wrote), Hewitt wonders "whether Will intentionally set out to offend."

"Will's meticulous retailing of yawn-inducing epithets" leaves Daffyd at Big Lizards with an "amazed sense of loss, not cowed submission": "I rummaged through George Will's column looking for the big pop; instead, I'm holding just an old maid in my hand: the kernal [sic] is barely cracked, just enough to release its meagre store of steam, not enough to burst open and rattle the pot with its noise."

And Daffyd's smackdown puts Power Line's John Hinderaker into an Oedipal state of mind: "Far be it from me to slight George Will's contributions to the conservative movement, but it's time to recognize, I think, that the torch has passed to a new generation."

Texas Tales: John Fund weaves a woozy story at Huffington Post involving Swift Boat attack artists, Lottery Commission investigations, and Texas Air National Guard allegations. Writes Fund, "The bizarre maneuverings behind the Miers nomination threaten to take the confirmation hearings far afield from a discussion of constitutional law and judicial philosophy."

Posted at 03:28 PM on October 24 | Comments (0)

CourtBriefs for Oct. 20, 2005: Get Me Rewrite!

Turns out grammar-snob bloggers (see yesterday's CourtBriefs) aren't the only people quibbling with Miers quotables. Sen. Arlen Specter sent a judiciary committee questionaire back to Miers yesterday for "amplification." "There's been more controversy before this nominee has uttered a formal word than I have ever heard," he said.

Stephen Taylor at PoliBlog makes the obvious point: "This doesn’t help the PR battle over this nomination." But Jonathan Adler at Bench Memos was paying attention during the Roberts hearings, and notes, "Readers may recall that John Roberts' questionnaire neglected to include some of his pro bono work and some media interviews. So the issue — insofar as there is one — is whether the deficiencies in Miers's questionnaire are greater than one would normally expect."

Ann Althouse is scratching her head to come up with reasons why people support Miers. She has six, including "1. Some folks must just love Bush, the man. They're fans!" Responds reader Paul Zrimsek: "7. Some people believe that all you professors and pundits who've been griping about Miers' failure to resemble a professor or pundit need to get over yourselves."

Some people who resemble law professors are hashing out this law-professorial question at Huffington Post: If Miers tumbles, can retiring Justice Sandra Day O'Connor stay? Most say yes, though University of Michigan law prof Richard Friedman reasons, "I don't think she can rescind. I think the retirement letter commits her to its terms as soon as it is delivered. Otherwise, the retiring justice would have control over the choice of her successor, and that can't be right."

Jonathan Last gets in today's post-bell punch (via the Blogometer):

"Those who voted for George W. Bush were promised a mind like Scalia's for the Supreme Court. Instead, they've been given a mind like George W. Bush's."

Posted at 02:23 PM on October 20 | Comments (0)

CourtBriefs for Oct. 19, 2005: Reads, Tea, Leaves

While some serious people pore over the Miers papers looking for clues to her views on abortion or judicial restraint, others are on the prowl for unnecessary punctuation. "If Miers had written Brown v. Board, the doctrine of "separate but, equal" would be unconstitutional," notes a punctilious blogger at Conglomerate. Jim Lindgren looks past the grammar at Volokh Conspiracy:

Everyone makes mistakes in writing (I certainly do) and nobody is perfect. But in reading Miers' writing, I keep looking for a spark.

Left Logic: Blogland has been buzzing with talk of conservative contretemps over Miers' pro-life credentials. Ann Althouse glances left and asks, "Will pro-choice Senators continue to fail to oppose Harriet Miers now that that we have seen the survey she provided to Texans United for Life in 1989?" Her answer: "The Democrats tolerate Miers because she seems to lack the qualities that will make her a solid and influential justice, and they are hoping she will fall under the sway of the liberal justices who will court her vote.... In this sense, they are protecting the right to abortion."

Posted at 01:38 PM on October 19 | Comments (2)

CourtBriefs for Oct. 18, 2005: Flip-Floppers

Law profs Michael Stokes Paulsen and John Yoo blast Bush in today's Times:

"The administration's stealth strategy assumes that it is improper for senators to ask, or for a nominee to answer, a question about Roe vs. Wade or any other substantive constitutional question. This has things exactly backward. The Constitution not only permits such questioning, it arguably requires it."

What question would they ask? "Ms. Miers, what do you think of Roe vs. Wade?"

She Supports Roe — Except She Doesn't: Here's a head-scratching revelation and retraction from Sen. Arlen Specter, the judiciary committee chairman. After meeting with Miers yesterday, Specter told reporters "She said she believes there is a right to privacy in the Constitution" — and specifically that she agreed with two cases, Griswold v. Connecticut and Eisenstadt v. Baird, that formed the basis for Roe v. Wade. But after a call from Miers, Specter's spokesman issued a retraction, saying the senator had "misunderstood her and that she had not taken a position on Griswold or the privacy issue."

Confirm Them, Except for Her: Specter's unexpurgated comments convinced Andrew at RedState's Confirm Them blog to switch sides. "The Griswold case marked the beginning of our long, winding road into judicial control of the most fundamental aspects of American life," he announced in a post titled "Why I Won't Be Supporting the Miers Nomination." Objection withdrawn?

Posted at 10:47 AM on October 18 | Comments (1)

CourtBriefs for Oct. 17, 2005: Roe-down

Remember when Focus on the Family head James Dobson said he was backing Miers because of "some of the things that I know — that I probably shouldn't know"? Now John Fund at OpinionJournal thinks he knows what Dobson probably shouldn't. He cites notes by two sources who joined an Oct. 3 conference call with Dobson and a who's who of religious leaders:

"Two of Ms. Miers's close friends — both sitting judges — said during the call that she would vote to overturn Roe."

The friends, according to Fund: Justice Nathan Hecht of the Texas Supreme Court and federal Judge Ed Kinkeade. Also present at the call: Gary Bauer, Tony Perkins of the Family Research Council and Paul Weyrich of the Free Congress Foundation. What will it mean for the hearings? "A spectacle," Fund predicts.

Armando at Daily Kos is calling for a Dobson subpoena. Crooks and Liars is predicting a Dobson-Specter Senatorial showdown.

Cheneying his mind: Rush Limbaugh, who had a pointed talk with the Veep last week (see below), writes in OpinionJournal:

"The Miers nomination shows the strength of the conservative movement. This is no 'crackup.' It's a crackdown."

The importance of thank-you notes: To everyone who's ever waited in vain for a birthday card from an ungrateful grandson, The Smoking Gun has the goods. The Bush-Miers notes are a window onto a time when yearbook-worthy sentiments could get you a nomination to the Supreme Court. Though if we remember correctly from 8th grade, isn't "Have a great life!" as Bush wrote to Miers in 2000, code for "In high school, I'm going to pretend I don't know you"?

Stuart Taylor Jr. has read those notes, and he writes at National Journal:

"The burden of proof should be on the nominee and the White House to show that Miers at least has a first-rate mind, sound judgment, and strong rhetorical skills."

In other words, "We should totally hang out more." Not.

Posted at 12:15 PM on October 17 | Comments (0)

CourtBriefs for Oct. 10, 2005: Da Lynch Mob

Conservative angst continued over nominee Miers continued last week and over the weekend:

Powerline blogger Paul Mirengoff lifts the lid on the right-wing stink in a column for the Daily Standard. "Conservatives justifiably feel disappointed that they should have to rely solely on the president's legal and psychological acumen as they try to become comfortable with his nominee," he writes. The Powerliner's lineament: Forget the issues, cling to power. Once the confirmation fight starts, "the issue for conservatives no longer will be whether we are disappointed, but rather whether Miers should be confirmed."

Wacky ideas file: Meanwhile, Richard Miniter at National Review Online compares Miers' record to, wait for it ... right-wing talk-show host Laura Ingraham's.

The point is not that Laura Ingraham should have been nominated instead of Harriet Miers, but only that Miers is a perfectly competent but ordinary lawyer and that there are many more accomplished women with resumes better suited for the U.S. Supreme Court.

Such as ... Laura Ingraham.

Jack Balkin chalks the struggle up to the bright line between movement conservatives and business conservatives. "Presidents don't choose this kind of nominee because they want a revolution. They choose them because they will give the executive a free hand, and, perhaps most important, because the nominee will help ensure a pro-business climate," he writes at his blog, Balkinization.

Voice in the wilderness: One movement conservative who has come out in favor of Miers is James Dobson (see "Uniters," above). Lefty blogger Armando at Daily Kos transcribes the doctor's prayer — "If this is not the person you want on that Supreme Court, all you have to do is tell me so, and do it through any means you want to" — and stirring revelation: "It was leaked to the media that I've had conversations with Karl Rove and the White House, which is true.... I can't reveal it all, because I do know things that I'm privy to that I can't describe, because of confidentiality."

Now Sen. Chuck Schumer is wondering on CBS' Face the Nation, "I think Karl Rove ought to let the public know what kind of assurances he gave James Dobson. This is not a game of wink and whisper." Will testimonial turn to testimony?

James Walcott turns overripe one-liner into extended metaphor:

"Harriet Miers is George Bush's Miss Jane Hathaway. Miss Hathaway, archeologists will recall, was Mr. Drysdale's prim, devoted secretary on the Beverly Hillbillies.... Unfortunately for President Bush, Mr. Drysdale is no one's idea of a model executive."

Read the rest of "CourtBriefs for Oct. 10, 2005: Da Lynch Mob."

Posted at 12:17 PM on October 10 | Comments (0)

LiveCurrent Readers Respond

A sampling of reaction on LiveCurrent to the Miers nomination:

The Miers nomination is Bush at his most devious. "Take my underqualified crony or you'll wish you had. I've got a deck full of Scalias and Thomases up my sleeve." — David Howard. Bingo. At last someone hits the ball squarely. — Jimbo

For a man who got everything in life by connection and not by competency, why is everyone so shocked that Bush picked someone connected to him? Competency is never a criteria for "Republicrony" party. — dinantay

I, for one, am happy that she does not have judicial experience. Judges become insulated from the reality of the practice of law. I also find her background interesting. Although she is pro-life (or anti-choice, whichever you prefer), she worked pro-bono, encouraged law firms to represent indigent people, hired women at her law firm and overall, appears to be a decent person. — RN

What's her problem with mascara? — detmolders

Read the rest of "LiveCurrent Readers Respond."

Posted at 05:55 PM on October 06 | Comments (8)

Note: Entries below refer to the nomination of and hearings on John G. Roberts, the newly be-robed chief justice.

Posted at 12:00 AM on October 03 | Comments (0)

Simpatico Supreme

My colleagues in this discussion have much more experience in watching justices develop, and they have offered wise insights. I don't want to repeat their comments, but I'd just like to add that history shows that new justices on the Court tend to disrupt voting blocs, not only by their own vote, but also as the other justices attempt to persuade the new justice by showing their own open-mindedness and willingness to compromise.

