December 18, 2005

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 by msoller at 10:00 PM | Comments (0)

November 20, 2005

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.

An executive-branch lawyer may not think he should worry about respect for judicial precedent the way a judge should. So, even in 1985, a Judge Alito might have had different views than lawyer Alito did. And 20 years have passed since Alito filled out the application, and he might today claim that both the world and his legal interpretations have changed.

Whether any of that will play during his Senate confirmation hearings is another matter. Asked to explain his written words, Alito might not be able to stonewall the way Judge John G. Roberts Jr. did during his hearings. Sen. Charles Schumer (D-N.Y.) has already said that some statements on the application could suggest that Alito has prejudged the continuing vitality of Roe vs. Wade, and thus he must discuss abortion rights to demonstrate his open-mindedness.

Schumer is correct to press Alito for his current views on abortion rights, but not because Alito has prejudged the issue. If the judge’s 1985 statement improperly prejudges future abortion cases, so too would the writings of Justice Antonin Scalia in every Roe-related case he’s heard since 1987, yet he continues to hear such cases. Alito should address the contents of his job application for the same reason he should talk about all his tentative constitutional views — these are not personal feelings but legal opinions.

Much of what Alito wrote in 1985 no doubt shocks many people today. Perhaps most arresting is his disagreement with the Warren court’s reapportionment rulings.

The court struck down legislative districts in which some voters (mostly in rural white areas) enjoyed a much greater electoral voice than others (in urban regions containing with many poor people and people of color).

These “one person, one vote” cases are as canonical in 2005 as is Brown vs. the Board of Education, and were even used by the Supreme Court in deciding Bush vs. Gore.

But in challenging these and other Warren court decisions, Alito simply shows what it meant to be a true conservative in the 1960s and 1970s. Conservatives openly attacked Brown 40 years ago. They sharply criticized the idea that judges should regulate redistricting. They hotly questioned the (now entrenched) notion that Bill of Rights’ protections should also apply to the states. Today’s conservatives aren’t exactly eager to remind everyone what conservatism meant just one or two generations ago, and how they were often fighting on the wrong side of history.

But is today’s conservatism still fighting those battles?

It’s noteworthy that although Alito expressed disagreement with the Warren court’s rulings on reapportionment, defendants’ rights and the establishment clause, he didn’t indicate a strong desire to mount a legal campaign to overturn them. Even by 1985, most conservatives had grudgingly come to accept, if not embrace, school desegregation; one person, one vote; Bill of Rights protections against the states; the requirement of Miranda warnings for criminal defendants, and even bans on heavy-handed school prayer.

Why? Maybe because society has internalized these major legal innovations and moved on. But conservative elites have drawn a line in the sand over Roe vs. Wade. It’s the one legal innovation that they haven’t caved on, perhaps because society has not internalized it.

For better or worse, what may be most revealing about Alito’s 1985 job application is the way it shows how singularly important — and singularly divisive — abortion rights are in U.S. constitutional discourse.

Posted by msoller at 08:45 AM | Comments (1)

November 13, 2005

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.

In the 1992 case of Casey vs. Planned Parenthood, Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion. Such a requirement, he ruled, was not an “undue burden” on most women. The vast majority of women, he noted, voluntarily discuss an abortion with their husbands, while the law provided a nominal exception for women in the most extreme circumstances, such as abusive relationships.

The only women who would be burdened were all those left in the middle — women like me, women in extraordinary and individualized circumstances that neither laws nor legal standards could possibly anticipate.

Alito’s opinion in essence said the only women the law would burden were those for whom it was burdensome; his standard appeared to be that individual rights could be restricted provided that not too many individuals were at stake.

That is precisely the problem with government regulating private lives. Politicians do not know how laws will affect each individualized case. Courtrooms are a citizen’s last refuge from unjust laws. When judges do not see those in their courtrooms as whole people and diverse individuals, that final constitutional safeguard is eviscerated.

To be sure, Alito would likely say women such as me should not take his opinion personally. I don’t. But his potential elevation to the Supreme Court comes at a moment when privacy rights hang in the balance on an array of issues. A woman’s right to choose is the most immediately threatened among them. Many Supreme Court decisions on that topic have been decided by a single vote — Justice Sandra Day O’Connor’s. If Alito is even slightly more conservative than O’Connor — as is obviously the case — his vote would be enough to render the protections of Roe vs. Wade functionally meaningless for millions of women.

That is disturbing enough. But far more is at risk. From the Terri Schiavo case to the Patriot Act, politicians at all levels of government show an increasing willingness to invade the most sacred areas of private life — from decisions about the beginning and end of life to the books we check out of the library.

Politicians are inclined to do that sort of thing; they rarely respect limits on their own power. That is why we have judges — but if judges such as Alito are willing to give politicians such unthinking deference that they do not even attempt to ascertain how real laws affect real people, it is difficult to see how privacy can possibly be protected.

That is why it is so disappointing that President Bush has chosen to be intimidated by the most extreme element of his political base rather than acting as what he so often purports to be: a leader. Because he has chosen to follow, it is up to senators to lead. This nomination will rise or fall on the courage of moderates of both parties. Neither Democrats nor Republicans should expect their claims of moderation to be believed if they support a nominee whose views are so extreme.

Bush’s political strategy is already clear: to portray anyone who opposes Alito as obstructionist. That is a label senators should not fear. If their power to advise and consent — as well as the privacy of individual American citizens — means anything, this is a nomination that must be obstructed.

Posted by msoller at 05:39 AM | Comments (2)

October 03, 2005

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

Posted by bbuhler at 12:00 AM | Comments (0)

September 21, 2005

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 by bbuhler at 11:03 AM | 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 by bbuhler at 10:30 AM | 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.

John Roberts is of such quality and merit that he deserves unanimous approval. He staked out the position made famous by Oliver Wendell Holmes, and it is one anchored in law, not partisanship. Several times, 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 these Senators seem to believe 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.

Replacing Justice O'Connor should entail no different set of considerations than looking for a person learned in the law who will be faithful to the limited, albeit important, understanding of a judge as a neutral and impartial arbiter. Any attempt to match her reasoning — however much I admired it especially in matters of federalism and the security of private property — is a fool's game.

Posted by bbuhler at 09:28 AM | Comments (0)

September 20, 2005

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 by bbuhler at 12:42 PM | 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 by bbuhler at 11:25 AM | 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 by bbuhler at 10:43 AM | Comments (4)

September 19, 2005

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.

Starting with the latter, Jeff Rosen in this Sunday Times Magazine noted that our history has given us chief justices that have been able to achieve high levels of cooperation among the justices and those who have failed utterly in that task. To speak only of our last four chief justices, the vote is strongly positive for two and strongly negative for two others. Fred Vinson, who could not rule over a fractious Court on segregation, counted as a clear failure as chief, as did Warren Burger whose vanity and self-importance got in the way of every institutional responsibility. But Earl Warren, who pulled the Court together on Brown v. Board of Education, and William Rehnquist himself weren’t failures because they had the temperament needed to hold the Court together. Each could express leadership in his own way, and neither used the power of the chief’s position to achieve some short-term advantage of any key substantive issue that came before the Court.

It seems clear that on that key question of temperament, Roberts is a superb choice to fill the position. Smart and funny, he is also self-effacing. I have not heard anyone who knows him say a harsh word about him. And he did have the great advantage of working with Rehnquist (when Rehnquist was an associate justice) to see how the pomposities of a bad chief justice could sour the disposition of an entire court.

There is also a second lesson that can be learned. The success of a chief justice does not depend on his holding views that place him in the center of the Court. Warren was able to be effective from the left and Rehnquist from the right. Rosen, I think, was wrong therefore to wonder aloud whether Roberts has the “moderation, pragmatism and flexibility” to do the job. Not so. The chief justice who knows the limits of his role will do just fine, and indeed will gain more respect, if he holds true to whatever constitutional principles he finds most persuasive. Roberts should just be his own man.

And what kind of man will that be? In one sense that will be hard to guess because he rightly bobbed and weaved when he answered particular questions. But there are clear signs about judicial temperament as well. Any one who likes the phrase “settled expectations” is not likely to prove erratic or extreme in his judgments. The criticisms raised of Roberts have to do with how he would decide cases that call into questions doctrines that have already been decided by the Court. But that seems to be the wrong perspective on which to evaluate. What really matters in many cases is the intellectual attitude that he brings to the novel issues that are sure to come before the Court. All that anyone can ask is that he have an open mind, which I thought he did, even before he said he did.

Indeed, my concern about Roberts as a justice is the opposite of that expressed by many of his doubters. I am not sure that he has a strong judicial philosophy that could help guide him through the difficult shoals that lie ahead. As a practicing lawyer, his natural tendency was to think about narrow and safe grounds on which to argue a case, without rippling the waters. That is just right for lawyers who have clients’ interests and stake, but it is less likely to prove successful for the judges who decide great cases. I am no fan of constitutional minimalism because it gives no information about the long-term features of our constitutional heritage that are worth preserving. It just assumes something nice about (parts of) the status quo, without asking how well they fit in within our powerful constitutional tradition, which succeeds because it recognizes that we have to learn to distrust the government that we have to support and protect.

The great crises before the Supreme Court are likely to come in cases as yet unknown where someone has courage enough to break the mold, and creative enough to know how best to do it. In dealing with these matters, I hope that Roberts proves himself to be an independent man of principle. His new role is different from any other that he has filled. In the end, choosing or confirming any nominee require us to make a leap of faith. With Roberts, the odds are far better than we had any right to expect. Good luck and God’s speed.

Posted by bbuhler at 11:19 AM | Comments (0)

September 15, 2005

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 by msoller at 04:30 PM | 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.

Three years ago, in Republican Party of Minnesota v. White, the United States Supreme Court, in an opinion by Justice Antonin Scalia, said that a judge does not lose impartiality by expressing his or her views while running for judicial office. A person does not become impartial by pretending that he or she does not have views.

If Roberts is allowed to get away with this charade, there seems little point to holding these hearings in the future. The Democrats need to make clear that a nominee's views do matter in how he or she is likely to vote and that Senators, and the American people, need to know these views in order to confirm the nominee for a lifetime seat on the Supreme Court. The Democrats need to oppose John Roberts because he simply would not answer their legitimate and necessary questions.

Posted by msoller at 07:44 AM | 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.

It is widely noted in law schools that an older, experienced judge was once talking with a younger judge who had just been sworn in. The older judge asked the younger judge if he knew what his job was in making decisions; and the younger judge said, "Yes, I should make decisions which are just and fair." And the older judge said, "No, you are to enforce the law."

This is the same response Oliver Wendell Holmes gave when his friend, Learned Hand, too casually ended a conversation saying "go and do justice." Holmes, like Roberts, said that as lofty as that sentiment may be, it was not his job since thinking otherwise fails to preserve the important distinction upon which the rule of law itself is based.

People disagree about what is just and fair. We live in red states and blue ones. So if we are to remain anything resembling a "more perfect union" in any practical sense, we must remain faithful to the ideal of being a nation of laws and not men. Of course, we the people must seek justice in legislative enactment and personal behavior. But in matters of judging, the aspiration is more modest; in John Roberts' words, more humble. The judicial oath requires a judge to enforce our choices, subject only to avoiding a transgression of the bill of rights. As countless decisions illustrate — from flag-burning as speech that insults patriotic citizen to the exclusionary rule that lets the criminal go free when the constable blunders — judges must enforce the law, even the ones they dislike or with which they disagree.

"Justice?" Asked writer William Gaddis in his novel of the 1990s, "You get justice in the next world, in this world you have the law."

Posted by msoller at 07:37 AM | Comments (4)

September 14, 2005

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 by msoller at 04:39 PM | Comments (1)

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.