I'd guess Chief Justice Roberts will be to the left of Chief Justice Rehnquist on a number of issues, but paradoxically he will move the Court slightly to the right. This is because he will be a better coalition-builder, and because he is more interested in persuasion and moderation. In the Rehnquist Court, O'Connor and Kennedy were sometimes alienated by Scalia and Thomas, and increasingly they swung to the moderate left bloc. Rehnquist generally aligned himself with Scalia and Thomas. My guess is that Roberts will be able to shake up the voting blocs, and that he will reach out to Kennedy, O'Connor and her replacement, and bring them on board more conservative decisions. He may even be able to persuade some of the four moderate left justices through compromise and dialogue.

Whether you're on the left or right, you'll win some and you'll lose some in this new dynamic. But given the recent sharp increase in 5-4 decisions on the Court, a renewed commitment to consensus is good for the Court and good for the law.

Posted at 11:03 AM on September 21 | Comments (1)

If He’s Sincere, He Could Be Great

It is almost impossible to say much about Judge Roberts with a high degree of confidence. I think we can rule out the idea that he is an originalist (someone who interprets the Constitution according to the purported intent of the framers) in the Scalia/Thomas mold. His statements distancing himself from their flawed jurisprudence were emphatic. But this does not rule out the possibility that Roberts will prove to be a conservative ideologue of a non-originalist sort, as Erwin Chemerinsky suggests.

To be sure, Roberts claimed to be a pragmatist and he paid obeisance to stare decisis. But nominees — even Supreme Court nominees — tend to say whatever is necessary to get confirmed. Just look at how quickly Clarence Thomas turned his back on the jurisprudential assurances made at his hearing, or the truth-stretching responses that William Rehnquist gave when he was nominated to be chief justice. That said, if one gives Roberts the benefit of the doubt, he could turn out to be a much better justice than Rehnquist, the one to whom he is most often compared. While their voting patterns may prove similar, especially in the short run, Roberts has marketed himself as someone much more deeply committed to legal reasoning, open-mindedness, and judicial diplomacy than Rehnquist was, especially during his tenure as chief justice. These are valued qualities in conservatives and liberal alike — and we just have to hope Roberts was sincere when espousing them.

In sum, while I fear the worst (see Erwin Chemerinsky's views), I'm keeping an open mind that this very, very intelligent man will be receptive to the views of his colleagues and to new ways of thinking about the law. If so, he could prove to be a very effective and admirable chief.

Posted at 10:30 AM on September 21 | Comments (1)

He Won’t Let Justice Get in the Law’s Way

John Roberts will make a splendid chief justice. His pledge to the Senate and the American people is to apply the law as written, resolving doubt or ambiguity in favor of settled law and expectation, and wherever legislative policy choice is not contrary to individual right secured by constitutional text or deeply held tradition, in favor of the choices made by elected representatives. This may well be similar to the posture taken by the late chief justice, and that is to the credit of his happy memory, but it is also precisely the role anticipated for the judiciary by the founders and by the text of Article III of the Constitution, itself. It is a view that comes now with fresh enthusiasm and with demonstrable collegiality that has the potential to be appealing well beyond the standard conservative or liberal alignments.

I am convinced that none of the justices set out to navigate personal voyages of discovery that permit the importation of personal view as law, but under the last three chief justices — Warren, Burger, and Rehnquist — it happened too frequently. With John Roberts in the center seat reminding his colleagues ever so effectively and persuasively of the importance of fidelity to the judicial role, liberal and conservative activism will have less resonance.

Read the rest of "He Won’t Let Justice Get in the Law’s Way."

Posted at 09:28 AM on September 21 | Comments (0)

Rehnquist Resurrected. Next!

John Roberts is a man who has not revealed his personal views publicly his entire life. He pledged to follow the rule of law at his hearings. I think we can be absolutely certain that he is not an ideologue; no ideologue would have resisted the many temptations presented to him during his career to show such a tendency. Thus, this is not an appointment in the mold of Justice Scalia or Thomas. He is, in virtually every respect, likely to be a 1-to-1 trade for Chief Justice Rehnquist, at this point in time, but all indications are that he will be thoughtful and more open to a wide array of arguments than the Chief was.

The vital question is who will replace Justice O'Connor, if one wants to chart the Court's future. It has been disappointing that the White House has focused on such a small number of women, as though there are not enough qualified Republican women out there. Once Roberts' confirmation was a fait accompli, one would have thought there would have been a lengthy list of distinguished Republican women to consider. In the absence of such public speculation, one can only wonder if the list of white males under consideration for the Roberts nomination is still in play. Female or male, this is the seat that could cause a dramatic change in the Court if an ideologue is nominated.

Posted at 12:42 PM on September 20 | Comments (0)

A Lawyer’s Chief Justice

In brief, I have high hopes for Chief Justice Roberts. He’s both excellent and modest -- two wonderful attributes.

My hope is that he’ll be a lawyers’ Chief Justice, in the sense that he’ll be exceedingly careful and honest with legal doctrine. I also suspect that in many ways he’ll work well with Justice Breyer, who is similarly excellent, not very ideological, and pragmatic.

To be sure, it’s possible that he’ll surprise us, for the worse. (Who would have suspected the constellation of views that we’ve seen from Justice Thomas?) But there’s a good chance that he’ll combine quality and character with judgment as well.

Posted at 11:25 AM on September 20 | Comments (0)

When He Gets Older, Losing His Hair, Many Years From Now...

John Roberts is 50 years old and if he remains on the Court until he is 85, the current age of Justice John Paul Stevens, he will be there until the year 2040. That, alone, causes pause in making predictions. Yet, if one had made a prediction about William Rehnquist when he went on the Supreme Court in 1972, it would have been that he would have been very conservative and a consistent vote against school desegregation, women’s rights, protections for criminal defendants, and other civil liberties. That is exactly who he was for 33 years on the Supreme Court.

Those who care about civil liberties and civil rights can only hope that John Roberts does not follow in Rehnquist’s footsteps in this regard. Unfortunately, throughout his career, Roberts has urged lessening constitutional protections for reproductive freedom, for racial minorities, and for the separation of church and state. There is absolutely nothing in Roberts’ record as a lawyer or a judge to provide a basis for optimism in any of these areas. Nor did Roberts say anything at his confirmation hearings to lessen concerns about his likely votes on these topics as chief justice. He refused to explain his views on these and most other issues at the confirmation hearings.

Thus, there is nothing to do but hope that on the Court, over time, he will be much better than his prior record would indicate.

Posted at 10:43 AM on September 20 | Comments (4)

Our Unsettled Expectations About John Roberts

Now that a most soporific set of Senate hearings have lumbered to a close, it looks that John Roberts will be confirmed as Chief Justice of the United States Supreme Court. The most that the Democrats can say against him is that his statements have not been sufficiently forthcoming on matters of great public importance, so that they must vote no because they cannot give him a vote of confidence. But arguments that weak will not in the end prevail, for they sound just like a wounded plea that if we can’t get our agenda confirmed by a new Chief Justice, then we will take our marbles and go home.

Fortunately, the nation will move on, and our question is what can sort of expectations should we have of a future Chief Justice who has made settled expectations the centerpiece of his own nomination defense. On that question, we have some reason to be confident that he will do just fine, both as a Justice who votes and as a Chief Justice who administers the Court.

Read the rest of "Our Unsettled Expectations About John Roberts."

Posted at 11:19 AM on September 19 | Comments (0)

House Rules

OK, now that we’re shifting metaphors from baseball to gambling, I see that Professor Epstein is upping the ante. The party line has been that nominees should not give clear answers in order to keep their minds open in future cases. Sure, they shouldn’t commit themselves one way or the other, but I still do not understand why this prohibits the nominee from reflecting and discussing the issues in general.

Professor Epstein contends that “judicial independence” is on the line: “We should all be prepared to roll the dice, that is to take a chance on the nominee, because any other position is wholly inconsistent with our basic notions of judicial independence.” The Senators indeed are rolling the dice, and so are all of us.

In the current confirmation rules, presidents load the dice. They get to interview as many candidates as they like in private, and they rightly will not tap the ones who refuse to answer questions. They give the job to the candidate who tells them what they want to hear, and whose references vouch for their ideological leanings. If Senators' questions would undercut judicial independence, then why doesn't the President's interview process do the same? Because it's in private? That's no real distinction.

Under Epstein's logic, questioning judges is a threat, no matter what form. I respectfully disagree. The threat to judicial independence is not vetting them before they get on the bench. The threat is political pressure after they get on the bench, and life tenure and judicial supremacy are pretty powerful shields. Before the elected branches give a judicial nominee such powers, it's only fair to ask a few questions and get a few real answers.

The current nomination process creates a tremendous inequality of information and a skewing of incentives. Under the current rules of the game, Senators can’t ask questions to make the game a little less skewed. That’s the game, and the Democrats on the Judiciary Committee knew when to walk away, and knew when to run. I agree with Professor Chemerinsky that the Democrats bear a lot of responsibility for not getting answers, because they basically ran away from the job.

Posted at 12:48 PM on September 16 | Comments (2)

Playing With Loaded Dice

As the confirmation hearings conclude, a few moments of exasperation reveal all that is wrong with the current process. Take Senator Biden’s unhappiness at not getting a straight answer from John Roberts on his view of the right to die: “Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the diced with you, Judge.”

In a sense that is exactly what we want Sen. Biden and every other senator to do. The insistence that Biden can have on this issue is not unique to him. Notwithstanding the royal we, there are other senators who will rest easy only if they hear an answer that is dead opposite to that which Biden might wish to hear. A full discussion of the philosophical or constitutional issues could take extensive time to unpack, because even those people who are in favor of the right to die, are unhappy with various forms of assisted suicide and active euthanasia, which are currently illegal. Yet it takes a certain amount of ingenuity to draw the relevant distinctions between those actions and the withdrawal or cessation of treatment at the request of the dying patient or his or her guardian.

In other circumstances, I would like to hear what Roberts has to say, but not here. Sen. Biden should be in the same position as the rest of us. We should all be prepared to roll the dice, that is to take a chance on the nominee, because any other position is wholly inconsistent with our basic notions of judicial independence. There is a real danger to ask for an explanation of a nominee’s position on an issue when what is really sought is an implicit declaration that you will come out this or that way on in some future case. All candidates should keep mum on these matters.

Which leads to the larger question: Why have the cross-examination at all if the obvious answers are known in advance and all else is rightly platitude? Perhaps the hearings are needed for public education. But it is steep tuition to have to listen to various senators pontificate at length. No wonder these hearings are relegated to C-SPAN3.