Sen. Lindsey Graham (R-S.C.) asked the rhetorical question of the day when he wondered aloud that, despite Judge Roberts' obvious brilliance, his warm, open-minded and impartial demeanor, and most of all, his refreshingly consistent view of a judge as a restrained, "bottom-up" decider of cases and not a usurping policy maker — whether he would get any votes from the Democratic side at all. Sen. Graham, of course, fashioned the bipartisan moratorium to the problematic filibuster of appellate nominees, so his was both a poignant and important observation.

No one doubted that Ruth Bader Ginsburg and Stephen Breyer were both highly able and highly liberal. Ginsburg as an ACLU advocate was often way beyond settled law and Breyer had been a Kennedy staffer, yet, with their articulated commitments to decide cases on the law and the record of each case, they were appropriately confirmed 96-3 and 89-9 respectively. On the merits, Roberts deserves 100-0 — and were that politically unlikely tabulation somehow nevertheless to occur, it would be an act of profound Senate responsibility and good will that would signify a full-fledged return to respecting the constitutional design, and most especially, the separation of powers.

Don't misunderstand. Roberts could not possibly have satisfied everyone in the substance of his answers yesterday. He didn't. First of all, a good number of questions could not be ethically answered. Again, following the lead of Justice Ginsburg, he noted that it is wrong to predict, forecast, or promise particular legal results. Roberts' answers therefore carefully and largely avoided expressing personal views on cases that might come before him or his personal view of the merit or demerit of past cases.

Yet, Roberts was entirely forthcoming in stating an encyclopedic grasp of constitutional and federal law. On abortion, he conceded Roe, as subsequently modified by Casey, to be a precedent worthy of respect, and then prudently declined to guarantee either its immunity from, or certainty of, reconsideration. Roberts also refused to be blamed for Hurricane Katrina or national poverty, and likewise, politely but firmly resisted the caricature of his staff lawyering for the Reagan administration as being against civil rights or women.

Regrettably, some Senators could not resist asking Roberts to make pledges about his Catholic faith. It was ugly when John F. Kennedy was asked this in 1960 and such "religious test" is no prettier over four decades later and contrary to the spirit if not letter of the Constitution. Of course, nothing in the Catholic faith directs judges to disregard their oath of office, so it is easy to put to rest. Nevertheless, when Senator Feinstein asked him to affirm an absolute separation of church and state, Roberts thoughtfully paused. Once again, Roberts simply and plainly reflected that such absolutism is not the text of the guarantee of religious freedom and did not even coincide with the Court's most recent thinking allowing at least some public display of the Ten Commandments.

Overall, Roberts refrained from answers that would undermine the institutional independence of the judiciary or prejudge constitutional controversy. This humility extended even to friendly efforts to liken him to the late Chief Justice Rehnquist, whom Roberts obviously admired and learned from. He would be his own man, Roberts said. And at the end of a very long day, that is a very welcome prospect for the Court and the nation.

Posted by msoller at 12:43 PM | Comments (0)

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 by msoller at 07:55 AM | Comments (0)

September 13, 2005

Stop Ducking in Public

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.

Roberts most likely answer is that it would compromise his impartiality if he told his views. But this, too, is just wrong. We all know Antonin Scalia's and John Paul Stevens' views on abortion, but no one suggests that they must recuse themselves for bias. The fact that a Justice has views does not undermine impartiality because, of course, they all have thoughts and positions. Pretending that the judge is a blank slate doesn't make the judge impartial. As a litigant, I'd much rather know the judges' views than pretend that they don't exist.

Senate Democrats must clearly communicate that Roberts' failure to answer questions is a basis for opposing his confirmation. Democrats need to say that they will not confirm Roberts based just on faith that he won't be the fifth vote to overrule Roe or end affirmative action or allow dramatically more government aid to religion.

Posted by bbuhler at 01:34 PM | Comments (0)

Katrina vs. Roberts

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.

The opening statements by the various senators did not, when read, seem to break any new ground. It still remains a surpassingly odd view of constitutional interpretation to think, for example, that anyone who has the temerity to think that there are limits on Congress’s power to legislate under the Commerce Clause should be chastised for showing disrespect for Congress, which earns it when prominent senators speak such silliness from their high positions. And it remains as foolish as it ever was to think that a vote on any issue, including one as important as abortion, should be regarded as a litmus test on the vote. Roberts is surely correct to follow the Ginsburg line, I won’t prejudge cases that I may be called on to decide, and should leave it at that no matter what the provocations he faces.

In the end he was right also to utter platitudes about being an umpire, not a player, and about deciding cases with an open mind and without fear or favor. More importantly, the model of settled expectations (which has no constraint on us academics) is appropriate for justices of the Supreme Court, but it is a presumption, not an hard and fast rule. Brown v. Board of Education is just the type of case that merits a departure as he said. So far so good. Just imagine what anyone would have said if he had done otherwise! But remember, he has said only what any nominee of any philosophical persuasion should state. In doing so, he only reinforces my original position that the whole direct confrontation task is a waste of time in any event, save for this one point. Sitting there alone, and without writing a note, gives the aura of self-confidence that should play well.

So I engage in that most dangerous of speculation, and assume that he has already come out well in the game of crossed swords that is being conducted, out of earshot, as this is written. We are long past the days where any nominee can expect unanimous support for a graceful Congress. But so long as this outcome does not look in doubt, it shall remain difficult to find it in reruns. I feel true to my position on the hearings precisely because I have not seen them live.

Posted by msoller at 10:06 AM | Comments (0)

Judging by Machine

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 by msoller at 09:52 AM | Comments (0)

You Know Better, Ref!

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 by msoller at 07:00 AM | Comments (1)

September 12, 2005

Ya Gotta Be Kidding Me, Ump!

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 by msoller at 03:33 PM | Comments (0)

Asked and Answered

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.

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 by msoller at 09:27 AM | Comments (0)

Don't Expect a Coronation

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?

First, can Roberts explain his views on the most controversial issues in a way that does not cause Democratic Senators to oppose him? Roberts has expressed, in memos and briefs he signed, many of the same views that caused Robert Bork to be rejected in 1987. Roberts has questioned constitutional protection for a right to privacy, urged the overruling of Roe v. Wade, and argued that there is no constitutional protection against gender discrimination. How will Roberts explain these views to the Democratic Senators? Can Roberts point to anything in his record that he won't be the fifth vote to overturn abortion, to eliminate affirmative action, to dramatically change the law to allow more aid to religion?

Second, will Roberts' answers leave the Democrats with the sense that they have no idea what he stands for and thus will try and oppose him on that basis? Roberts' supporters have tried to argue that his memos from the early 1980s were too long ago to be relevant in assessing him now, that the briefs he signed as Deputy Solicitor General are irrelevant because he was serving a client, that the memos he wrote in the Solicitor General's office must remain secret, and that he should not state his views on key issues during the hearings. But if Roberts takes these positions, Democrats likely will say that they cannot confirm him because Roberts and the White House have closed off all avenues of information.

Third, what will the more moderate Senators on the committee do? For example, what will Senators Biden and Feinstein do? Senators Biden and Feinstein are generally more moderate than Senators Kennedy, Leahy, and Schumer. How Biden and Feinstein question Roberts, and the statements they make, may give the clearest signal as to whether Roberts path will be rocky. Feinstein, in particular, is likely to be concerned about Roberts record on reproductive choice, gender equality, and separation of church and state. Significant opposition by the more moderate Democrats could spell a hard fight over Roberts.

Posted by msoller at 09:20 AM | Comments (0)

September 09, 2005

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

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 by msoller at 10:51 AM | Comments (0)

September 07, 2005

He Championed the States

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.

When William Rehnquist sat down to pen a history of the Supreme Court in the late 1980s, he reflected on how Alexander Hamilton viewed the Court as the "least dangerous branch." Given the overriding dominance of the Court in modern times, Hamilton seems in this the least prophetic founding father. Rehnquist was far more realistic.

Rehnquist's long association with the Court dated back to 1952, when this young Milwaukeean by way of Stanford law arrived to take a coveted clerkship with New Dealer Robert H. Jackson. Law clerk Rehnquist records that his California car had no heater — optional equipment in those days — but he would supply his own jurisprudential heat.

The Chief Justice was a soft-spoken man. Conversing with him was like an easy conversation with a backyard neighbor. But the Chief's core values were anything but indifferent. Central among these was an appreciation for constitutional structure. Before being promoted to the center seat, Rehnquist as an associate justice had convinced a slender majority that traditional state functions should not be subject to federal regulation. This revival of federalism lasted exactly 9 years, when Harry Blackmun changed his mind and left the states to fend for themselves, like any other political lobbyist, in the halls of Congress. This infuriated Rehnquist and he vowed that one day he would return the states to their proper place.

He did. If there is a core element of the Rehnquist history, it is that we are a democratic republic that is healthier when "we the people" can experiment with different answers to hard questions. In this, Rehnquist wasn't pro-life or pro-abortion, he wasn't for or against gays — he was simply for letting you and me in our several states make up our own mind — without the Court getting in the way.

Perplexed by the constant reports of his retirement, the Chief Justice vowed last July to serve "as long as his health permits." He kept his promise. Now, with the passing of William Rehnquist, there is good reason to believe that John Roberts, his nominated successor and former clerk, will secure the Rehnquist legacy and enhance it. Indeed, the sentiment of the essayist seems quite apt:

"They are not dead who live in lives they leave behind. In those whom they have blessed, they live a life again...."

Farewell to the Chief.

Posted by msoller at 03:17 PM | Comments (0)

September 06, 2005

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

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.

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.

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 by msoller at 09:32 AM | Comments (1)

September 04, 2005

Rehnquist: Rapid Reactions *UPDATED SUNDAY*

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.

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.

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.

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 by msoller at 07:27 AM | Comments (2)

August 28, 2005

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.

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.

And the University of Chicago's Cass Sunstein had his back:

The Rehnquist court has invalidated more than three dozen acts of Congress, and some of those invalidations are extremely hard to defend.

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

Richard Epstein refused to take a side:

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.

Hamilton took aim at Lazarus:

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.

Liberals make a major misstep when they accede unlimited, or unchecked, power to Congress, especially in an era when gay marriage is on the table. The institution of marriage is fundamentally a state-law issue. Federal intervention is unconstitutional under existing case law. Preserving states' rights in areas like gay (or not gay) marriage serves everyone's interests in the long run — more experimentation and more power to those out of power in D.C. On Eddie's reasoning, though, Congress could usurp the state's power over marriage at will and impose a one-size-fits-all marriage formula on the country.

Lazarus shot back:

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.

Erwin Chemerinsky reminded us of the showdown just ahead:

Will Supreme Court nominee John G. Roberts Jr. 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, Justice Clarence Thomas has argued that Congress' power to regulate interstate commerce should be limited to regulating economic transactions and that Congress' 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 Roberts' view, he should be denied confirmation.

Posted by msoller at 08:37 AM | Comments (1)

August 18, 2005

I Got Your "Unchecked Power" Right Here

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.

Professor Hamilton argues that the Court should narrow Congress's power in the name of protecting states' rights. But her last post reveals that she begs the key questions. She condemns "irresponsible enactments" and laments "unchecked power." Neither of these criticisms reflects the reality of the Supreme Court's decisions.

As for "irresponsible enactments," the Court used federalism to invalidate a law requiring states to clean up their nuclear wastes and to strike down a statute requiring states to do background checks for permits for guns. The Court used federalism to invalidate a federal law that allowed victims of rape and domestic violence to sue in federal court after finding, in a voluminous legislative history, that state courts often failed to provide adequate remedies. These hardly were irresponsible enactments.

As for "unchecked power," state and local laws that violate individual rights always have been reviewable in the courts so it is wrong to speak of "unchecked power." Indeed, the Supreme Court's federalism decisions have enhanced the unchecked power of state governments by greatly expanding sovereign immunity. Because of the Rehnquist Court's decisions state governments cannot be sued, in federal court or state court or federal agencies, without their consent. For example, the Supreme Court has held that a state cannot be sued if it violates patent law or discriminates on the basis of age or fails to pay overtime as required by law. This is unchecked power.

The crucial question is where John Roberts in on these issues. Will he follow the precedents since 1937 which have accorded the federal government needed authority to deal with social problems? Or will he favor radical new limits on necessary authority? If the latter, he should be rejected.

Posted by msoller at 10:55 AM | Comments (1)

August 17, 2005

Congress Needs a Hip Check, Not a Blank Check

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 by msoller at 01:45 PM | Comments (1)

August 16, 2005

This Ain't a New Deal

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 by msoller at 02:32 PM | Comments (0)

Power's Playground

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 by msoller at 02:26 PM | Comments (0)

Someone to Watch Over Them

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.

The right answer to that is not to block them with state powers but to use the power that private organizations have (or least should have) to shape the moral views of their own smaller communities. This framework talks about strong rights of association and limited police power justifications. It sounds like an extension of the Lochner formula, whose revival would be a most welcome development here as in the area of economic liberties.

I also take issue with the Sunstein position that Senator Specter is onto something good when he raises the usual anxieties over the commerce clause. I can’t think of any strong reason why "humility and modesty in reviewing the decisions of a coordinate branch of government" squares with a sensible system of judicial review. It certainly should not be used to give Congress a blank check on civil liberties issues. Nor should it allow the federal government to run roughshod over the states which also count as a coordinate branch of government.

Perhaps there is something in decisions like Lopez and Morrison which give others pause, but I can see no reason for having the federal government weigh in with a second set of sanctions on matters such as gun usage and criminal rape which are already dealt with under state laws. The question here is whether there is any strong textual, structural, historical or functional argument that supports the extravagant use of federal power under the commerce clause. I have yet to see any demonstration in favor of the modern expansionist position on any of these grounds.

Posted by msoller at 02:13 PM | Comments (0)

Congress Should Mind Its Own Business

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.)

With respect to Eddie's examples, just which "righteous" lawsuits has federalism precluded? The end of the Religious Freedom Restoration Act meant, e.g., that parents could no longer claim the right to avoid child support because they lived in a religious commune that required them to keep all of their money there. It meant religious groups had to obey neutral, generally applicable laws, which is as it should be.

Garrett held that the states could not be sued under the ADA, but that is hardly a blow to civil liberties, because the fact is that virtually every state recognizes disability rights. The ACLU quickly settled the ADA cases from other states that were pending at the Court so that the Court would have to address the Alabama [Garrett] case, because that was the only state without disability rights. The Court, therefore, has struck down redundant legislation. And why is that? Because the states are no longer the backwater for civil rights they were in the ’60s. The same interest groups that lobby at the federal level have been lobbying at the state level for years.

I think if the Court had decided Raich, the medical marijuana case, differently, you and other liberals would look at federalism differently. But Raich was decided incorrectly, to put it mildly.

Posted by bbuhler at 12:28 PM | Comments (0)

What About States’ Wrongs?

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.

You won’t find me extolling Congress’ virtues. As Marci notes, Congress passed the unfortunate Schiavo bill. But the bill — as subsequent events showed — was almost totally symbolic and never posed a realistic threat to Florida’s control over family law and end of life matters. (Indeed, it would not have passed Congress if it had been really substantive.)

Moreover, if, as I suggested, the federal courts curb political gerrymandering, it would (as many scholars have noted) have the effect of bringing to Washington many more moderates of both parties — thereby making future Schiavo bills that much less likely. In any event, the real problem with Congress is not that it over-intrudes on state prerogatives, but that it doesn’t do enough to tackle the country’s big national problems — which is why I put additional judicial checks on congressional power rather low on my priority list.

Posted by bbuhler at 12:27 PM | Comments (0)

The Federalism Facade

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.

Professor Hamilton’s defense of the importance of state and local governments — they are laboratories for experimentation, they are closer to the people, they are less likely to be captured by special interests — really misses the point. No one is talking about eliminating state and local governments. Nor have any of the Supreme Court’s decisions concerning federalism had anything to do with these values. The Supreme Court’s decisions about federalism over the last decade, until the last couple of years, have simultaneously invalidated desirable federal social legislation and preempted important state regulations of business.

In the name of federalism, the Supreme Court struck down federal laws requiring the cleaning up of nuclear wastes, mandating background checks for firearms, prohibiting guns near schools, allowing victims of gender-motivated violence to sue, expanding protection for free exercise of religion, and permitting state governments to be sued for discrimination based on age and disability. Contrary to Professor Hamilton’s assertion, none of these cases were places where state experimentation is desirable; nor are they instances where limiting Congress’s power served any of the important values she identifies. At the same time, the Supreme Court found state and local laws to be preempted by federal law in areas such as regulating tobacco ads near schools, creating liability for unsafe products, and requiring insurance companies to disclose unpaid obligations to victims of the Holocaust and their descendants.

Will John Roberts follow such a conservative agenda of using federalism as a guise to strike down federal civil rights and regulatory laws, while protecting business through broad preemption? That is what Senators need to know.

Posted by bbuhler at 12:16 PM | Comments (0)

Hey Eddie, Remember Schiavo?

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.

Liberals make a major misstep when they accede unlimited, or unchecked, power to Congress, especially in an era when gay marriage is on the table. The institution of marriage is fundamentally a state law issue. Federal intervention is unconstitutional under existing case law. Preserving states' rights in areas like gay (or not gay) marriage serves everyone's interests in the long run — more experimentation and more power to those out of power in DC. On Eddie's reasoning, though, Congress could usurp the state's power over marriage at will, and impose a one-size-fits-all marriage formula on the country.

In any event, by saying that he is more concerned about the power of the Court and the president, he has confused the separation of powers with federalism. That comparison does not begin to meet the objection from the co-sovereign states when Congress overreaches.

Posted by bbuhler at 12:14 PM | Comments (0)

At Least Congress is Elected

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.

There is one way in which the Court could significantly improve Congressional performance — step in (as it failed to do a year ago) and put an end to the political gerrymandering of congressional districts that insulates all but a handful of incumbents from serious electoral challenge. If congresspersons really had to compete for their jobs every two years, we all would be a lot better served.

To be sure, further augmenting "states' rights" at the expense of Congress is ill-advised. While there is still utility to the concept of the states acting as "50 laboratories" for good policy ideas, state and local governments are (among other flaws) more easily dominated by special interests -- as the homeowners in New London found out the hard way. So while I count myself a member of the party out of power in Washington, I'm not counting on state governments to come to my political rescue. I'd rather just have an improved electoral system and let the chips fall where they may.

Posted by bbuhler at 12:13 PM | Comments (0)

August 15, 2005

We’re Too Connected for a Weak Congress

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.

Some technicalities: The nondelegation doctrine, said to require Congress to impose sharp limits on the executive discretion, has doubtful roots in the Constitution itself (and it would require courts to assume an exceptionally difficult role). To be sure, the commerce clause doesn't give Congress the power to do whatever it wants. But in an interdependent economy with free mobility, actions in one state (including racial discrimination and pollution) often affect those in other states. Congress is entitled to respond to that fact. Section 5 of the Fourteenth Amendment gives Congress broad authority to enforce that amendment.

Technicalities to one side, the great court of appeals judge Learned Hand once said that the "spirit of liberty is that spirit which is not too sure that it is right." Those who want the Court to adopt an agenda against Congress are too sure that they are right.

Posted by bbuhler at 01:54 PM | Comments (0)

Prove It, Congress

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.

Raich involved a challenge to the application of federal drug laws to those Californians who by state law are authorized to use marijuana under a doctor's care for relief of symptoms that do not respond to conventional medicines. Even though the marijuana provided was grown entirely within California and was provided to patients without being bought, sold, or bartered, six members of the Court said such patients could be federally prosecuted as a valid exercise of Congress' regulatory power over interstate commerce. But there was nothing either interstate or commercial. It's like the old saw, if we had some ham, we could have some ham and eggs, if we had eggs. Writing for the Court's majority, Justice John Paul Stevens relied heavily on Wickard v. Filburn, a 1942 decision, which federally limited the amount of wheat a farmer could grow on his own farm for his own family's consumption. By the Court's own characterization, Wickard pressed the outer limits of federal power. In Raich, the Court extended federal power even beyond those limits by holding that Congress could prevent a woman with a brain tumor from using a homegrown substance to survive.

Harsh? Yes. Unconstitutional? Apparently not to six members of the Court. What would a Justice Roberts do? His opinions on the D.C. Circuit suggest he would be respectful of Congress' judgment when it was warranted to meet a truly national problem beyond the individual competencies of the states. But where, as in the Raich case, Congress itself makes no findings about the effect of medicinal marijuana use on federal efforts to control the recreational use of marijuana, I suspect Justice Roberts would likely ask for more than conclusory assertion of power. It is not enough for the Court to conclude that Congress could have concluded there was a supervening national problem, even if it didn't and even if no actual proof was offered that it could.

Posted by bbuhler at 01:53 PM | Comments (1)

Clip Congress' Wings

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.

The question thus posed — Should the Supreme Court rein in Congress' power? — makes the editors of the Los Angeles Times into legal realists by default. The issue is set up as a power struggle between two branches of government, where the “should” concedes a wide range of political choices to the Court in the exercise of its power of judicial review.

But that is not the correct way to think of the question. Better first get a clear sense of what the Constitution says about this subject. That document is chock-filled with limitations on what Congress can do. These come in two flavors: structural and rights based.

The original plan had held that Congress had only strictly enumerated powers, with the residual police power left in the state. The modern readings of the commerce clause do violence to that understanding, and in my view the only correct question is not whether the cutback is required in principle, but whether it is possible to achieve that vital goal given the reliance interests that have grown up on the strength of the post-1937 order.

The Congress also is subject to the limitations of the Bill of Rights. On this score the political divisions between right and left are less salient because the banner of judicial restraint does not square well with most of the Bill of Rights, which, after all was directed originally to the federal government.

So in one sense the answer to the question is easy: of course the Court should reign in the power of Congress, for otherwise we abandon judicial review. And more to the point, the massive federal government has grown far beyond the basic constitutional framework. The Court should use its powers to clip Congress’ wings, far more than it has done to date.

Posted by bbuhler at 01:51 PM | Comments (0)

Over-mighty Congress a Foe of Private Property, Pot

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.

Where Congress's overreaching is most apparent is with the Religious Land Use and Institutionalized Persons Act, which has been a scourge on residential neighborhoods. Everyone was upset about the Supreme Court's decision in Kelo, which permitted local authorities to have broad power to define "public use" and, therefore, developers to overrun private homeowners. It was a dismal decision (as Justice O'Connor once again explained in dissent). But RLUIPA put Congress in the position of devaluing and ruining residential homeowner's neighborhoods by giving religious entities the power (both political and in court) to get around local zoning laws to the detriment of their residential neighbors. Religious entities have exercised this power all over the country, leaving homeowners in the same position as Kelo left them — defenseless. RLUIPA invades the last bastion of local control, land use, which is inherently local, and is the very best evidence that Congress sees no limits on its power. And, as the Framers understood so well in King George III's shadow, unlimited power is tyrannical power.

Posted by bbuhler at 01:44 PM | Comments (0)

August 11, 2005

Last Week's Question

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

Posted by msoller at 12:38 PM | Comments (0)

Ignore the Flap, Pay Attention to the Right Wing

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.

The liberals on the 1980 Supreme Court -- Brennan, Marshall, and to some extent Blackmun -- have no successors on the current Court. Nor does Justice Douglas, an influential figure on the Warren Court. On many issues, Scalia and Thomas are far to Rehnquist's right, and Rehnquist was on the extreme wing of the 1980 Court (having been long known as the "Long Ranger"). In short: What was left in 1980 is gone; what was right is now center; what was centrist is now left; what is now right did not then exist.