Posted at 04:30 PM on September 15 | Comments (0)

CourtBriefs for Day 4: Garbage Time

The final score won't be in until the Senate votes in a week and a half, but it's looking like a Harlem Globetrotters-Washington Generals matchup. At 4:05 p.m. PT, Arlen Specter wraps up the hearings, giving senators a gold star for attendance. "Senators are very busy.... The attendance has been ... very good." Adds Sen. Leahy: "We have as strong a record [from Roberts] as we're going to have." He emotes: "I do love my country. I wouldn't serve here if I did not," recalling: "My parents came here from another country not speaking the language." And now here I am, speaking a language spoken only by 99 other people.

Harvard's Alan Dershowitz is making predictions at the Huffington Post about what kind of chief justice Roberts will be. Here's a taste:

1. He will not overrule Roe v. Wade...
2. He will dramatically lower the wall of separation between church and state...
3. He will uphold the death penalty against both substantive and procedural challenges...

What Dershowitz doesn't know: "I won't try to predict whether he will remove those ridiculous Gilbert and Sullivan stripes that Rehnquist sported. I think he will be of two minds on that issue." There's still time to get Roberts on the record. We know his answer: "I can not comment on cases that may come before the court. But as a fan of 'Doctor Zhivago' I'm definitely leaning toward furry white hats."

Indefatigable live-blogger and NPR correspondent Tom Goldstein gets loopy at SCOTUSblog.

2:38 - Judge Lindberg is up. She worked previously at Hogan & Hartson. She likes John Roberts.

2:33 - Ms. Tallman of MALDEF is up. They don't like Roberts.

2:29 - Katheryn Webb Bradley testifies as a Democrat who likes John Roberts. She was a clerk to Byron White and saw cases argued by John Roberts. She then worked with him at Hogan & Hartson. She really liked him. He would answer her questions. He did a moot court at her request. He told her the arguments he thought would win. He wasn't trying to use the case to advance an ideological agenda. (Sometimes these proceedings are majestic; other times, not so much.)

2:27 - Carol Browner apparently doesn't have an opinion on John Roberts.

2:27 - She likes citizen suits.

2:25 - She likes the Commerce Clause too.

2:22 - Carol Browner is up. She likes the environment.

Posted at 04:13 PM on September 15 | Comments (0)

The Democrats Let Him Duck

Senator Joseph Biden was exactly right: The Roberts hearings have been a charade, an exercise in Kabuki theater. ("With all due respect, you've not — look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them," Biden said Wednesday.) For two days, Roberts has shown that he is intelligent and articulate, but has refused to answer any questions about his views. He wouldn't express his views about Bush v. Gore, or the Second Amendment, or constitutional protection for sexual privacy, or abortion rights, or affirmative action, or the separation of church and state.

But the Democrats let Roberts get away with this. Not once did a Democratic Senator indicate that without answers to questions, he or she would vote against John Roberts. Not once did a Senator challenge Roberts' assertion that it would be inappropriate for him to express his views on these questions.

Read the rest of "The Democrats Let Him Duck."

Posted at 07:44 AM on September 15 | Comments (6)

It's Called Law, Not Justice, Senators

Several times on day 3, Senators Feinstein, Biden and Schumer all asked what John Roberts' personally thought about past cases and even about the most difficult of human conditions — such as end of life decisions for a family member. Each Senator wanted this highly personal and individual perspective, they said, so that they could know John Roberts' philosophy of life, which presumably they believe is relevant or perhaps even should or might govern legal outcomes. With all due respect, these members are still confusing the Supreme Court for a supreme moral or policy oracle. The reason John Roberts' politely declined to answer each of these inquiries into personal philosophy is not because they are unimportant as a matter of morality, but because judicial ethics and the very separation of powers would make answering them deeply mistaken.

Read the rest of "It's Called Law, Not Justice, Senators."

Posted at 07:37 AM on September 15 | Comments (4)

If He's Working from the Bottom Up, What Are His Tools?

Roberts has masterfully avoided answering any tough questions, hiding behind a Ginsburg non-precedent that also makes little analytic sense. Meanwhile, Democrats have done a pathetic job pushing him on this point. Roberts' repudiation of the jurisprudence of original intent was welcome, but it raises the following question: Roberts says that he has no overarching judicial philosophy and that he's a "bottom-up," pragmatist judge. But how does Roberts go about deciding which interpretive tools to use in which types of cases?

One of the most troubling aspects of the modern court has been the way some justices pick whatever interpretive tool just happens to get them to the result they want to reach rather than using consistent methods of interpretation even when they lead to results that the justice might not favor as a matter of policy. It would be nice if Roberts would address this potentially significant problem. That said, Roberts has provided Democrats with little basis for rejecting him on ideological grounds and considerable reassurance that, while very conservative, he would make a thoughtful Chief who understands the importance of providing compelling justifications for the exercise of anti-democratic judicial power.

Posted at 04:39 PM on September 14 | Comments (1)

CourtBriefs for Day 3: Shoegazing

Sen. Arlen Specter: If you can read this you're too close.

If the shoe does not fit....: Did Roberts just trip over his shoelaces? Did he put his wingtip in his mouth? You be the judge. On Tuesday, Sen. Arlen Specter asked about Roberts' involvement in a gay rights case in Colorado, and he responded:

ROBERTS: "I was asked frequently by other partners to help out, particularly in my area of expertise, often involved moot courting. And I never turned down a request. I think it's right that if there had been something morally objectionable, I suppose I would have. But it was my view that lawyers don't stand in the shoes of their clients and that good lawyers can give advice and argue any side of a case."

Today, Roberts argued he would be a compassionate Chief Justice because he has represented a number of different clients:

"I've been in that person's shoes.... I've been on the other side of the podium with a case just like theirs."

So he can't wear his clients' shoes, but he can wear other lawyers' shoes? So which is it, Judge Roberts? Shoes or no shoes? Heels or flats? Docksiders or Clarks? Sandals or flip-flops? CourtBriefs bangs its oxford on the desk and demands to know!

Sen. Joe Biden: Jazz hands!

At 2:30 p.m. PT Republican Senators waive a third round of questioning, but Democrats wave wildly. There will be a third round, starting Wednesday and finishing Thursday. We'll be starting the Wave if there's anybody left in the stands. 1...2...3...Everybody up. UPDATED: Orrin Hatch expects vote by Thursday, Sept. 22.

Sen. Tom Coburn: Tearing it up

At 3:20 p.m. PT, Sen. Tom Coburn (R-OK), not crying, defends Roberts' record. "I want lawyers who will take the wrong cases for the right people."

At 3:24 p.m., Coburn, still holding it together, says Americans' are losing confidence in the judiciary. "Would you teach the American people where our law came from?"

At 3:27 p.m., Coburn, lip staying stiff, discusses the religious basis of "natural law." Adds, "I believe you've been very strong today." Ends his questioning dry-eyed.

Roberts reveals top-rated films on his Netflix list, if he has one: "Dr. Zhivago" and "North by Northwest." Maybe he would also enjoy "The Bridge on the River Kwai" and "Out of Africa."

Posted at 03:16 PM on September 14 | Comments (0)

Legalize Him, Don't Criticize Him

Except for the sheer pleasure of listening (and learning) from John Roberts, my own inclination — were I a member of the Senate — would be to adjourn the hearings, recommend Roberts to the floor without qualification, and then, watch a legacy-setting unanimous approval of a U.S. Supreme Court Chief Justice in modern time unfold.

Read the rest of "Legalize Him, Don't Criticize Him."

Posted at 12:43 PM on September 14 | Comments (0)

Q: Is Roberts Consistent?

Driving and listening on the radio today, I noticed an apparent contradiction in Roberts' reasoning. I would very much appreciate any insight you might be able to provide.

On the one hand, Roberts indicated something to the effect that he thought it important to make judicial decisions based on the "intent" of the language of the Constitution and the law. There was then discussion about the difficulty in interpreting "intent," especially if a long period of time had passed. Roberts then seemed to clarify that if the legislators included specific outcomes or effects in the law, then he would consider those, too, in his deliberations.

On the other hand, Roberts rejected the legality of legislated "quotas."

My question is: Is Roberts consistent? Would not a legislated quota be an "effect?" So would Roberts — to be consistent with his foundation that we need a separation of powers, and legislators make policy and law, and judges only interpret and apply — so why would Roberts reject an "effect" in the form of a quantifiable quota?"

Jed Shugerman responds:

Sharp listening and analysis! If I understand the question, the answer is really the distinction between constitutional law and statutory law. The Constitution trumps statutes, so that the Court strikes down acts of Congress that it finds unconstitutional. Justice Roberts believe that the "equal protection" clause of the 14th Amendment, ratified in 1868 to extend civil rights to African Americans, prohibits racial quotas. The Supreme Court has ruled against sharp quotas since Bakke v. UC Regents in the late 1970s, and restated an even stronger position against admission "points" for race in Grutter v. Bollinger in 2003.

Thus, if legislators intend quotas as a formal mechanism, they are unconstitutional under Supreme Court interpretation of the 14th Amendment. I suppose one might find a fuzzier area if a legislature enacts a law that creates quotas only as a secondary effect, and not as an explicit rule. But if Judge Roberts interprets the 14th Amendment to bar both formal and informal quotas, I don't think he's being inconsistent. Nevertheless, the Senators should keep pressing Roberts about his questionable record on race, civil rights, and voting rights.

Posted at 08:08 AM on September 14 | Comments (2)

Talk to Us, Judge

Like Rickey Henderson, Judge Roberts is crouching to keep his strike zone tiny. Ruth Bader Ginsburg did us all a disservice by saying the silly things she did in her hearings about not giving clues or hints, especially since she ended up — as Jed and I and others have pointed out — being much more forthcoming than her stated approach to answering questions would have suggested. (Do as Ruth Bader Ginsburg did, Mr. Roberts, not as she said!)

And I still scratch my head when I try to find coherence in the idea — floated by Ginsburg and seized on by Roberts — that it's OK to talk about past cases the nominee has already talked about outside the Senate, but not OK to talk about cases as to which the nominee has views that have thus far remained unspoken, except perhaps to his friends in various Republican administrations over the years!

I actually thought Senator Lindsey Graham (R-S.C.) was completely right Monday when he said, effectively: "President Bush advertised a conservative judicial philosophy twice in Presidential elections, and the American people bought it. So if Roberts is conservative, that's democracy in action." I agree, but shouldn't democracy also involve transparency? Shouldn't the administration and the nominee now show the American people what they have purchased? Or are is the Administration afraid that the American people might have buyer's remorse if they see the product in more detail than they have ever before (insofar as most folks never really read the dreadfully tedious Supreme Court decisions themselves)?

My own view is that Roberts should be candid in discussing his likely doctrinal conservatism, he should get an up-down vote on the floor, and he will (should?) get confirmed because the Republicans have, after all, won a few elections.

Posted at 07:55 AM on September 14 | Comments (0)

CourtBriefs for Day 2: Never Ending or Beginning

From the full-circle file: Senators who talk about bloggers who blog about Senators. Sen. John Cornyn (R-TX) is bloggin'! He refers to Jim Lindgren's umpire-analogy analysis on the Volokh Conspiracy from yesterday (see CourtBriefs for Day 1). Under pressure from the blogosphere, Roberts admits his umpire analogy isn't as obvious as it at first appeared, picks option #2. Thereby causing bloggers to blog about Senators who talk about bloggers etc.

Meanwhile at Legal Affairs, Mark Tushnet and Jeffrey Rosen debate the largely academic question "Can liberals oppose Roberts?"

Tushnet: Yes. ("The president does not choose someone who has a judicial philosophy with which the president disagrees. Neither should a senator.")

Rosen: Yes, but not the way Tushnet says it. ("I think your proposed standard — that a senator should not vote to confirm a nominee who has a judicial philosophy with which he substantially disagrees—is impractical and politically unwise." "[It] would result in more or less even partisan divisions on most Supreme Court nominees and lower court nominees.")

Dahlia Lithwick cracks wise at Slate:

"Today's hearings are not about the candidate. They are about the majesty and superiority of the Senate. Sen. Ted Kennedy, D-Mass., describes these proceedings as a 'job interview with the American people.' But in what solar system would a four-day job interview include a solid day in which the interviewer talks about himself?"

From the Democracy at Work file: At 6:09 p.m. ET, Tom Goldstein at SCOTUSblog reports, "I went downstairs to watch the proceedings. 90% of the press seats are empty. 50% of the public seats are empty. The Senators other than Specter and Leahy who have asked questions are gone."

More from the Democracy at Work file, courtesy of an afternoon exchange between Sen. Lindsey Graham (R-S.C.) and Roberts:

GRAHAM: I imagine the reason that you argued different positions is because people paid you. Is that correct?

ROBERTS: That's how I made my living, Senator.

GRAHAM: OK. I can relate to that.

Posted at 04:28 PM on September 13 | Comments (0)

Stop Ducking in Public

Erwin Chemerinsky is a Alston & Bird professor of law and a political science professor at Duke University.

John Roberts repeatedly has refused to answer questions about constitutional protection for abortion, about the scope of privacy protections, about the constitutionality of term limits, about gender equality, and other topics. He says that he cannot express views about matters that will come to the Court. I want a senator to ask him why not?

There are a few possible answers. One is that he has no views on the subjects. But that is not credible since he wrote briefs in almost all of these areas taking consistently conservative positions. Another possible answer is that his views on the constitutional issues have no bearing as to how he will vote on the Court. But no one believes that. A justice's beliefs about whether Roe v. Wade was rightly decided or whether equal protection applies to gender discrimination very much determine how he or she will vote on the Court.

Read the rest of "Stop Ducking in Public."

Posted at 01:34 PM on September 13 | Comments (0)

Katrina vs. Roberts

Richard Epstein is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago.

I have it on good authority that today was the first day of the Roberts hearing. But my own work schedule made it impossible to see those hearings, so I checked in on CNN to catch some glimpse of the proceedings. What I saw was an instructive surprise. The entire coverage was devoted to Katrina, and the progress of recovery in New Orleans after the horrible storm. The only text that one saw with respect to the Roberts hearing was in the moving text located below the main story. This is one hearing which was moot.

Overall, I regard this as a healthy development.

Read the rest of "Katrina vs. Roberts."

Posted at 10:06 AM on September 13 | Comments (0)

Judging by Machine

Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

At the risk of belaboring the "umpire" metaphor, like Professor Shugerman, I'm a big fan of John Hart Ely's process-based justification for the activism of the Warren era, but I seriously doubt that Ely would agree that figuring out when courts need to aggressively protect the channels of democracy is much like figuring out whether a pitch has nicked the outside corner of the plate. One requires extrapolation and judgment about the purposes of the Constitution; the other could be done by a machine.

Posted at 09:52 AM on September 13 | Comments (0)

You Know Better, Ref!

Erwin Chemerinsky Erwin Chemerinsky is a Alston & Bird professor of law and a political science professor at Duke University.

A person with John Roberts' intellect and experience knows that analogizing a Supreme Court Justice to a baseball umpire is false and misleading. The Supreme Court decides the rules and, in fact, even determines the line-up by deciding what cases to hear. Most importantly, the analogy obscures the tremendous discretion that Justices have to decide the meaning of the Constitution. Deciding whether diversity is a compelling interest to justfiy affirmative action, or whether there is a right to abortion, or whether a vouchers program violates the Establishment Clause is nothing like calling a runner safe or out. A Supreme Court decision is not simply observing a fact, it is making a value choice about what the Constitution means.

Roberts' analogy should make it more difficult for him to refuse to answer questions about his views about key issues where he is likely to case the deciding vote. A baseball umpire could answer questions about any of his or her likely decisions. So should John Roberts.

Posted at 07:00 AM on September 13 | Comments (1)

The Umpire Strikes Back

Jed Shugerman teaches legal history and politics at Harvard Law School.

In a recent post, Lazarus derided the umpire metaphor. It's worth noting that one of the most influential constitutional theories of the 20th century envisioned justices in this role. The question: How can judicial review by judges appointed for life be consistent with democracy? How can judges overrule the democratic will of the people?

The late John Hart Ely offered an answer that transcended left vs. right: The Supreme Court's role is to intervene to promote democracy. Majorities sometimes abuse their power to block the democratic participation of other groups. Though I don't recall him offering this particular metaphor, the Supreme Court is like a referee or an umpire in enforcing the rules of the game to make sure everyone plays fairly.

Asked & Answered The politics in the hearing room

Ely used this theory to defend the Court's pursuit of desegregation. Jim Crow had marginalized African Americans, and Brown v. Board of Education sought to empower them politically. The defense of political speech and voting rights are easy cases for Ely, and one might use his theory to justify some gay rights cases, such as the striking down of sodomy laws in Lawrence v. Texas.

But the question remains: Will Roberts actually be such an umpire? Roberts' assistance of a gay rights group in Romer v. Evans was a classic case of protecting the democratic process for a minority group. But Roberts wanted to water down the Voting Rights Act in the 1980s, he opposed various measures for racial integration, and he is generally dismissive (to put it mildly) of discrimination claims. But as a judge, Roberts was sometimes more than an Ely-style umpire, as he voted to restrict Congress's power to protect the environment. What was the breakdown in democracy there? The Democrats would be wise to use Roberts' own umpire standard to frame their questions and challenge Roberts on a dubious civil rights record.

Posted at 06:48 AM on September 13 | Comments (0)

CourtBriefs for Day 1: Baseball Is the Inescapable Metaphor

Hearing Room Harangues

Republicans "Hearings for a Supreme Court nominee should not have a political tilt for either Republicans or Democrats. They should, in substantive fact and in perception, be for all Americans." — Sen. Arlen Specter (R-Pa) "No matter how badly senators want to know things, judicial nominees are limited in what they may discuss. The Senate traditionally has respected the nominee’s judgment about where to draw the line." — Sen. Orrin Hatch (R-Utah) "Just because we are curious does not mean that our curiosity should be satisfied. You have no obligation to tell us how you will rule on any issues that might come before you if you sit on the Supreme Court." — Sen. John Cornyn (R-Texas) "The memos you wrote while you were working for President Reagan and Bush 1, in my opinion, reflect a conservative lawyer advising a conservative president about conservative policies." — Sen. Lindsey Graham (R-S.C.) "The people rightly demand judges who follow, not make law. From everything I have seen, Judge John Roberts, you are just the man to fill that need — straight from central casting." — Sen. Jeff Sessions (R-Ala.)

Democrats "This hearing is the only opportunity for the American people to examine what kind of justice John Roberts will dispense, if promoted to the Supreme Court, and the direction in which he would lead the federal judiciary." — Sen. Patrick Leahy (D-VT) "Many of his past statements and writings raise questions about his commitment to equal opportunity." — Sen. Edward M. Kennedy (D-Mass.) "It would be very difficult for me to vote to confirm someone to the Supreme Court whom I knew would overturn Roe v. Wade." — Dianne Feinstein (D-Calif.) "This is a confirmation proceeding...not a coronation. It is the Senate Judiciary Committee’s job to ask tough questions." — Sen. Russ Feingold (D-Wis.) "To me the pivotal question, which will determine my vote is this: Are you within the mainstream — albeit the conservative mainstream — or are you an ideologue who will seek to use the court to impose your views upon us?" — Sen. Charles Schumer (D-N.Y.)

John Roberts started it with his talk of judges as umpires. (Here's a link to the AP's full day 1 transcript. Roberts' testimony is at the end.) Let's get it out of our system now: There were hardballs, curveballs, and even a few screwballs in the opening day of the Roberts hearings. Mostly, Senators and the nominee settled for solid singles, rather than swinging for the fences, counting on the partisan sluggers in the lineup to drive the run home.

Blogging along at home, Ann Althouse caught CourtBriefs' mood when she wrote "I detest listening to Senators speaking." Zoning out to Sen. Chuck Grassley, she wonders:

"The hearing to confirm Justice White only took 15 minutes. Why are the hearings so long now? TV! And now we've got the internet. Grassley mentions BLOGS! Sound the alarm! He tells Roberts that his experience arguing before the Court 'bodes very well in terms of your smoodly transitioning into the Court.' Smoodly? You know, if they can't even bother to pay attention to what they are saying, why should we listen?

While we're set to snark, here are the rules to Red State's nomination drinking game.

The old drinking game gag aside, the Red State crew decries the political deployment of Hurricane Katrina by Sens. Leahy and Kennedy ("shameless"). But doubting Thomas cautions, "I personally think this will be so much sound and fury, signifying nothing. Then again, I went to sleep on Election Night 2000 resigned to a Gore Presidency."

Like LiveCurrent's Edward Lazarus, Jim Lindgren at the Volokh Conspiracy isn't buying Roberts' baseball analogy:

Roberts' comparison of a judge to a baseball umpire reminds me of an old story about three different versions of judicial reasoning, built on the same analogy.
First umpire: “Some are balls and some are strikes, and I call them as they are.”
Second umpire: “Some are balls and some are strikes, and I call them as I see 'em.”
Third umpire: “Some are balls and some are strikes, but they ain’t nothin' ‘til I call 'em.”
Three views of legal reasoning are represented here....

Hey, it made sense to Sen. Sam Brownback (R-Kansas), who said this morning:

And I guess that [baseball metaphor] appealed to me as well from the standpoint of where we are today's American governance, where the legislature can pass the bill, the executive can sign it, but everybody waits and holds their breath until how the court is going to look at this and how it's going to interpret it, because it seems as if the court is the real mover of what the actual law is. And that's a bad thing. The umpire should call the ball fair or foul — it's in or it's out — but not get actively involved as a player on the field.

Thanks, Sam. How 'bout them Royals?

Posted at 05:20 PM on September 12 | Comments (0)

A Lead-Off Single

Jed Shugerman teaches legal history and politics at Harvard Law School.