On the lower courts, the numbers show that in terms of sheer percentage of liberal votes (admittedly a crude measure), the Bush-Reagan-Bush appointees are significantly more conservative than the Nixon appointees -- and that the Clinton appointees are significantly more conservative than the Johnson and Carter appointees.

This shift is hardly illegitimate. (And I don't approve of the liberal activism represented by Brennan and Marshall; in my view Roe v. Wade was itself a blunder.) But it's been massive. The relevant Republican leaders worked extremely hard on these issues in both the White House and the Senate. When Clinton was president, the Senate Judiciary Committee, led by Senator Hatch, had an exceptionally powerful role, often operating as a de facto veto. They acted as if ideology mattered. The Republicans on the Committee made clear that they would accept Ginsburg and then Breyer; they indicated that others were unacceptable. (Ginsburg and Breyer are often described as liberals, but the Senate Republicans did not see them that way, nor did anyone who knew about their work on the lower courts. They're moderates, not liberals of the sort represented by Brennan and Marshall and Douglas. But it isn't worthwhile to get into that now.)

Of course some conservatives -- by no means all -- want a lot more.

Oddly, they identify the judiciary as the one institution that they don't "own" -- even thought the courts have shifted prominently to the right. (To be sure, Roe v. Wade hasn't been overruled, and some recent decisions do show a modest and legitimately criticized degree of liberal activism.) And some insiders are now worried that the Court will start to interpret the Constitution as if it overlaps with the views of the extreme right-wing of the Republican party -- by, for example, invalidating almost all affirmative action programs, giving far greater protection to property rights against regulatory takings, striking down congressional grants of standing to citizens, striking down campaign finance regulation and restrictions on commercial advertising, invalidating applications of the Endangered Species Act and the Clean Water Act, and much more. (Is all this "strict construction"? Movement in some of these directions might be fine, but keep in mind that the original understanding of the Constitution does not support the attack on affirmative action and regulatory takings, for starters.)

Of course the law moves slowly, and of course no judge will be lawless. (Judge Roberts himself seems to be extremely careful.) But the Rehnquist Court has already struck down over three dozen acts of Congress (!!), including provisions of the Violence Against Women Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. It is perfectly reasonable to worry that much more, and much worse, is on the way.

This is the background for the Roberts nomination, and it's impossible to understand current debates by focusing on minutiae and personal details without that background.

Posted by bbuhler at 11:57 AM | Comments (1)

August 10, 2005

God’s Laws or Man’s?

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.

While I do not think it is proper to grill a Supreme Court nominee on their religious beliefs (or as I said previously, their political views in general), I do think it is perfectly appropriate to ask about his or her view on the rule of law, and, especially, what would happen if they were interpreting a law (constitutional or legislative) that came into conflict with their personal beliefs. This is a quite separate question from the questions involving the originalist/activist divide. This is a question about character and conscience. It goes to the very heart of what I believe is most important and successful in the U.S.'s constitutional order. If a candidate will not or cannot uphold and enforce the laws made through legitimate processes, that candidate is quite literally unfit for the bench.

This is an especially important question in light of the fact the next Justice fills Justice O'Connor's seat. She dedicated tremendous energy to teaching developing democracies about the rule of law. She was passionately dedicated to the principle.

Posted by bbuhler at 11:09 AM | Comments (0)

August 09, 2005

Pro-Bono + Liberal Cause = Next to Nada

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.

Ted Olson, for example, the former solicitor general, represented the plaintiff who challenged the University of Texas' affirmative action scheme. As far as we can tell, Roberts did not take on such cases; that has to mean something — if not that Roberts is a moderate (I am not making that claim), but at least that he is not governed by a strict conservative ideology.

What is really striking out of the whole episode is how both conservative and liberal groups, and the media, are making enormous inferences about Roberts based on extremely limited information. It would be like trying to predict whether someone will make the All-Star team based on a few years in the minor leagues. This only means that the hearings will be decisive (if that were not clear before), and given Roberts' demeanor and the Republicans' majority in the Senate, his confirmation even more likely.

Posted by msoller at 12:38 PM | Comments (0)

Specter's Threat

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.

The ineffable search for the mainstream has led us to the happy conclusion that a majority of the Supreme Court, however fragile, may sit outside its banks by finding that some matters are beyond its power to legislate. Worse still, Specter’s comments make him sound more like a man who is more intent on preserving his own prerogatives than in serving the public at large. As such, he reminds us of the wisdom of James Madison who reminded us that “enlightened statesmen will not always be at the helm.” Congressional incompetence is not the only issue in this case: faction and excessive concentration of powers is surely high on the list, and for that ill competition among the states provides some protection.

Specter’s thinly veiled threat not to confirm justices why don’t play ball should be understood for just what it is, an effort to secure precommitments on particular substantive issues which, if successful, will surely undermine the independence of the judiciary, which is needed in part to rein in Congress that doesn’t always respect its constitutional role either. The real challenge should be to Senator Specter to explain why only an omnicompetent Congress can protect the fundamental rights of all citizens, including the right to be left alone. On that one, he sounds like a man who doesn’t have a clue.

Let us hope that Roberts holds ground and does not get sucked into disputes about decisions that are likely to come before the Court.

Posted by msoller at 10:55 AM | Comments (2)

August 08, 2005

Big Cases, Big Questions

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.

As I have argued more thoroughly elsewhere, conventional objections to specific case queries are bunk. A nominee who candidly critiques past cases does not “prejudge” the issues raised therein should they recur in future litigation, any more than sitting Justices who themselves wrote public opinions and dissents in (or law review articles and speeches about) those very cases have prejudged the relevant issues. A sitting Justice’s job is to decide and explain cases; a nominee’s job is to give Senators information about the kind of Justice he will likely be.

While explicit or implicit promises about future rulings are out of bounds — such promises if sought and given would indeed compromise judicial independence — a nominee’s disclosure of specific views about actual past cases does not commit him to rule any particular way in the future. He remains free to change his mind if persuaded by sound legal arguments in later cases. Just as then-Justice Rehnquist in his confirmation hearings for Chief Justice in 1986 could have properly told Senators that his own prior Supreme Court writings as Associate Justice accurately reflected his constitutional vision, so Roberts can explain to Senators that he agrees — or disagrees — with particular past opinions of Rehnquist or others.

Posted by msoller at 04:38 PM | Comments (0)

It's a Weak Signal

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 by msoller at 04:34 PM | Comments (0)

He's a Helper. So What?

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.

At the risk of beating a dead horse, the fact that so little of real value can be gleaned from Roberts' time in private practice only makes the release of additional documents more imperative. As Professor Hamilton notes, perhaps the most troubling aspect of Roberts' persona is the degree to which he has kept his personal views under wraps. As a result, we have all been reduced to over-analyzing those few clues, however unenlightening, that are available. This may make for an effective way to construct a who-done-it mystery novel, but it really isn't the right way to go about confirming a Supreme Court nominee.

Posted by msoller at 02:38 PM | Comments (1)

August 07, 2005

Maybe He’s Just a Nice Guy

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.

In my view, Romer was wrongly decided since the record of the initiative convinces me that the people of Colorado simply wanted to remain neutral with respect to homosexuality in public law, making it neither a basis for preference nor discrimination. Reasonable minds can differ and a majority of the justices did, seeing the record as manifesting animus and disadvantaging homosexual persons in ways that heterosexual persons were not. It would not surprise me if John Roberts wanted to impartially study the specific facts of Romer v. Evans further to make up his own mind as to which view was the more accurate statement of the facts. What better way to do that than to help a less experienced advocate by role-playing in a moot court? And by the way, with all of this newspaper's regrettable fascination with John Roberts' Catholic faith, which the text of the Constitution prescribes should be of no relevance, it is perhaps worth noting for the LiveCurrent record that it is the teaching of the Catholic faith not to discriminate invidiously against anyone on the basis of sexual orientation. The Catholic faith injunction is to not lend approval or affirmation to homosexual practice. The Colorado language troublingly intermixed orientation and practice.

In that sense, while I cannot speak for John Roberts' particular motivations for his private volunteer activity on this occasion, it is not farfetched to understand it -- beyond being an act of professional courtesy -- as a manifestation of simply wanting to see a just outcome -- one that neither falsely accused an entire state of discriminating out of hatred or one that allowed hatred to subvert the law. An intelligent mind would want to know what exactly was afoot, not for purposes of supporting (or disavowing) gay activism or vindicating a given faith teaching, but for the proper application of the equal protection of the laws.

Posted by bbuhler at 12:35 PM | Comments (3)

All Issues Aside

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.

Second, Roberts' involvement with Romer v. Evans does not reveal anything useful about his views on key issues. The case involved the constitutionality of a Colorado initiative repealing all laws protecting gays and lesbians from discrimination. His law firm, Hogan and Hartson, agreed to do a friend of the Court brief against the initiative (which the Supreme Court struck down 6-3). Hogan and Hartson is a large firm and undoubtedly took many positions, especially in friend of the court briefs, that Roberts disagreed with.

Apparently, in this case, Roberts offered advice to the lawyers in his firm and the lawyers representing the plaintiffs. This was not a major involvement on his part. It was not included on his list of pro bono activities that he provided the Senate Judiciary Committee. I admire him for offering his assistance to the lawyers on this issue. But beyond that, it is not possible to generalize anything from his participation, not even whether he would have voted with the majority opinion written by Justice Kennedy or the dissenting opinion of Justice Scalia.

Posted by bbuhler at 11:38 AM | Comments (0)

Don’t Read the Tea Leaves

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.

Over and over again the central theme should be this: the information you get from reading the resume and poking around is far likely to lead you to the right result than a detailed effort to trap out the nominee on the stand - the courtroom metaphor seems appropriate. It would make no more sense for some conservative republican member of the committee to take after Roberts on this issue than it would be Chuck Schumer to try to dissect his contribution for some political advantage. There is of course nothing that anyone can do to stop those who think that tough questions are the appropriate way to deal with this issue. But the arms race in questioning is only likely to produce results that everyone in the long run will regret, even if Roberts is confirmed. A short hearing with a quick affirmative vote is required.

If Erwin Chemerinsky is correct in his outlandish reading that this case presents extraordinary circumstances that call for a filibuster - or does this change his view? - then every nominee over the age of 35 will be fair game for the same scorched earth tactics. People should relax and learn to trust in the good faith of nominees of all political stripes.

Posted by bbuhler at 11:25 AM | Comments (1)

He Might Be a Souter Moderates Can Love

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.

One of the troubling aspects of Roberts' career is that he has been so secretive about his personal views. That indicates he is someone who is extraordinarily calculated, as opposed to devoted to his core convictions. Yet, someone who is an ideologue and calculating would not have permitted himself to engage in the Romer debate, because he would have been worried at every turn about how such a role (even such a minor role) might play in the future. (Trust me, there are plenty of ambitious individuals out there making just the same sorts of calculations every day of their lives.) So, again, this pro bono activity is good news for the middle, because it argues against a doctrinaire ideologue.

Of course, the far ends of the political spectrum are both upset, for different reasons. The far left, because this is likely to hurt fundraising resting on scare tactics. The far right, because there is such strong opposition to homosexuals, and, because, they are terrified of getting "another" Souter, Kennedy, or O'Connor on the Court. Their fears may be justified. All in all, this is the best news the moderates have received on the Roberts nomination yet.

Posted by bbuhler at 11:21 AM | Comments (0)

August 06, 2005

Last Week's Question

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

Posted by bbuhler at 11:59 PM | Comments (0)

August 05, 2005

Full Disclosure or Nuclear Borking

I have very much enjoyed reading and participating in the discussion this week. I think that we are discussing four distinct questions and it is important to keep them separate.

First: Should the Senate consider the views of a nominee in deciding whether to confirm? Marci Hamilton says no, that the Senate should consider only professional qualifications and judicial temperament. Surely, though, she does not believe that President Bush chose John Roberts without considering his ideology. Presidents always consider ideology and so should the Senate. A person's views determine how he or she will interpret the Constitution and thus must be considered.

Second: What views would make a candidate unacceptable? This, of course, depends one's ideology. Richard Epstein and I strongly disagree about what views matter because we are on opposite sides of the ideological spectrum on most issues. I believe that Robert Bork was properly rejected by the Senate because of his views that there is not constitutional protection for privacy rights, that gender discrimination did not violate equal protection, and that only political speech was protected by the First Amendment. I think that any nominee with these views should be rejected by the Senate. Thus, a nominee who believes that there is no constitutional protection for privacy, who is a likely vote to overrule Roe v. Wade, should be rejected.

Third: How should a nominee's views be determined? Everything that a nominee has written has to be considered. I disagree with Professor Epstein's claim that a person's academic writings or speeches don't reflect their behavior as a judge. Those sources are key indications of what a person believes and those beliefs likely reflect how the person will vote on the Court. Clarence Thomas wrote four separate articles before going on the Court saying that Griswold v. Connecticut and Roe v. Wade were wrongly decided. That is exactly how he has voted on the Court. The memos and briefs a person wrote as a lawyer also can give an indication of the individual's views, though the individual should be asked whether what was written accurately reflects his or her beliefs.

Especially for those without views detailed in prior writings, the only way to know will be requiring answers to questions. Professor Epstein points out that nominees did not even appear before the Senate until the 20th century. But that ignores that in the 19th century, twenty percent of all presidential nominees for the Supreme Court were rejected, almost all because of their ideology. I believe that knowledge is always better than ignorance and that nothing is gained by pretending that a nominee doesn't have views just because they haven't yet been put in writing.

Finally, is it appropriate for the Senate to filibuster a nominee whose views are deemed unacceptable or who refuses to answer questions? In 1968, Senator Strom Thurmond successfully filibustered two picks by President Johnson for the Supreme Court. Professor Epstein points out that the compromise in June that prevented the "nuclear option" reserved the filibuster for "extraordinary circumstances." I believe that a justice who would dramatically change the law in many key areas, or who refuses to give information so that this can be assessed, present such extraordinary circumstances. The key question for the Senate, and all of us, is whether John Roberts is that person.

Posted by bbuhler at 02:47 PM | Comments (5)

Have You No Sense of Federalism, Sir, at Long Last?

How about this?

Have you now or ever been a member of the Federalist Society? It seems sure that one of the senators will ask John Roberts this question. Is anyone else on this online discussion concerned about the McCarthy-esque tone of the question? To be sure, Judge Roberts hasn't helped matters by his efforts to deny ever having been a member of the group.

But what is so bad about the Federalist Society? It is generally made up of conservative and liberatarian lawyers and law students, and it performs a valuable function by serving as a debating club. Its membership has overlapped with prominent members of the Bush administration, but should that be surprising given that the administration is conservative and sometimes libertarian? Some of the concerns about the Federalists as a nefarious backroom network that really controls the legal arm of the Bush administration seems to fulfill Richard Hofstadter's description of the paranoid style of American politics. Unlike the American Bar Association, the Federalist Society does not take official positions on public policy issues.

Again, I wonder whether Roberts' critics have thought through their tactics. If being a member of the Federalist Society becomes a ground for bouncing someone from judicial confirmation, should being a member of the ABA be a similar disqualification? What about the American Constitution Society -- a group founded a few years ago by generally liberal lawyers and law students that parallels the Federalist Society? Should conservative senators deny anyone who dares speak or serves as a member/officer of the ACS a seat on the federal judiciary when the Democrats someday win the presidency? That would include, for example, Geoff Stone of Chicago, Robert Post of Yale, Drew Days of Yale, and Walter Dellinger of Duke, whom the web says serve as ACS officers.

In the interests of full disclosure, I have spoken at Federalist Society events (and ACS events too), as have, I believe, several others participating in this discussion.

Posted by bbuhler at 02:27 PM | Comments (1)

August 04, 2005

Roberts Guided by Principles, Not Preferences

A careful look at John Roberts Senate questionnaire reveals, yet again, why Democrat and Republican alike should vote to confirm him overwhelmingly. If Antonin Scalia was confirmed 98-0, there is every reason for the Senate to repeat its unanimous approval that it gave to Roberts for the Court of Appeals.

The questionnaire highlights a candidate of thoroughness, ability, and preparation. There is not a Supreme Court advocate or legal academic who would not admire the scope of the cases he has argued and prepared, and the knowledge he exhibits without pretension in simply summarizing them, as the Senate requested. His work since serving has associate White House counsel to President Reagan has included the full range of federal matters, including admiralty, antitrust, arbitration, banking, bankruptcy, civil rights, constitutional law, environmental law, federal procedure, First Amendment, health care law, Indian law, interstate commerce, labor and patent law. Ask any one of us on this blog to prepare lectures on that range of subject matter, and we would be reeling from exhaustion.

Most important of all, John Roberts reaffirmed his commitment to stay true to the judicial role envisioned by the Constitution. This is not a philosophy that will guarantee conservatives or liberals their favored outcomes. It will ensure, however, that if Congress or the states choose to adopt a conservative or liberal policy, John Roberts will not be substituting his personal preference. Judges, as John Roberts relates, "do not have a commission to solve society's problems, as they see them." This seems like a hard pill for some of Roberts supporters and his skeptics to swallow. Where, they demand, are you on banning partial birth abortion or approving same-sex marriage? Are you pro-business? Pro-labor? Answer: All or none of the above, depending upon what "we the people" enact into written law. Judge Roberts, of course, admits that it is not "judicial activism" to override a legislative or executive action when it invades protected rights or exceeds power granted, but in a democratic society "responsibility for policy making properly rests with those branches that are responsible and responsive to the people."

Senator Charles E. Schumer previously propounded a largely inappropriate list of substantive political questions for the judge to answer in his upcoming hearings on September 6. After reading Judge Roberts' questionnaire, the Senator seems to have come around a bit even boiling down his inquiries to a key question - in his words, "whether Judge Roberts will rule from the bench in a careful and non-ideological way, or will instead choose to make law or impose his will."

The answer is plain for all to see.

Posted by bbuhler at 11:05 AM | Comments (1)

What Extraordinary Circumstances?

I have just read Erwin Chemerinsky’s last post, which continues his campaign to force Judge Roberts to speak up or face the consequences of the filibuster. It is hard to conceive of a weaker case for “extraordinary circumstances” that might allow for this result. After Roberts bland, if prudent, written responses to questions, it should be clear that any such aggressive questioning will be skillfully parried by a general statement which rightly accords presumptive respect to most precedents. I cannot see how Roberts could be pried loose from that sensible position. The recent turn of events has disarmed too many of his thoughtful critics.

Ah, but what about the various claims, historical and ideological that Chemerinsky makes in favor of his aggressive stance? Here are a couple of reactions.

First, Chemerinsky refers to the fact that during the 19th and 20th Centuries, it was commonplace for the President and the Senate to look at the views of some nominee. The first point is of course unexceptionable. No one has ever contended that the President should ignore those views. How else should he proceed? But the role of the Senate needs to be specified. During the 19th Century, the uniform practice was that the nominee did not testify before the committee. The examination of the views took place on the strength of the available record, without all these private papers, and without the cross-examination. It is hardly a precedent for the aggressive interrogation sought today.

Second, Chemerinsky has too much confidence that his own views lie within any supposed mainstream. Perhaps one could argue 30 years ago that the New Deal Constitutional synthesis was the intellectual gold standard. But the world is a more divided place today than ever before. There are lots of different tributaries that wind their way down to the sea. No one has any monopoly of thought.

Third, there is a vast difference between what one thinks and writes as an advocate or academic and what one does when subject to the institutional constraints of a judge. Roberts’ point about stare decisis is, in a nutshell, that you don’t overrule cases just because you are convinced they are wrong. You have to go beyond that. How far, who can say? But it is just the kind of question on which one does not ask for precommitments. In this case we are drowning in information. The further inquiries pose a real risk to civility for very little gain. We have to go some distance to recover from the debacles that marked the Bork and Thomas hearings. Now is a good time to start.

Posted by bbuhler at 09:57 AM | Comments (2)

August 02, 2005

Watch It, Sunstein

With all due respect, Cass, I meant what I said. Ability, background, and character are and should be enough. Character encompasses issues like racism, so you have not persuaded me at least that specific questions about specific cases are appropriate, necessary, or even helpful.

Posted by bbuhler at 02:08 PM | Comments (1)

How Can We Ask Questions Without Holding an Inquisition?

Three related observations about the current debates, here and elsewhere:

1) Anyone who has had a substantial legal career will be easy to criticize and to caricature. The reason is that any such person will have said a few things that, taken out of context, look bothersome or worse. Those who objected to "Borking" were right to fear that any nominee can run into trouble, simply because it is inevitable that a lot of very talented and energetic people will be working on the other side. In the current era, a nominee is a little like someone who is facing a tough independent prosecutor, armed with infinite resources and a huge staff.

2) Notwithstanding some of the comments on this blog, no one believes that ability, background, and character are enough to justify confirmation. Republicans on the Senate Judiciary Committee were right to reject that view under President Clinton, and Democrats on the Senate Judiciary Committee are right to reject that view under President Bush. It's easy to identify views that would and should be disqualifying. Consider, for example, the view that the Constitution permits racial segregation or that the government can punish political dissent so long as there is no prior restraint. (Both of these views, by the way, can find some academic support.) On reflection, everyone agrees that a nominee's general approach to the Constitution matters and is properly taken into account.

In my view, John Yoo, Richard Epstein, and many others are clearly right to say that nominees need not agree with Roe v. Wade. And a nominee is perfectly entitled to refuse to answer particular questions about particular cases. But to accept these points is not to say that the Senate ought to investigate ability and background alone.

3) There is a lot of discussion of "the mainstream." But what's that? Different people use that term in very different ways.

Posted by bbuhler at 12:39 PM | Comments (2)

Don’t Rule Out Independent Thought

I am afraid that Roberts' critics believe that Senators should vote to confirm a nominee solely because of his or her bottom-line outcomes on specific issues, rather than his or her intelligence, legal ability, and background. Liberals seem to be leaning to oppose Roberts solely because they he may believe that Roe v. Wade was wrong, or that as a young lawyer he believed that courts had gone too far in some desegregation cases. This is a terrible idea.

First, it treats the Supreme Court justices as merely a representation of wills, not judgment. If only outcomes matter, why should we use a court to decide issues like abortion or desegregation at all? Why not simply elect politicians with long terms, say 10 years, and let them decide the issue, and let them do so without having to explain how they reached that outcome? Second, I wonder whether Democrats want to create litmus tests on these issues. Are Democrats unwilling to allow lawyers within their party to question certain decisions, such as Roe or the cases on desegregation remedies? Will that lead to a loss of creativity and, dare I say it, diversity, in the liberal legal community, and a corresponding drop in the quality of their judicial appointments, executive branch officers, and policy thinking? Third, would Democrats want Republican Senators to apply the same standards? If so, then Justices Ginsburg and Breyer likely would not be on the Supreme Court today, in addition to many lower court judges appointed by President Clinton.

Posted by bbuhler at 10:46 AM | Comments (1)

If He’s as Out There as He Seems, Bork ‘em

Putting aside Professor Epstein's insulting tone, I think that there are important issues raised by our exchange that are worth clarifying. First, I believe that it is appropriate for the Senate to consider the views of a nominee in deciding whether to confirm him or her. Never in American history has the president or the Senate looked solely at a nominee's professional qualifications. Indeed, on many occasions through the 19th and 20th centuries, the Senate has rejected presidential nominees for the Supreme Court because of disagreements with the person's views. An individual's views unquestionably affect, if not determine, how he or she will interpret the broad phrases of the Constitution.