Judge Roberts’ baseball analogy was a solid lead-off single today. (“Judges...are like umpires," he said. "They don’t make the rules, they apply them. They make sure everybody plays by the rules but it is a limited role. Nobody ever went to a ball game to see the umpire.") He noted that he would call balls and strikes fairly, but not try to pitch or hit. In this judicial pennant race, Roberts's statement was a sweet stroke of populist savvy.

This metaphor may be extended this week when he may have to play hardball with the Democratic Senators. Most of the Democrats were throwing inside fastballs, especially with Senators Kennedy, Feinstein, Biden, and Schumer announcing that they expected direct answers to their questions, and threatening to vote against him if he evaded their questions or was “out of the mainstream.”

Asked & Answered The politics in the hearing room

The Democrats on the committee, who seemed unusually unified, sense an opportunity to define themselves with a fight on the issues, and the politics of the presidential race of 2008 are in play here. Will Biden, Feinstein, and Feingold use this platform to become heroes of the left, and gain an advantage in fundraising and the primaries? And is Sen. Evan Bayh’s warm introduction of Roberts (tantamount to an endorsement) part of his bid to run as a moderate Democrat, or is it just part of Indiana politics?

And Kennedy threw a nasty curveball, invoking Hurricane Katrina: “The powerful winds and floodwater of Katrina tore away the mask that has hidden from public view the many Americans who are left out and left behind.... The tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own.”

This link may seem crass, but it's smart politics, taking advantage of Bush’s biggest liability, next to Iraq. And speaking of liability, it's not such a legal stretch to see how Katrina illuminates issues of tort liability, government liability, transparency in investigating the government, and the problems with federalism, as well as race and poverty. Will Roberts swing away at these pitches, or try to foul them off?

Posted at 04:02 PM on September 12 | Comments (1)

Ya Gotta Be Kidding Me, Ump!

Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

There were no surprises in this morning's opening session. The committee members staked out their expected positions, with the Republicans cheerleading and Democrats expressing either concern or presumptive opposition. On the plus side, a number of Senators actually expressed a vision for the Constitution and the role of judges in interpreting it.

As a nation, we don't think about these matters often enough and those who listened in got to hear some occasionally banal but also important talk. As for Judge Roberts, his opening statement [NOTE: Complete day 1 transcript via AP] was, as expected, eloquent, even moving when he riffed on the metaphor of the endless fields of Indiana and the land of opportunity they came to represent for him. Roberts, however, did strike one discordant note — which especially troubled me in an opening statement that must have been worked over countless times. He repeatedly compared the role of a Supreme Court justice with that of a baseball umpire, who just calls the balls and strikes but does not set the rules or pitch and bat.

I'm all for a measure of "humility" in judges, a phrase Roberts invoked several times. But the umpire metaphor takes this to an absurd extreme. The Constitution is not a rulebook; the due process clause with its vague contours is not the infield fly rule or even the strike zone, which is subject to modest interpretation. Roberts' invocation of this metaphor of unrealistic hyper-restraint raises the "he doth protest too much" concern that lies at the center of the inquiry into what kind of justice Roberts will be. Is he still, underneath, the somewhat caustic and sharply ideological conservative of his youth or the much more polished and modest call-'em-as-I-see-them font of modesty and restraint he now projects?

Posted at 03:33 PM on September 12 | Comments (0)

CourtBriefs for Sept. 12, 2005: Decoding Judicial-Speak

The Times' Maura Reynolds provides a glossary to some judicial terms you'll be hearing this week.

Judicial philosophy Even if senators consider a nominee professionally qualified, they often debate his judicial philosophy. The term is code for political reliability. When Republicans praise a nominee's judicial philosophy, they often mean they are reasonably certain the nominee will agree with them. When Democrats raise questions about a Republican nominee's judicial philosophy, they are often expressing fear that the nominee will rule in a politically conservative fashion. Whatever party is in power usually declares that a nominee's judicial philosophy should not be questioned or considered grounds for rejection. Whatever party is in the minority usually argues the opposite — that gauging a nominee's judicial philosophy is a crucial part of gauging their qualifications for the bench.

Legislating from the bench The Constitution sets up a balance of power in government: Congress passes laws, the president executes them and the Supreme Court arbitrates any disputes. Conservatives argue that judicial rulings that have the effect of making social policy are an improper intrusion of the judiciary into legislative matters, deriding them as legislating from the bench. They point to Roe vs. Wade, the 1973 Supreme Court decision legalizing abortion nationwide, as a prime example.

Judicial activism What both Republicans and Democrats say they fear in a Supreme Court justice. Republicans don't want judges to be active in making rulings on social policy. Democrats don't want judges to be active in overturning existing rulings, especially in the areas of civil and reproductive rights. Judicial restraint What both Republicans and Democrats say they want in a Supreme Court justice. Republicans want judges to be restrained on issues of morality and social policy. Democrats want judges to be restrained in narrowing or overturning existing rulings, especially in the areas of civil and reproductive rights.

Precedent Also referred to by the Latin term stare decisis (STAIR-ee dee-SIGH-sis), which means to stand by a decision. It refers to the legal notion that the law is consistent over time, and that courts should follow the rulings of judges who came before them. When Democrats ask Republican nominees about their commitment to precedent, they are really asking whether the nominee has any qualms about overturning prior decisions unpopular with conservatives — in particular, Roe vs. Wade. Establishment clause The phrase in the 1st Amendment that says "Congress shall make no law respecting an establishment of religion." Liberals generally interpret the establishment clause as calling for separation of church and state. Conservatives generally believe it means the government cannot establish a state religion, but that it permits most public expressions of religious faith.

Commerce clause The language in the Constitution granting Congress the power "to regulate commerce with foreign nations, and among the several states." The clause has been interpreted to permit Congress to pass much of the landmark civil rights, anti-discrimination and environmental legislation of recent decades, the logic being that those issues transcend state boundaries. Some conservatives feel the clause has been too broadly interpreted and have pursued several recent challenges before the Supreme Court. Liberals believe the current Supreme Court has been trying to narrow interpretations of the commerce clause and, by extension, much of the federal government's regulatory powers.

Privacy The word privacy does not appear in the Constitution, and some conservative jurists say that means the Constitution does not guarantee a right to privacy. Other scholars believe a right to privacy is implicit in other guarantees. For instance, the 4th Amendment prohibits "unreasonable searches and seizures"; the 14th Amendment guarantees the right to "due process of the law" before being deprived of rights or property; and the 9th Amendment says that the Bill of Rights should not be read to preclude other, unstated rights. The implied right to privacy was a central rationale for a number of controversial Supreme Court decisions, including the legalization of contraception, abortion and sexual acts between consenting adults, including gays. The debate over whether the Constitution guarantees a right to privacy is often a surrogate for the debate over those decisions.

Posted at 10:39 AM on September 12 | Comments (0)

Asked and Answered

Jed Shugerman teaches legal history and politics at Harvard Law School.

Are Supreme Court hearings a farce or democracy at its finest?

The portrayal of recent confirmation hearings as a farcical game of cat-and-mouse is unfair. True, the first handful of nominees after Judge Robert Bork’s defeat played dodgeball, not hardball. Justice Clarence Thomas claimed never to have discussed Roe v. Wade with anyone, though the decision was announced while he was in law school. However, the two most recent nominees, Ruth Bader Ginsburg and Stephen Breyer, were much more forthcoming.

Asked & Answered The politics in the hearing room

Senator John Cornyn and other conservatives assert that Ginsburg refused to answer the Judiciary Committee's questions 55 times, citing the Code of Judicial Ethics' rule against committing oneself to a position on a matter likely to be before the Court. They suggest that the "Ginsburg Rule" is a nominee's right to refuse to answer any direct question on a legal issue. In fact, Ginsburg's rule was that, if she previously had written on the matter, she answered related questions openly. She and Breyer did not "commit" themselves to particular positions, but they directly answered questions on abortion and many other specific doctrinal questions. Ginsburg was more evasive on the death penalty, which was not an area of her academic expertise.

A convenient distinction? Probably. But the point is that in the two most recent hearings, direct questions on doctrine were fair game. If such questions are out-of-bounds, then let's just pack up and go home, and give presidents a blank check on judicial appointments. It's simply not that helpful to hear abstract queries about stare decisis or "penumbras" posed in a dozen different ways.

For more opinion, see Shugerman's op-ed in today's Boston Globe, where he argues that Senators should filibuster any judicial nominee who refuses to answer their questions directly and candidly.

Posted at 09:27 AM on September 12 | Comments (0)

Don't Expect a Coronation

Erwin Chemerinsky is Alston & Bird professor of law and political science professor at Duke University.

The conventional wisdom seems to be that the Roberts confirmation hearings will be a coronation, with Roberts receiving little meaningful opposition. I am not so sure. No Democratic Senator has yet endorsed Roberts as they are waiting to see what the hearings will bring. What should we look for in listening to the hearings?

Read the rest of "Don't Expect a Coronation."

Posted at 09:20 AM on September 12 | Comments (0)

Back to the Big Issue: Who Will Replace O'Connor?

Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

Vik's comments are right on the money. With Roberts now slated to replace Rehnquist rather than O'Connor, he is more likely than ever (and he was always very likely) to sail through the Senate. Substituting Roberts for Rehnquist looks to be an ideological wash. The big issue remains, as it has always been, who will replace the swing-voting O'Connor. And this raises the question of whether President Bush's next selection will reflect his views about the Constitution and its proper interpretation or, instead, the political exigencies of the moment, as the administration is buffetted by the tragedy in on the Gulf Coast and lack of progress in Iraq.

Posted at 10:51 AM on September 09 | Comments (0)

He Championed the States

Douglas W. Kmiec holds the Caruso family chair of constitutional law at Pepperdine University. He headed the Office of Legal Counsel for President George H.W. Bush, a position held by William Rehnquist in the Nixon administration.

The Chief Justice was a gracious man. Awkwardly timid for a man of great intelligence and importance, he was unfailingly kind and personally interested in others.

When he addressed the law graduates of the Catholic University in Washington, D.C., some years back, he gave an inspired address reminding those present of the importance of family and community and balance in a busy professional life. He very much viewed the law as a craft, not a business. He brought order and honor to the Court, by his own preparation, his splendid knowledge of history, and the manner in which his insight vindicated essential aspects of the Constitution, including: a better balance between federal and state power, appropriate respect and accommodation of religious freedom, and the recognition that for many Americans the ownership of a home and the chance to pursue an occupation on fair terms with others was one of the most important civil liberties.

Read the rest of "He Championed the States."

Posted at 03:17 PM on September 07 | Comments (0)

Roberts Picked to Replace Rehnquist: First Responses *UPDATED TUESDAY*

Vikram Amar is professor of law at UC Hastings College of the Law.

Whether the Chief Justice's passing will affect the direction of the Court depends, of course, on whom the President is able to confirm to fill the second (now slotted as Justice O'Connor's) vacancy.

Erwin is certainly correct that replacing Chief Justice Rehnquist with a seeming conservative (like John Roberts) likely won't change too many outcomes; indeed, if people had to pick the sitting Justice whose voting pattern John Roberts' future performance is most likely to approximate, Rehnquist (Roberts' old mentor) would have been the most popular answer.

But now that Roberts is slated to replace the chief rather than O'Connor, Democrats may be able to focus more clearly on how O'Connor's replacement could upset the current balance on the Court. If the President had his wish, perhaps he would have preferred one year with both Rehnquist and Roberts on the Court. Then, a year from now, when he tried to replace Rehnquist with another conservative jurist, the President could (plausibly) argue that he would not be changing the then-existing dynamic.

By contrast, if he tries to fill O'Connor's slot in the coming months with a true conservative — having already filled the Chief's slot with one — he cannot easily deny that the O'Connor replacement will have significant doctrinal implications.

Couldn't the same have been said about the nomination of Roberts to replace O'Connor earlier this summer? Yes, but there are two differences now. First, although Roberts is likely to be more conservative than O'Connor, he is so likeable that his conservatism may not have been attackable by Democrats. There simply aren't that many guys out there like Roberts — whose personal charm, grace and likeability can deflect critisism about his ideology — for Bush to tap and easily confirm.

Second, before the Chief's death, there was always the possibility that the President would appoint a more moderate person to replace him later, to balance off the more conservative move reflected by the O'Connor/Roberts swap. If the President's pick to replace O'Connor this fall is as conservative as Roberts, though, that optimistic possiblity of future balance doesn't exist, insofar as Roberts already would have been installed.

That is why, I think, Erwin is right that Democrats would like to know the identity of the second half of the 1-2 punch before responding to the first, but I'm not sure they'll have that chance.

Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

President Bush has made a shrewd move in shifting John Roberts from being the prospective replacement for Sandra Day O'Connor to being the prospective replacement for his former boss Chief Justice Rehnquist.

For conservatives, the greatest concern about Roberts is the possibility that he may "evolve" to the left, like Justices Harry Blackmun and (to a lesser extent) Anthony Kennedy. For liberals, the greatest concern about Roberts is that he may become a William Brennan of the right — a justice who draws others into his orbit by dint of intellect and charisma. If Roberts becomes chief fustice he will be ideally placed to use his considerable interpersonal skills to advance a very conservative legal agenda.

Erwin Chemerinsky is Alston & Bird professor of law and political science professor at Duke University.

President Bush's selection of John Roberts to be the next Chief Justice profoundly changes the dynamics of the Roberts confirmation process. Roberts replacing Rehnquist does not shift the Court's ideological balance. From all that is known about Roberts, he is likely to vote in the same conservative manner as Rehnquist. But this again makes the crucial question who will replace Sandra Day O'Connor, who has so often been the swing vote in key 5-4 decisions protecting civil liberties and civil rights.

Democrats need to insist that they will not vote on Roberts confirmation until after O'Connor's successor is named. The Senate needs to evaluate both picks together in assessing their impact on the Court, now and for years to come. Also, Democrats need to make clear that since President Bush has already picked a hard core conservative in Roberts for one vacancy, the other selection needs to be a more moderate Republican in the mold of O'Connor.

Posted at 09:32 AM on September 06 | Comments (1)

Rehnquist: Rapid Reactions *UPDATED SUNDAY*

Erwin Chemerinsky is Alston & Bird professor of law and political science professor at Duke University.

Unlike replacing Sandra Day O'Connor, replacing William Rehnquist will not change the ideological balance of the Court.

President Bush's selection for this seat on the Court almost surely will share Rehnquist's conservative ideology. It will mean that this seat on the Court will be held by a conservative for another two or three decades. But it highlights the importance of the nomination of John Roberts: O'Connor was the fifth vote in the majority in key areas like abortion, affirmative action, campaign finance, and the separation of church and state. Her replacement thus has the ability to change the law dramatically in many areas.

President Bush will face the choice of elevating a current justice to chief and picking a new associate justice, or selecting someone not on the court for chief. Although Rehnquist was on the Court when he was named chief, his immediate predecessors, Warren Burger and Earl Warren, were not on the Court when nominated to be chief justice.

Realistically, only Antonin Scalia or Clarence Thomas are possible nominees for chief justice from among the current justices. Anthony Kennedy is far too unpopular with conservatives to be named chief because of his opinions striking down the juvenile death penalty and the Texas sodomy law. Nominating either Scalia or Thomas would produce an enormous fight. But would President Bush welcome this as a way of enhancing the chances of picking someone just as conservative for that vacancy? President Reagan did exactly that in 1986: he elevated Rehnquist to chief and then nominated Scalia for that vacancy. Democrats decided to target Rehnquist and did not challenge Scalia.

The last time there were two vacancies at the same time was in 1971 when John Marshall Harlan and Huge Black steped down. Without a doubt, replacing them with Lewis Powell and William Rehnquist had a dramatic effect on constitutional law for decades. John Roberts is 50 years old. If the new vacancy is filled with someone the same age and they serve until they are 85, the age of current Justice John Paul Stevens, they will be there until 2040. That is why the confirmation process matters so much.

Richard Epstein is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago.

Dwight Eisenhower was fond of quoting this definition of an intellectual: someone who took more words to say less than he knew.

By that definition, the late William H. Rehnquist was, most decidedly, not an intellectual. He had little patience for the obscure and fine-spun theories that preoccupy academic discussion about constitutional law issues. He was, I think, innately suspicious of the Ivy League mode of analysis that so often drives modern constitutional scholarship. Even though he went to Stanford Law School, he remained true to his Wisconsin roots.

His work as a justice was faithful to his conception of the role. His opinions were always workmanlike and clear. He was excellent at marshalling evidence, working his way through a record, and coming up with conclusions that were true to his premises. I do not think that he had any grand judicial philosophy, but he had a strong set of instincts which for the most part led him in the right direction. His instinctive caution kept him from pursuing his position to the end of the road. Let me just mention four cases that come to mind.

First, his early 1978 dissent in Penn Central v. City of New York, where he took exception to the decision of Justice Brennan that landmark designations did not work a compensable taking of the subject property, in that case the air rights over the Grand Central Terminal. The Brennan opinion was an ingenious brew of all sorts of arguments about why regulations were not the same as occupations. It introduced the clever, but ultimately unsound argument, that the question of whether property has been taken depends on the fate of the whole parcel, not just some fraction thereof. It is the classical kind of error associated with judicial minimalism. For it gave no indication of what to do in the countless cases where regulation involves multiple interests in a adjacent plots of land subject to overlapping ownership.

Justice Rehnquist, as he then was, was not taken in by this high-flying talk. He noted that the long tradition of taking law said that singling out given individuals for more stringent treatment was the telltale sign of a taking. The spot-zoning involved in that case met that test. He would have required compensation. But typical to his nature, he would not travel the whole way and rethink the constitutional status of all zoning laws to see if they could pass muster. In so doing, he did not answer the question of what should be done when entire areas, for example, were subject to special treatment. But that was his nature. Don’t get to the big issue if there is a way to slow down the train on the smaller ones.

He and Justice Brennan also squared off in Weber v. Steelworkers Union, on the constitutionality of affirmative action. The Brennan opinion is notable for its specious ingenuity on statutory construction, for taking a color-blind statute and gutting it in so far as it applied to what was in 1964 termed preferential treatment. Rehnquist would have none of that but marshal powerful evidence as to the basic intention of the 1964 Civil Rights Act, which he would not upgrade by judicial slight-of-hand. But he would never ask the larger question of why the federal government has any business regulating employment relationships generally. His style was more limited.

A third landmark was his ingenious majority decision in United States v. Lopez, where he was able to do what no serious constitutional law scholar thought possible. Find a principled way to distinguish the earlier cases, most notably Wickard v. Filburn, in order to show that some activities did lie outside the scope of the commerce clause. In one sense this was his most enduring contribution because it injected an element of uncertainty where before everyone thought that so long as Congress wants it, it is constitutional. But again, for all the flak he took, he did not go the whole nine-yards. He distinguished the Wickard decision, and showed no willingness to overturn it.

Finally, I think that he did a good job in Bush v. Gore, not for the majority equal protection decision which covers far more than it ought, and upsets the basic view that inadvertent deviations from some equality norm do not count as violations of the clause absent some suspect classification. But I thought that he did a masterful job in arguing that the Florida courts had so overstepped their bounds in gutting the Florida legislation, that the outcome of the Florida recount was not as the state legislature had directed, as is required in Article II. His decision would have hit the one case that mattered; brought attention back to the result-oriented jurisprudence of the Florida Supreme Court, and kept us clear of the misguided extensions of equal protection law.

In sum, he was an ingenious lawyer in the sense that he was most proud. He could move the law interstitially, with clarity and imagination, and without the overblown rhetoric that characterized opinions of his more “learned” opponents.

Vikram Amar is professor of law at UC Hastings College of the Law.

In addition to his jurisprudential contributions — presiding over a Court committed to reempowering states, etc. — the Chief was a very skillful administrator. The Court ran very well under his leadership, and he personally got along great with people whose legal philosophies were very different than his own.

Also, it should be noted how long the Chief served on the Court. His almost 34 years on the Court places him, I believe, among the 5 longest serving Justices in American history. Editor's note: Rehnquist was one of four justices with 34 years on the court. The others are Stephen J. Field (1863-1897), Hugo Black (1937-1971), and William J. Brennan, Jr. (1956-1990). Only William O. Douglas (1939-1975) served longer.

Cass Sunstein is a Karl N. Llewellyn distinguished service professor of jurisprudence at the University of Chicago Law School and is the author of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," which will be published in August.

Chief Justice Rehnquist was one of the very few most important figures in the long history of American law.

He was also an extremely generous, good, and decent human being. This is a time for mourning.

Posted at 07:27 AM on September 04 | Comments (2)

CourtBriefs for August 29, 2005: Faith and the Future

Stigmata is on the Other Foot Now
In last Thursday's Times, former New York Governor Mario Cuomo gleefully baited conservatives who question Kerry's Catholicism but now "demand that Roberts not be asked about personal beliefs, including religious ones, because it would amount to a 'religious test' prohibited by the Constitution."

Oh Brave New World That Has Such Judges In It
In the NYT Magazine, Jeffrey Rosen goes back to the future of a Roberts judgeship. "Rather than focusing on Roberts's past, the senators questioning him might get a better sense of his future on the Supreme Court by imagining the issues of the next generation." Such as? Genetic engineering and cranial spelunking.

Read the rest of "CourtBriefs for August 29, 2005: Faith and the Future."

Posted at 10:45 AM on August 29 | Comments (1)

A Court v. Congress Case Summary

An annotated guide to the debate over the question: Should the Supreme Court rein in Congress?