Second, the Senate should reject a nominee whose views are out of the mainstream and who would dramatically change the law in a conservative direction. Robert Bork was decisively and appropriately rejected by the Senate because he believed that privacy was not protected by the Constitution, that equal protection did not forbid gender discrimination, and that the First Amendment protected only political speech. I believe that a nominee holding Bork's views should be rejected today.

There are many areas where Justice O'Connor was the fifth vote in the majority, such as in striking down restrictions on abortion, upholding affirmative action programs, allowing campaign finance regulations, and limiting government endorsement for religion. My view is that a nominee who likely would overrule long-standing precedents and significantly change the law in these areas should be rejected. Contrary to Professor Epstein's assertion, I accept that Republicans can and would exercise the same power for nominees who would move the Court farther to the left than they prefer. Many of President Clinton's picks for the lower federal courts were rejected by Republican Senators for exactly this reason.

Third, the Senate needs to know John Roberts' views on these and other key issues in deciding whether to confirm him. Professor Epstein mischaracterizes my position. In my last post, I said that the memos released last week are very troubling in what they reveal about Roberts' positions on all of these issues. On each of these questions, Roberts' expresses a view that is outside the mainstream and that would predict he would be a very conservative justice. But more needs to be learned, by reading other documents that he has written and by his answering detailed questions. What is particularly troubling about John Roberts is that all the information points in one direction. There is nothing in his record that shows any support for civil liberties or civil rights.

Fourth, if the record demonstrates that Roberts is likely to move the law much further to the right and jeopardize basic rights and freedoms, or if Roberts will not answer questions about his views, then it is entirely appropriate for Senate Democrats to filibuster. Senate rules provide for the filibuster and the compromise Professor Epstein refers to does not eliminate the filibuster. Quite the contrary, the agreement was to allow the filibuster in "extraordinary circumstances." Extraordinary circumstances should and must include a nominee who would radically change the law in a way that 40 Senators find unacceptable.

Posted by bbuhler at 10:45 AM | Comments (3)

Skip the Litmus, He Passes the Brains Test

The more I read of our debate, the more concerned I get about the independence of the judiciary, and the politicization of the process. Lady Justice is blind, which is to say she does not prejudge issues, so forcing a nominee to answer questions regarding how he would treat existing precedent is extremely problematic. If we have the hearing Eddie suggests, then we will have a situation quite like the situation Justice Scalia faced with the Pledge of Allegiance. Having expressed his view publicly on the issue, and the particular case itself, he had to recuse himself once Michael Newdow petitioned the Court. What litigant will not petition for recusal of Justice Roberts in a particular case where it is in the client's interest to get him removed from the case? Thus, on hot-button issues, he would be a non-factor, and we would have an 8-member Court, which cannot issue opinions when the divide is 4-4.

In any event, the ideal of an independent judiciary requires nominees of intelligence and good judgment, not any particular result in any particular case. Liberals concerned about Judge Roberts would do well to remember that more Republican appointees have become liberal on the Court (including Justice Scalia, if one looks at his flag-burning opinion, upholding the right to burn the flag for political purposes), than Democrat appointees have turned conservative. Judge Roberts surely passes the intelligence and judgment tests, and, therefore, questions about his particular views on particular issues or cases should be considered inappropriate, and, indeed, adverse to the larger interests of the country.

Posted by bbuhler at 10:42 AM | Comments (1)

Roberts’ Foes Are Drawing a Blank

I am mystified by Ed Larazus's assumption that my criticism of Erwin Chemerinsky counts as a reason to have a more exhaustive public debate on the issues that are likely to come before the Supreme Court. The obvious risk has always been there: Any effort to pin down a candidate on a particular issue requires him to prejudge a matter that may come before him. Indeed it could easily lead to the build up of resentments against his inquisitors.

It's an open secret that all those who want to dig up this information on Roberts wish that he would disappear into the woodwork. They are casting about for ways to make their own opposition credible, and thus far have come up blank. There is not the slightest chance they will change their minds no matter what he says. They don't need documents to push him with hard questions of the sort that ask: "How can you serve the American people well if you had a tour of duty in the Reagan White House." Or, "how can you justify attending events of the Federalist Society?" And they could of course ask him flat out, would he vote to overrule Roe or any number of other activities. His proper answer to the first question is that my work in the Justice Department reflects my official duties. His proper answer to the second is to say that he will not voice an opinion on matters that are likely to come before the court.

The right question to ask is whether the risks of this inquisition promise any payoff that helps the public weal. I don't think that it does with Roberts; and I don't think that it would for any future Democratic nominee who is rash enough to ignore the obvious fact that Roe does not accord sufficient respect for unborn life. This road moves in both directions. I think that we should block it, both ways. But then again I am a libertarian of sorts, who used to have his positions widely rejected in all public debates.

Posted by bbuhler at 10:40 AM | Comments (2)

August 01, 2005

Disclose the Documents, Let Competing Visions Grapple

It seems to me that Professor Epstein has unintentionally presented a compelling case for why we need a lot more information about Roberts.

He and Professor Chemerinsky disagree fiercely on just about every issue under the sun. Is it really so silly to think that a confirmation hearing ought to be directed at finding out where the nominee stands on (or at least how he approaches) the many incredibly important issues Professor Epstein lists (and other issues as well)?

With the Supreme Court more powerful and more closely divided than ever, surely the public has a right to know the views of someone who will likely serve on the high court for 25 or 30 years. And pinning Roberts down really isn't possible without more documents. For some, the point of pushing document production may be that it is the only hope for derailing Roberts — faint though that hope is. But that is not the only justification. To me, the point of these hearings is to create a national forum for discussing competing visions of the Constitution.

Opportunities for this important enterprise don't come along very often. And if we don't get access to Roberts' paper trail, my fear is that the hearings become something of a sham — with Roberts defending a watered down and politically unobjectionable constitutional vision that may not reflect his true thinking. The country is owed a candid public debate.

I hope we get one.

Posted by bbuhler at 05:14 PM | Comments (7)

Has Roberts Restrained His Inner Right Winger?

As Erwin suggests, in light the Roberts memos from the early 1980s, it will be impossible to properly evaluate Roberts' nomination without at least some access to memos from his later stint as the political deputy in the solicitor general's office during the first Bush administration. Roberts' Reagan era memos paint a picture of a hard-edged right-winger with a highly-developed contempt for the Supreme Court as it was then constituted.

This stands in stark contrast to the smoother, more collegial, and open-minded image that Roberts projects today, more than two decades later. Who is John Roberts really? Inquiring minds want to know. And this inquiring mind, at least, wants to know a lot more about Roberts' view of "judicial restraint."

This is a virtue Roberts extols over and over in his early memos, but his invocation of this principle often sounds like a results-oriented attack on liberal judicial precedents to which he objects rather than a principled stand he would apply across the ideological spectrum. (As an aside, I don't necessarily share Roberts' professed affection for judicial restraint; but I abhor the hypocrisy of embracing restraint only when it suits one's political agenda — and that's the risk here). Of course, it is quite unfair to judge a person based on 23-year-old writings, which is why we need public access to enough more recent materials to make an informed judgment about what Roberts really thinks and why.

Posted by bbuhler at 11:42 AM | Comments (2)

Chemerinsky's Parallel Universe

I just had the dubious honor of reading Erwin Chemerinsky's none-too-subtle effort to derail the Roberts nomination. I think that it is wholly off base for a number of key reasons. First, there is the question of how much information we need to have about Roberts to make any judgment. For Chemerinsky, this was easy: one look at the resume and he knew that Roberts was not the man for him. All the rest of the information that he would like to have (including confidential internal memoranda at the Solicitor General's Office that have never been released in cases of this sort) is a desperate effort to find some choice tidbit that would submarine a nomination that looks highly likely to go through.

Every bit as unsound is the implicit standard of judgment that he would apply to this case. Anyone who is conservative on civil liberties and civil rights is persona non grata. It seems clear that Chemerinsky thinks that Sandra Day O'Connor now represents the extreme right edge of acceptable mainstream candidates. A Rehnquist clone (or clerk, as it turns out) is beyond the pale. There is no parallel constraint that would apply to liberal candidates chosen by a future democratic president.

What makes his position so bizarre is that he thinks that senators - presumably all of them - are duty bound to follow his lead, even to the point of adopting the nuclear option of a filibuster, which mercifully has already been ruled out by the confirmation deal struck by the two parties late last week.

And, as ever, Chemerinsky thinks treats his own controversial hobbyhorses as revealed truth, whether we speak about abortion (dressed up as reproductive choice, which covers a far wider sphere of activity), campaign finance regulation (which includes major incumbent protection provisions), separation of church and state (which could easily rule out sensible accommodations), affirmative action (which could include all sorts of reverse discrimination), and the like. These are hard questions, on which, as if by accident, Chemerinsky may stumble on a right answer. But his agenda is wholly irresponsible as a guide to the confirmation process. Democrats would be well advised to ignore such foolish advice.

Posted by bbuhler at 10:30 AM | Comments (3)

Is the Young Ideologue the Father of the Middle-Aged Judge?

As it happens, I was in the Office of Legal Counsel of the Department of Justice close to the time that John Roberts was special assistant to the attorney general, and I worked on some of the same issues. (Apparently we overlapped for a very short period.) My impression, from what has been disclosed thus far, is that he was a distinctive "type" as a young lawyer — technically good, no doubt about that, but more of a "movement" lawyer, with the standard inclinations, than the rest of his record would suggest.

I confess that I'm surprised by this. It's not as if any of his views, as disclosed thus far, is irresponsible, reckless, or indefensible — not at all. It's only that their consistency and tone suggest someone far more predictable, and with stronger ideological tendencies, than (say) Ted Olson, my boss at the time and later President George H. W. Bush's solicitor general. (The Reagan administration had a number of lawyers, including Olson and Ken Starr, who were loyal to President Reagan, politically conservative, technically excellent, and so highly professional, in their legal work, that ideology was neither here nor there. They were exceptional public servants.)

On the other hand, many lawyers do not have the same views at fifty as they held at twenty-five, and very possibly, John Roberts is less predictable now than he appears to have been then.

Posted by bbuhler at 10:29 AM | Comments (0)

July 31, 2005

Roberts’ Federalism Might Ambush the White House

The Roberts record sheds light on three issues - Roe v. Wade, the separation of church and state, and congressional power. The Bush Administration is opposed to the first two, but has not carried forward the small-government beliefs of earlier Republican Administrations. If the record can be trusted, it would appear that Roberts will be inclined to continue the opposition to Roe and the separation of church and state, but he appears likely to reject the Bush administration's position on federal power in favor of the Reagan administration's approach.

On the first two issues, there is great irony that John Roberts would have been involved in preparing Justice O'Connor for her hearings, when he was simultaneously working to push an agenda that would be in opposition to her (majority-making) views on Roe v. Wade and the separation of church and state. He will now be in a position, especially when it comes to church-and-state issues, to turn the Court toward the views he advocated in previous administrations.

Another irony here is that a solid majority of the American people do not favor overturning Roe and do not favor the end of the separation of church and state. This means - especially in light of the fact there is so little on the record about his personal views that it is virtually impossible to deny him the seat - that the hearings will not be about Roberts, but rather the next presidential nomination.