Yeshiva University's Marci Hamilton wants Congress restrained:

For the sake of whichever party is out of power in Washington, the answer has to be "yes." Congress has come to view itself as an entity with plenary power to enact any law it desires. To date, the Rehnquist court has produced a very modest federalism doctrine that checks congressional exercises of power only on the margins. The court took a serious misstep last term when it held in Gonzales vs. Raich that the state of California could be forbidden from legalizing medical marijuana because the federal government is engaged in a comprehensive war on drugs. That decision betrayed the principled heart of federalism, which is to permit the states to be 50 social experiments. There is no reason for Congress to be able to trump a wholly intrastate activity involving health, safety and welfare.

Douglas Kmiec of Pepperdine took on Congress:

The Rehnquist court has sent confusing signals on the scope of Congress' commerce power. Chief Justice William Rehnquist recurred to James Madison's observation in Federalist 45 that "the powers delegated by the proposed Constitution to the federal government are few and defined. Those which remain in the state governments are numerous and indefinite." The powers remaining in the state governments today are still indefinite, but after Gonzales vs. Raich this past term, they are also less numerous.

In Raich, the court extended federal power by holding that Congress could prevent a woman with a brain tumor from using a home-grown substance to survive.

Harsh? Yes. Unconstitutional? Apparently not.

But Lawyer Edward Lazarus defended lawmakers, arguing that they have exercised restraint:

Last time I looked, Congress wasn't really up to too much except the usual orgy of pork-barrel politics. In the last decade or so, it is the executive branch and the Supreme Court that have expanded their authority and that pose a greater immediate threat to our freedoms than Congress.

Read the rest of "A Court v. Congress Case Summary."

Posted at 08:37 AM on August 28 | Comments (1)

I Got Your "Unchecked Power" Right Here

Erwin Chemerinsky is Alston & Bird professor of law and political science professor at Duke University.

A response to Marci Hamilton: Will John Roberts favor dramatically narrowing the power of the federal government and denying it the ability to enact necessary legislation? That is the key question in the discussion over federalism. For example, Clarence Thomas has argued that Congress's power to regulate interstate commerce should be limited to regulating economic transactions and that Congress's spending power should be greatly curtailed. If this were the law, every federal environmental law, most federal criminal laws, many federal civil rights laws, and countless spending programs would be deemed unconstitutional. If this is John Roberts' view, he should be denied confirmation.

Read the rest of "I Got Your "Unchecked Power" Right Here."

Posted at 10:55 AM on August 18 | Comments (1)

Congress Needs a Hip Check, Not a Blank Check

Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

The accumulation of congressional power has been incremental over the decades it was freed from meaningful limitation, starting in the 1930s. The fact that it has been unchecked for decades is hardly an argument for keeping the status quo. Had the Framers' core belief been that all men who have unchecked power will likely abuse it, Congress might have evolved into a more responsible branch during its unchecked era. Current legislative results, however, argue to the contrary, as I point out in my previous posts (here, here and here).

Congress did manage to pass "landmark" legislation between the 1930s and now, including the Civil Rights Acts. As the Court has repeatedly stated in its Sec. 5 opinions, the Civil Rights Act stands despite a states' rights doctrine. At the same time, Congress has passed gutless legislation, like the Clean Air Act, which sets no standards, and mountains of pork barrel, as it has shamelessly pandered to religious interests. The question is how to reduce the irresponsible enactments and increase accountability — not whether it ever passed any worthwhile legislation.

Posted at 01:45 PM on August 17 | Comments (1)

This Ain't a New Deal

Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

Marci writes as if the breadth of Congress' power — and, thus, the debilitating diffusion of its focus — is a new phenomenon. Actually, the broad view of congressional power has been settled constitutional law for almost 70 years (since the New Deal) — with the Rehnquist Court now turning the clock back to some degree. During these seven decades, the country somehow managed to muddle through and Congress even managed to pass lots of landmark legislation, including all the major civil rights and environmental laws. In short, it is ahistorical to blame recent congressional failings on the scope of congressional power.

Posted at 02:32 PM on August 16 | Comments (0)

Power's Playground

Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

Erwin says:

No one is talking about eliminating state and local governments.

No one wants to eliminate the state and local governments themselves — just their power. The question of federalism is all about the division of power between the federal and state governments. Between the unchecked pork barrel spending, the delegation of policy making to the executive branch, and the de minimis checks on Congress's power, the Capitol building is a literal playground for our elected representatives. It's bad for the states, bad for the people, but also bad for Congress.

Under the current regime, it is impossible for any member of Congress to say to a constituent that the problem mentioned is beyond his or her jurisdiction. Every issue is Congress's issue, which means its resources are scattered and its focus is far off the horizon of the national common good (where the Framers hoped to train it). It is in the members' interests to have federalism enforced, though no politician (or human, for that matter) gives up power willingly.

Posted at 02:26 PM on August 16 | Comments (0)

Someone to Watch Over Them

Richard Epstein is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago.

As I read the remarks of Ed Lazarus and my colleague Cass Sunstein, I could not resist thinking back to the famous Gershwin line, “I need someone to watch over me.” Change the singular to the plural and we have the position of both Congress and the states.

The problem in most cases is not whether Congress or the states are better at protecting the liberties of ordinary subjects. Sometimes neither does a particularly good job. Lazarus bemoans the sad state of public sentiment on the issue of gay rights, including those who want to have marriage ceremonies approved by the state. If we had a stronger sense of individual liberties against all government interference, then Lawrence v. Texas would not stand out like a sore thumb. The state conceded that there was no health interest for the statute, so all that is left to justify state restrictions through its licensing power is the sentiment of the majority that does takes offense at how other individuals lead their own lives.

Read the rest of "Someone to Watch Over Them."

Posted at 02:13 PM on August 16 | Comments (0)

Congress Should Mind Its Own Business

Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

Congress does not attack enough of the "big national problems," because it has been given plenary power to address every single issue a constituent brings to its door. There was no crying need for the Gun-Free School Zones Act, but because Congress did not even question its power, it spent its resources doing that while it did not address other, far more pressing national problems.

Federalism keeps some issues in the states, leaving the federal government to focus more clearly on what is national in nature. (The additional reason that Congress does not tackle the tough issues, is because the Court has permitted it to delegate the hard policy choices to the executive branch and administrative agencies, so it is both unaccountable and capable of addressing every issue in the universe. This is an institution with no meaningful checks, which yields vapid legislation and a focus that has drifted from that which Congress was supposed to do to whim.)

Read the rest of "Congress Should Mind Its Own Business."

Posted at 12:28 PM on August 16 | Comments (0)

What About States’ Wrongs?

Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

I wonder whether the gays and lesbians in Texas, Georgia, and Colorado — the states whose hateful anti-gay laws have triggered Supreme Court cases — realize that their real enemy is the federal Congress? Marci talks in fine sounding generalities about the value of federalism to progressives, but pardon me if I have my doubts.

There’s a reason that, historically, conservatives have championed states’ rights. In large swaths of the country, progressives don’t have a chance. And even in more liberal states like California, those highly organized and cohesive groups that Marci mentions have pushed through regressive measures, like the cap on property taxes that makes a hash of state fiscal policy as well as the state ban on affirmative action and needlessly punitive measures against undocumented aliens. Meanwhile, the Court’s federalism jurisprudence has really advanced the progressive cause, striking down anti-gun legislation, insulating states from righteous lawsuits, and limiting the ability of federal courts to correct the injustices of state court criminal law processes often overseen by elected judges who know better than to kill their careers by enforcing constitutional rights.

Read the rest of "What About States’ Wrongs?."

Posted at 12:27 PM on August 16 | Comments (0)

The Federalism Facade

Erwin Chemerinsky is Alston & Bird professor of law and political science professor at Duke University.

The discussion between Marci Hamilton and Eddie Lazarus about federalism points to an important issue for the Roberts confirmation hearing: Will John Roberts be a vote on the Supreme Court to significantly limit Congress’s power to enact desirable and necessary legislation? Senator Arlen Specter already has said that Roberts needs to answer detailed questions about his views on this.

On the current Court, Justice Clarence Thomas has taken the radical position that Congress’s power to regulate interstate commerce is limited to regulating economic transactions and does not include the authority to regulate activities that have a substantial effect on interstate commerce. This would make all federal environmental laws and many federal civil rights and criminal laws unconstitutional. Thomas also has urged significant new limits on Congress’s power to use its spending power to induce state and local government action. Senators need to know if John Roberts would be a vote for such dramatic changes in the law.

Read the rest of "The Federalism Facade."

Posted at 12:16 PM on August 16 | Comments (0)

Hey Eddie, Remember Schiavo?

Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

Despite what Eddie thinks, the little guy has a far better chance getting his city council recalled than he ever will affecting national politics in the face of the national interest groups. In Kelo vs. New London, the losers went through the wrong process, encouraged by national interest groups that, ultimately, did not win at the Court. Eddie has vastly underestimated the power of national interest groups behind the scenes — scenes the vast majority of voters will never enter — to push policy their way.

As political scientist Mancur Olson brilliantly showed, small, cohesive interests do far better in the legislative process than do unorganized majorities. At the national level, the power of such cohesive interests has the potential to undermine a much larger number of people. Take, for example, the Terri Schiavo action in Congress. A small minority of interests was able to call Congress (both parties) to session and to persuade the President to fly into Washington over a weekend to sign a bill that involved state law, which had been subject to repeated, consistent state court interpretation, and affected a sum total of 2 people — her parents. The polls showed that well over 70 percent of the American people thought Congress had been overreaching — that's a lot of people whose views were not reflected in that piece of legislation.

Read the rest of "Hey Eddie, Remember Schiavo?."

Posted at 12:14 PM on August 16 | Comments (0)

At Least Congress is Elected

Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

To ask this question is to presuppose that we live in an era of transcendent Congressional power. Last time I looked Congress wasn't really up to too much except the usual orgy of pork-barrel politics. In the last decade or so, it is the Executive Branch and the Supreme Court that have expanded their authority and that pose a greater immediate threat to our freedoms than Congress.

It is certainly true that Congress is capable of lots of ill-advised legislation, but generally speaking I still prefer the mistakes of elected legislatures to the mistakes of unelected, life-tenured Supreme Court justices, who have shown themselves to be plenty fallible.

Read the rest of "At Least Congress is Elected."

Posted at 12:13 PM on August 16 | Comments (0)

We’re Too Connected for a Weak Congress

Cass Sunstein is a Karl N. Llewellyn distinguished service professor of jurisprudence at the University of Chicago Law School and is the author of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," which will be published in August.

It's hard to answer this question in the abstract, but the simple answer is no. The Supreme Court should not adopt an agenda to "rein in Congress." The Rehnquist Court has invalidated over three dozen acts of Congress, and some of those invalidations are extremely hard to defend. Senator Specter is entirely within his rights to express concern about what the Court has been doing.

Of course it is appropriate for the Court to enforce constitutional limitations, but the appropriate posture, on the part of the Court, is one of humility and modesty in reviewing the decisions of a coordinate branch of government.

Read the rest of "We’re Too Connected for a Weak Congress."

Posted at 01:54 PM on August 15 | Comments (0)

Prove It, Congress

Douglas W. Kmiec holds the Caruso family chair of constitutional law at Pepperdine University.

The Rehnquist Court has sent confusing signals on the scope of Congress' commerce power. Over the last decade, the Supreme Court gave the impression that Congress' power "[t]o regulate Commerce . . . among the several States" was not unlimited. In its 1995 Lopez and 2000 Morrison decisions, the Court made an attempt to re-establish a link between the Constitution and modern "constitutional law." The Court said "to here, but no further." In Lopez, Chief Justice William Rehnquist recurred to James Madison's observation in Federalist 45 that "the powers delegated by the proposed Constitution to the federal government are few and defined. Those which remain in the state governments are numerous and indefinite." The powers remaining in the state governments today are still indefinite, but after Gonzales v. Raich this past term, they are also less numerous.

Read the rest of "Prove It, Congress."

Posted at 01:53 PM on August 15 | Comments (1)

Clip Congress' Wings

Richard Epstein is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago.

The question for discussion — should the Court rein in Congress’s power? — reminds me of a dialogue that took place between two English judges 700 years ago. The first judge said, “Law is the rule of the judges.” But the Chief Justice, speaking for a majority of the court, replied, “No, law is reason.”

It is hard to imagine a pithier debate between the moral realists and the legal realists. The former believe that law can be discovered from first principles and written text. The latter think that these tools are too weak to constrain the political preferences of judges.

Read the rest of "Clip Congress' Wings."

Posted at 01:51 PM on August 15 | Comments (0)

Over-mighty Congress a Foe of Private Property, Pot

Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

For the sake of whichever party is out of power in Washington, the answer has to be "Yes." Congress has come to view itself as an entity with plenary power to enact any law it desires, and because Justice Scalia has been soft on nondelegation, it is wholly unlimited when it comes to its ability to shift the hard choices to unaccountable agencies.

To date, the Rehnquist has produced a very modest federalism doctrine that checks congressional exercises of power on the margins, and only on the margins. The Court took a serious misstep this last term when it held in Raich (the medical marijuana case) that the state of California could be forbidden from legalizing medical marijuana, because the federal government is engaged in a comprehensive war on drugs. As Justice O'Connor's dissent stated so well, that decision betrayed the principled heart of federalism, which is to permit the states to be 50 social experiments. Like Justice O'Connor, I'm not sure as a legislator that medical marijuana would be my choice, but there is no reason for Congress to be able to trump a wholly intrastate activity involving health, safety, and welfare.

Read the rest of "Over-mighty Congress a Foe of Private Property, Pot."

Posted at 01:44 PM on August 15 | Comments (0)

Last Week's Question

Should Roberts' pro bono work for gay rights activists affect his confirmation?

Posted at 12:38 PM on August 11 | Comments (0)

Ignore the Flap, Pay Attention to the Right Wing

Cass Sunstein is a Karl N. Llewellyn distinguished service professor of jurisprudence at the University of Chicago Law School and is the author of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," which will be published in August.

We should be careful not to lose the forest for the trees. There's a much larger context for the current debates over Judge Roberts, and particular questions can badly obscure that context.

Since 1980 and before, Republican leaders in the White House and the Senate have been engaged in a large-scale program to reorient the federal judiciary. They've had an agenda -- one that would move constitutional law in identifiable and predictable directions on such issues as the rights of criminal defendants, desegregation remedies, affirmative action, privacy, standing, campaign finance, commercial advertising, and much more. To a large extent, they've succeeded. The federal judiciary is fundamentally different from what it was in 1980.

Read the rest of "Ignore the Flap, Pay Attention to the Right Wing."

Posted at 11:57 AM on August 11 | Comments (1)

God’s Laws or Man’s?

Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

I do not remember a Supreme Court nomination process so heavily freighted with religion. First, there were reports, and who knows if it is true, that Judge Roberts indicated that he would recuse himself in cases that came into conflict with his religious beliefs. If true, this makes him unfit to serve as a Justice, because it means he will not uphold laws reached through legitimate processes. Second, the Sunday morning news shows have focused on whether it is appropriate to ask Judge Roberts about his Catholic beliefs -- a question made timely by the numerous statements out of the Vatican in recent years threatening the denial of communion and excommunication for public officials who take positions in contrast with the Church's theology. Third, Roberts' nomination is the reason behind the second Justice Sunday (to which Tom DeLay was invited and Bill Frist was not) -- conservative Christians (at least until they heard about his pro bono assistance in Romer) are rallying for him. Of course, their support is motivated by their desire to conform the law to their religious beliefs in the areas of abortion and homosexual rights.

Read the rest of "God’s Laws or Man’s?."

Posted at 11:09 AM on August 10 | Comments (0)

Pro-Bono + Liberal Cause = Next to Nada

John Yoo is professor of law at the UC Berkeley School of Law (Boalt Hall).

Roberts' work on Romer v. Evans tells us a little — but only a little. Conservative lawyers in Washington often take on conservative causes for their pro bono cases; they often feel that law firm pro bono practices are tilted toward causes that are liberal, progressive, call them what you will.

Read the rest of "Pro-Bono + Liberal Cause = Next to Nada."

Posted at 12:38 PM on August 09 | Comments (0)

Specter's Threat

Richard Epstein is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago.

Much of this debate on this website has swirled around the question of just what sort of questions (if any) the Senate Judiciary Committee should ask of presidential nominee John Roberts. On that weighty question, Senator Arlen Specter, its Republican chair, has weighed in, expressing his distaste for the decisions of the Rehnquist Court (Sandra Day O’Connor included) that have trimmed the power of the federal government to legislate under the Commerce Clause. Finding limits to federal power does not amuse Senator Specter: "Well, that's just another way of saying Congress is incompetent," Mr. Specter said, adding, "I'm not suggesting we pack the court, but at a minimum, the Senate is determined to confirm new justices who respect their role."

So here we are at it again.

Read the rest of "Specter's Threat."

Posted at 10:55 AM on August 09 | Comments (2)

Big Cases, Big Questions

Vikram Amar is professor of law at UC Hastings College of the Law.

Some Senators say that while they may properly question Roberts about his general approach to judging and interpretation, they should not ask for detailed views about actual cases. Nonsense. If you can't ask a nominee for specific views about specific past cases, you might as well not hold a hearing.

Read the rest of "Big Cases, Big Questions."

Posted at 04:38 PM on August 08 | Comments (0)

It's a Weak Signal

Cass Sunstein is a Karl N. Llewellyn distinguished service professor of jurisprudence at the University of Chicago Law School and is the author of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," which will be published in August.

The basic answer is no. The fact that Roberts worked a bit on Romer v. Evans, giving some help to those seeking to argue against the unusual Colorado law at issue there, is far from a big deal. Lawyers are usually willing to help their partners and associates. In general, it's a mistake to seize on small "bits" from a lawyer's extensive career and to take them as giving strong signals; this small "bit" is a weak signal at best.

Posted at 04:34 PM on August 08 | Comments (0)

He's a Helper. So What?

Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

As someone who actually practices appellate law within a large national law firm, I find the dissection of Roberts' minor participation in the Romer case somewhat amusing. Roberts' colleagues at Hogan asked for his help in a really interesting and important Supreme Court case. He gave that help, which is what colleagues at law firms do, gladly. Had Roberts arranged for Hogan to take on the Romer amicus brief, I might feel differently. Had Roberts initiated Hogan's role, that could be construed more reasonably as a statement about Roberts' own views and priorities. But helping out someone else in the firm is just not meaningful.

Read the rest of "He's a Helper. So What? ."

Posted at 02:38 PM on August 08 | Comments (1)

Maybe He’s Just a Nice Guy

Douglas W. Kmiec holds the Caruso family chair of constitutional law at Pepperdine University.

Yes, it should enhance John Roberts' favorable confirmation prospects even more. It demonstrates, yet again, that this is a nominee of generous spirit and collegial professionalism, who, on an entirely volunteer basis, would reach out to help a young lawyer without substantial Supreme Court experience. The assistance cannot reasonably be construed as suggesting agreement with the underlying merits of the cause in Romer, but then, it does not confirm disagreement either.

Read the rest of "Maybe He’s Just a Nice Guy."

Posted at 12:35 PM on August 07 | Comments (3)

All Issues Aside

Erwin Chemerinsky is Alston & Bird professor of law and political science professor at Duke University.

As more information is becoming available about John Roberts, there is a danger that the focus will be on tangents that don't relate to what needs to be the crucial question: Are John Roberts' views so far to the right as make him out of the mainstream and unacceptable as a Supreme Court Justice? This week, two such tangential issues have gotten far more attention than they deserve.

First, John Roberts' involvement in the Federalist Society is irrelevant to the confirmation process. I don't often get to agree with John Yoo, but on this he is clearly correct. There is nothing wrong with Roberts being a member and even an officer of the Federalist Society. This says nothing more than that Roberts is conservative. But that is already known. The Federalist Society reflects a large range of conservative views and his involvement reveals nothing about the specifics of his beliefs. It is to be expected that anyone President Bush nominates will have some involvement in the Federalist Society.

Read the rest of "All Issues Aside."

Posted at 11:38 AM on August 07 | Comments (0)

Don’t Read the Tea Leaves

Richard Epstein is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago.

Marci Hamilton has provided us with one read of the so-called revelation that John Roberts helped moot gay activists in preparation for their arguments in the much-watched Romer case. Her verdict is that it shows that he is a man who is very much in the middle, which should give comfort to the centrists against those of either side. That may well be one reading of the tea leaves. Another approach is not to try to read them at all, for fear of over reading one way or another. It could mushroom into a terrible tragedy if the assistance rendered inside his law office becomes the target of public inquiry before the Senate Judiciary Committee. We do not want individuals of great ability to fear that their every action will be subject to hostile scrutiny from some angry quarter during the course of a public hearings.

Read the rest of "Don’t Read the Tea Leaves."

Posted at 11:25 AM on August 07 | Comments (1)

He Might Be a Souter Moderates Can Love

Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

Roberts' pro bono work for gay activists in the Romer case is a very good sign that he is not an ideologue, but rather someone who is capable of not only seeing, but arguing, both sides of highly charged issues. That is a tremendous asset in any Justice, right, left, or center. This tells us nothing concrete about his personal views, but the vast middle of the United States should take some comfort in learning this.

Read the rest of "He Might Be a Souter Moderates Can Love."

Posted at 11:21 AM on August 07 | Comments (0)

Last Week's Question

What do John Roberts’ old papers tell us about his thinking and his beliefs?

Posted at 11:59 PM on August 06 | Comments (0)