On the issue of congressional power - where he is in accord with Justice O'Connor (and not so much with this administration) - his judicial opinions reveal an inclination to read Congress's power as one that is enumerated, not plenary. He has also shown sympathy to states' rights. There was a time when liberal academics and politicians alike would have equated such a position with an anti-civil rights position. This uninformed bias continues, most recently demonstrated by The New York Times referring to federalism as an "antique" doctrine, as though the Constitution's very structure is a worn out decoration. This unprincipled attack on the principled application of federalism, though, has been shown for what it is - politically motivated, rather than clear-headed. Federalism is the answer for the party that does not enjoy power and privilege in Washington. Only a Supreme Court that interprets states' rights with vigor can provide this outlet for the minority party. The sitting Supreme Court let us all down when it favored federal regulation of illegal drugs above intrastate cultivation and use of medical marijuana in the Raich decision. That case, however, should make it clear to anyone who doubted it before that where states' rights are strong, the minority party's policies have the chance to make a difference. Therefore, both parties should applaud such a position.

Posted by bbuhler at 09:35 AM | Comments (1)

Medicare Won't Be Toad Beneath Roberts' Harrow

I have received more than one anxious phone call asking me about the vast implications of John Robert's daring suggestion that the hapless toad does not move in interstate commerce. That daring proposition has been taken by Senator Kennedy to indicate that the end is near with Medicare and other social welfare programs as unnamed radicals (like myself) take over the Constitution and undo the many social reforms of the New Deal and beyond.

As a matter of first principle, I think that there is a lot to be said for the proposition that the New Deal reforms were inconsistent with the basic structure of the Commerce Clause, but I have no wish to defend that proposition here. There are, however, two points that should be made about this effort to paint John Roberts into a corner that is too horrible to contemplate.

First, the point that Roberts was musing about in his brief dissent from a denial of an en banc hearing had only to do with the reach of the original Lopez decision that held that certain non-economic activities that were localized in one state were outside the reach of the federal government. If one places a house on top of the habitat of a toad, do we measure the scope of the Endangered Species Act by the behavior of the toad, or the scope of the economic enterprise that put the houses on top. That is just the kind of nice incrementalism puzzle that lower courts should ask about the reach of decisions.

Second, Lopez is a timid decision in terms of any grand scheme to turn back the clock to some earlier age. The most important point in the decision is that Chief Justice Rehnquist's ingenious efforts to find some activities that fall outside the scope of the Commerce Clause went out of its way to preserve and reaffirm the Court's pivotal 1942 decision in Wickard v. Fillburn that the commerce clause extended to all economic activities whose combined impact influenced the amount of goods or price of goods that moved in interstate commerce. More concretely, it allowed the US Department of Agriculture to regulate the consumption of homegrown wheat by one's own farm animals. If that is all right today, the New Deal revolution is firmly in place, however much I may rue that result. And nothing that John Roberts wrote suggests that he will make things otherwise.

Too bad.

Posted by bbuhler at 08:02 AM | Comments (2)

Records Reveal a Civil Rights Foe -- Let's See the Ones on Roe

The more that is learned about John Roberts the more troubling he is as a nominee for the Supreme Court. The memos released this week by the White House show an individual who was openly hostile to civil liberties and civil rights. He even criticized William Bradford Reynolds as being too liberal. Reynolds was the very conservative head of the civil rights division at the Justice Department who was rejected by the Senate when nominated to be a deputy attorney general because of his reactionary views. Not even Roberts most ardent defenders have pointed to anything in his record that indicates that he will be other than extremely conservative on issues of civil liberties and civil rights.

The Senate must know John Roberts views before deciding whether to confirm him. Unfortunately, the Bush White House is doing all they can to prevent Roberts’ views from being known. For example, this week they refused to provide memos that Roberts wrote while working in the solicitor general’s office. These would provide an important indication of whether Roberts believes what he argued to the Supreme Court: that Roe v. Wade should be overruled. The White House invokes the importance of secrecy of communications within the solicitor general’s office. But this has to be balanced against the importance of the Senate knowing Roberts’ views before voting on him. The White House can decide that secrecy is more important and withdraw Roberts’ nomination. But if they are putting him forward for the Supreme Court, they should not be hiding documents that may give a clear indication of Roberts’ views on important issues.

The key question for the Senate, and especially Senate Democrats, is whether Roberts will vote to radically change the law in a conservative direction, overruling long-standing precedents protecting reproductive choice, allowing campaign finance regulations, permitting affirmative action, and preserving a wall separating church and state. Unless Senators are satisfied that Roberts will be in the mainstream on these issues and follow in Sandra Day O’Connor’s footsteps, they must deny him confirmation, by filibuster if necessary.

Posted by bbuhler at 08:01 AM | Comments (4)

July 30, 2005

Last Week’s Question for the LiveCurrent Court: Could adding further restrictions on Roe vs. Wade accomplish the same goal as overruling the precedent?

Posted by bbuhler at 08:32 PM | Comments (0)

July 25, 2005

Yes, Roe Does Hurt Democrats

Recent election history shows that the public's 70% support for Roe does not translate into Democratic electoral success; otherwise Professor Chemerinsky would be the terrifically bright, accomplished, and decent person being considered for the Supreme Court instead of John Roberts! While many moderate GOP women support Roe, as long as Roe is in place (and Roberts' confirmation is not likely to change this), they will vote other priorities, such as which candidate will best fight terrorism. Absent Roe, the "security moms" who helped put Bush over the top might well have made Kerry president instead.

Posted by msoller at 11:37 AM | Comments (2)

It's Basic: Protect Privacy

Here is my reply to those who disagreed with my earlier post. (Here and here.).

Not surprisingly, there is disagreement over the role privacy and abortion should play in the confirmation process. My position is that judicial protection of the right to privacy, including reproductive choice, is essential and that an individual who does not believe in this should not be confirmed for the Supreme Court. Indeed, Robert Bork was rightly overwhelmingly rejected by the Senate in 1987 in large part because he did not believe in constitutional protection for privacy rights, which include the right to marry, the right to procreate, the right to custody and upbringing of one's children, the right to purchase and use contraceptives, and the right to abortion.

Professor Marci Hamilton responds to my earlier comment by suggesting that states should be trusted to protect fundamental rights, such as privacy. First, the protection of basic rights should not be left to the political process. Freedom of speech, free exercise of religion, protection from unreasonable search and seizure, and the entire panoply of constitutional rights are not left to the states, even though most of the time states will do a fine job of safeguarding them.

Privacy and reproductive freedom are no different. Justice Robert Jackson explained over 60 years ago that the purpose of constitutional protection of rights "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."

Second, the reality is that ending constitutional protection for abortion will be that it will be illegal in over half the states. In these states, women, especially women without the economic means to travel to states where abortion is legal, will be forced to choose between an unwanted child and unsafe back alley abortion. For those, like me, who believe that Roe v. Wade was correct, this is an unacceptable result.

Edward Lazarus disagrees with me on different grounds: he thinks that for political reasons it is unadvisable for Democrats to focus on abortion and that such an emphasis serves Republicans' interests. To the contrary, a recent Gallup Poll showed that 68 percent of Americans believe that Roe v. Wade should not be overruled. Reproductive choice, and privacy more generally, are crucial issues for Democrats to emphasize. Indeed, these are issues that Democrats must stress in order to appeal to a crucial constituency: moderate Republican women.

Posted by msoller at 10:44 AM | Comments (7)

The Ugly Alternative

Professor Hamilton certainly raises an important question: how would states react if Roe were overturned? But I'm a lot less sanguine than she is about the answer. Sure, some states, probably a lot of states, would keep the law roughly where the Supreme Court currently places it. But plenty of states, especially in the South and Mountain West, would most likely adopt much harsher regimes than are now permissible and some would outlaw abortion entirely as well as, perhaps, crossing state lines to obtain an abortion (constitutionally problematic as this would be).

Which means that those of us who both support freedom of choice and criticize Roe have to live with the fact that Roe's overruling would, at least in the short term, deprive many women in this country of a right we firmly believe they should have.

Posted by msoller at 10:40 AM | Comments (0)

July 24, 2005

Shaky or Solid, Roe Should Stay

Four points about the Court and Roe:

1. For the very near future, the best bet is that the Court might well chip away a bit at Roe, but leave the decision intact — that is, the Court will not, in the very near future, allow states to make abortion a crime. The distinction between chipping away and overruling is very important, as all sides should agree.

2. The holding of Roe may well be vulnerable in the near future. It's now possible to foresee the issue being returned to the states, which would be an extremely big deal.

3. In principle, Roe was shaky, to say the least, when initially decided. It would have been much better for the Court to proceed narrowly and cautiously, and with more humility, in this contested domain.

4. It is responsible to say that Roe was shaky or even wrong, when initially decided, but also to say that the Court should not overrule the decision, because of the need to respect stare decisis. Whether or not this position is ultimately right, it certainly qualifies as responsible.

Posted by msoller at 09:21 PM | Comments (3)

Not So Fast, Erwin

I have more of a question than a position on this issue. Isn't the debate really over whether the federal government via the Constitution or the states are better at deciding abortion issues? Erwin's position seems to rest on the premise that the states are by their nature opposed to liberty for women, but the states have been very receptive to rights lobbyists in the civil rights and disability rights arenas. Isn't it an old canard that the states are inherently less effective enforcing civil rights than the federal government?

The real constitutional question, then, is one of state vs. federal power, not women's rights vs. religious power to determine public policy. Which is to say that the constitutional question does not map onto the rhetoric chosen by the various interests involved.

That leads to more questions — why are those behind Roe so worried about it being overturned when roughly 70% of the American people are opposed to overturning it, and therefore opposed to excessive state regulation? Do they expect the states to automatically follow the minority view on this issue? Do they expect state constitutions to give less protection to women in this arena than the federal government has? Given Justice O'Connor's interpretation of Roe v. Wade, the states already have wide latitude, so the debate at the Supreme Court is about abortion on the margins, not abortion per se.

Posted by msoller at 06:54 AM | Comments (5)

Abortion Is the Wrong Fight for Liberals

Like Professor Epstein, I am long on record saying that Roe, as originally decided, rests on a shaky foundation. Unlike Professor Epstein I believe the result, that the Constitution protects the right of women to choose whether to carry an embryo to term, may be justified on other grounds, in particular the constitutional right of women to be equal participants in society.

As to whether Roe can be further drained of meaning without being overruled, of course it can. Indeed, the hollowing out of old precedents without overruling them is something of a hallmark of the Rehnquist Court, which has a habit of carving away at civil rights and civil liberties without expressly repudiating any particular established principle.

All this said, I'm regretful that the Roberts confirmation debate is likely to focus on his views about Roe. As a jurisprudential matter, it means Democrats will be attacking Roberts on their own weakest ground. As a political matter, it only plays Republican strategy. The GOP has gained control over both elected branches of government in significant part because anti-Roe sentiment has galvanized the right wing of the party. Why do progressives invite more of the same?

Moreover, so much more is at stake in the Supreme Court and in this country than this issue. What kind of world are we leaving to our kids — what legacy of debt and pollution and fundamentalism and fear of freedom? The Court will have a large say in these matters and we should start debating them with Mr. Roberts now.

Posted by msoller at 06:45 AM | Comments (0)

Roe's Wisdom

I completely disagree with Richard. Roe v. Wade was a correct, and indeed essential, protection of the fundamental right of women to reproductive choice. The appointment of John Roberts, based on all that is known about him, would put on the Court another Justice likely to overrule Roe. But even if Roe is not overruled, the Court can undermine the right by allowing much greater government regulation that interferes with the ability of women to get safe, legal abortions.

In defending Roe, and responding to critics such as Richard Epstein, there are three points. First, the Court long has protected, and should protect, a right to privacy even though it is not expressly mentioned in the Constitution. Based on this, the Court has safeguarded the right to marry, the right to procreate, the right to custody of one's children, the right to keep the family together, the right to control the upbringing of one's children, the right to purchase and use contraceptives, the right to refuse medical care, and the right to engage in private consensual homosexual activity.

Second, laws that prohibit abortion interfere with women's privacy. Justice Blackmun got it exactly right in his opinion for the Court in Roe: a prohibition of abortion forces women to choose between an unwanted child and an unsafe, back alley abortion. It is a profound government intrusion on a woman's ability to control her reproduction and her body.

Third, the choice of whether the fetus is a human person should be left to the individual to resolve. The question is who should decide whether an embryo after conception or a fetus is a person? The question of when human personhood begins never will be resolved scientifically or morally. The central wisdom of Roe, is that this is a question that should be for the woman and not the state to decide.

If the Court overrules Roe, about half the states have laws already on the books that would eliminate abortions. But even if the Court does not overrule Roe, it can undermine women's right to choose by allowing ever more state regulation of abortion and by failing to allow adequate protection for facilities that perform abortions. States can devise infinite restrictions on abortion, ranging from waiting periods to notice and consent requirements to prohibiting medical procedures to so many more. The greater these restrictions, the harder it will be for women to obtain safe, legal abortions. The right to choose will be eroded and ultimately perhaps ended.

Posted by msoller at 06:30 AM | Comments (2)

July 23, 2005

Trimming Roe

First, for the record, let me say that I wrote a piece attacking Roe in the Supreme Court Review when it first came out in 1973. I still think that the decision is wrong in principle, even from a libertarian prospective.

No doubt that terminating pregnancy is a presumptive freedom for the mother. But even the narrowest view of the Millian harm principle says that the life of the fetus has to count as an offset. The only battle is when that begins, and the only point that has a hard-edged principle quality is conception.

The legislature might soften this rule for all sorts of practical and good reasons, but it is hard to see a fundamental right that trumps these practical considerations. The case here is not like gay marriage; nor is it like the right to use contraceptives. Nor is it like Lochner which raises very different police power issues.

It is this soft intellectual underbelly that makes the current defense of Roe so difficult. The best line of argument is that it was rightly decided in the first instance, but that is subject to the objection raised above. The second best line is that it is so settled in the fabric of American law that it should not be overturned, which is a tough claim because the absence of a clear reliance interest.

It is here where the question gets tense. Narrowing precedents happens all the time, both for good and bad reasons. Roe is subject to that process just like any other decision. The trimester question can be revisited; some colorable justification — protecting the life of the mother, rape, birth defects — could be required.

I have not the slightest idea what John Roberts thinks of these question, nor is it fair to put this all to the test. For these purposes, two points seem clearly. Ideally this debate should await his confirmation. But if it does not, the defenders of Roe have to recognize that they are also at risk.

Posted by msoller at 11:54 PM | Comments (2)

Interest Groups, Get Ready to Be Frustrated

Actually, it's the reverse. Further restrictions enacted by the people in their several states would actually vindicate the structure of the abortion right as it has been articulated by the retiring Justice O'Connor and the Court.

Unless one views Roe as establishing abortion on demand, something which the most ardent defenders of abortion deny, and which the public has thus far never supported, Roe, and subsequent case opinion like Planned Parenthood v. Casey, contains a reminder that "the Constitution does not forbid a state ... from expressing a preference for normal childbirth."

Because this is an invitation to legislate responsibly, taking up that invitation is not an overruling of precedent, but a fulfillment of it. Moreover, since John Roberts has an established record as a lawyer and jurist of carefully avoiding the extremes of either under- or over-reading precedent, abortion should not dominate the confirmation inquiry.

This may be frustrating to a handful of interest groups, but it is of great service to the Senate and the American people who would like some assurance that the person being appointed to the Court will not usurp their freedom to make policy decisions. California, after all, could, as John Roberts reads the Constitution, deregulate abortion in its entirety. That would be an unlikely (and to millions of Californians a tragic) choice given the genetically irrefutable fact that life begins at conception and deeply held moral objections, but it is just as much a constitutionally permissible option as limiting the practice.

Posted by msoller at 11:47 PM | Comments (1)

Don't Celebrate or Hate. Investigate.

It's a bit of a puzzle, to me, why at this early stage, so many people are acting as if the only important question is whether Judge Roberts will be confirmed — and also as if it's important to have a brisk, purely celebratory confirmation process (with an emphasis on a sentimentalized narrative of Judge Roberts' personal life). We haven't had a Supreme Court nominee in a long time, and this one is likely to change the Court in significant ways.

In my view, no one should be attacking Judge Roberts, but the nomination is a good occasion for discussion and debate about an institution that sometimes seems obscure to the American people. The confirmation process, if done right, would serve valuable educational functions for the country. It would also give the Senate, and the people, some sense of the different varieties of conservative thought, and of the kind of conservative that Judge Roberts is. The President is right to call for a dignified process, and a dignified process is serious and substantive, not rushed and slogan-filled.

Posted by msoller at 11:33 PM | Comments (0)

Last Week in LiveCurrent

The question before the LiveCurrent Court for the week of 7/17-7/23 is: Given the increasing power of special-interest groups, is there a better way to nominate Supreme Court justices?

Posted by msoller at 12:41 PM | Comments (0)

July 22, 2005

"Blink," Don't Think

One of the central themes of Malcolm Gladwell’s “Blink” is that too often we suffer from too much information. Whether we proceed by intuition, or complex protocol, often the best approach is to look at a few salient features and then make up our minds. This view should lead us to rethink the exhaustive disclosure requirements that mar the law of medical malpractice, product liability and securities regulation.

It should also lead us to rethink the endurance contest for nominees to the high court that passes under the name deliberative democracy. Truth is that most people will make up their minds whether they like a candidate or not on the strength of a resume, a reputation, and quick first impression. The rest is largely posturing in an effort to bolster the record one way or another.

Judge Roberts does not need any buildup to pass the blink test. He has a stellar record, a sterling reputation, and an excellent demeanor. So the only purpose of further hearings has to be negative. Those who dislike him because he is too conservative, hope that they can find something that will make an easy case into a hard one. All this is difficult because it cannot be right to say that he is disqualified because he is too conservative. The first democratic nominee will be out because he or she is too liberal.

So let us hope that this nomination will move to the back pages. I would have more confidence that the process should include a vigorous cross examination if there were any chance that any senator would change his or her view in response to any answer that he might supply. It is not going to happen. We shall decide better if we deliberate less.

Posted by bbuhler at 02:02 PM | Comments (0)

July 21, 2005

The Right, Honorable Judge

Judge Roberts has a first-rate mind and by all accounts he’s a wonderful person. In addition, his opinions to date are excellent and they show a healthy respect for people who disagree with him. It’s far too soon to reach any final conclusions — the process has just started — but Judge Roberts combines quality with a fine character, and that’s certainly something to applaud.

Posted by bbuhler at 09:37 AM | Comments (0)

July 20, 2005

What Are Roberts' Rules?

Judge Roberts is the literal black box when it comes to his personal views. There are numerous cases where he has represented strong business interests and taken strongly conservative views for the Reagan and Bush Administrations. Unless someone unearths a speech or individual that can reveal his personal predilections, we can be certain about only one thing at this point — he is well-experienced at the Supreme Court and widely respected.

Posted by msoller at 08:29 AM | Comments (0)

Prove He's Not Another Scalia, Don't Just Say It

John Roberts is being presented as something of a stealth candidate because there is seemingly so little of a paper trail concerning his views on key issues that are likely to be decided by the Supreme Court. Quite the contrary, every available indication of his record is enormously troubling for those who care about issues such as civil liberties and civil rights. Indeed, I challenge his supporters to show anything in his record to indicate that he will not be a far-right Justice in the mold of Antonin Scalia or Clarence Thomas.

For example, on the abortion issue, as an attorney at the United States Department of Justice, Roberts signed or wrote several briefs, and argued key cases, urging restriction of abortion rights. There is nothing to indicate that these are not his views on abortion or to suggest that he will not be a vote to limit reproductive choice. Imagine in the 1950s a nominee who had consistently written briefs urging the overruling or limiting of Brown v. Board of Education. The nominee should have been rejected by the Senate unless he or she could show that the written record was not an accurate reflection of the person's views. That is exactly how the Senate should treat John Roberts.

Thus, it is essential that Roberts explain his personal views on key issues, ranging from how the Constitution should be interpreted to specific matters such as abortion rights, affirmative action, and separation of church and state. Without answers to these questions, Senate Democrats should refuse to confirm him, including through a filibuster.

Roberts has the potential to change the law in key areas such as reproductive freedom, separation of church and state, and affirmative action where Justice O'Connor had been the fifth vote for the majority. Senate Democrats must insist that they will filibuster Roberts unless they are convinced that he is not as far to the right as everything in his record suggests.

Posted by msoller at 08:26 AM | Comments (10)

Roberts Will Be Confirmed

John Roberts is an inspired choice, and should be easily confirmed. Roberts is a mainstream conservative who is widely admired by many liberals for his intellect, integrity, and sheer brilliance. Interest groups will make noise because they have to, but at this point everyone expects Roberts will be confirmed by a wide margin.

Posted by msoller at 08:20 AM | Comments (1)

July 19, 2005

Whew!

We all owe the president a vote of thanks on this one.

I have no inside information or special insight on John Roberts. I have never met the man, and cannot recall having read a single one of his opinions. But I have heard his name mentioned on repeated occasions, and always with the highest respect.

There is in a sense no higher recommendation for any potential nominee to the Supreme Court than to be held in great esteem by his professional colleagues. To me that is enough to support the nomination, without the detailed examination of his views and opinions on the various issues that come before the Court.

My sense is that all Republicans will rally around Roberts as a consensus nominee, and that most Democrats, when they reflect on the issue, will be prepared to support a nominee who, obviously, is not their first choice. I have already heard rumblings from Senator Schumer and abortion rights advocate Nan Aron that a close look is required to pin down his views on various issues. Sorry: at this point his correct response is a polite demurrer to any effort to get him off the fence on the weighty issues that come before the Court.

Senator Schumer may think that there is some burden of proof on the nominee to prove himself fit to occupy the seat, but he will, and should, have a hard time persuading anyone else apart from diehard opponents from going along with that rhetorical posture. We already know too much about Roberts' overall legal ability to start these proceedings from ground zero. This should be a quick and easy hearing, not a senatorial inquisition.

Posted by msoller at 08:19 PM | Comments (4)

He's a Star, not a Revolutionary

President Bush has chosen as close as possible to a consensus pick who also falls within the range of legal thinking within the Republican party. Simply put, John Roberts is a star of the Washington legal establishment, Republican and Democrat.

He is a judge on the second most important federal court, the D.C. Circuit; he served as Deputy Solicitor General under George H.W. Bush, and as an associate White House counsel under President Reagan. He clerked for then-Justice Rehnquist and for Henry Friendly, a well-known liberal circuit judge.

As a member of the D.C. establishment, Roberts is not a revolutionary; he may want to engage in course corrections, but he won’t be steering the Court to a totally different port. Bush did not pick someone more akin to a Justice Scalia or a Justice Breyer, who has a grand unified theory of constitutional law that drives their decisions. If Democrats in the Senate believe that Roberts is too ideologically extreme, then they would have to disqualify from the Court many of the current members of the Supreme Court right now, and almost every circuit judge appointed by a Republican President.

Posted by msoller at 06:40 PM | Comments (0)

Tampering Would Court Disaster

I very much disagree with those such as Richard Davis and Edward Lazarus who propose major changes in the selection process, such as having a national election for a Supreme Court Justice or limiting a Justice to an 18-year term. I think the adage, "if it isn't broke, don't fix it," applies well here. The system for choosing Supreme Court Justices has worked remarkably well for over 200 years.

Of course, as Davis argues, Supreme Court justices make value choices in interpreting the Constitution. That always has been true and always will be true. Interpreting broad phrases like "due process of law" or "equal protection of the laws" or "cruel and unusual punishment," or determining what is a "compelling government interest" inevitably will turn on the values of the justice. For that matter, even Marbury v. Madison involved a value choice since judicial review is nowhere mentioned in the Constitution. Many states have elected judges and an examination of these systems shows that election is an inferior way for choosing judges compared to the process created in the Constitution. Election puts a premium on popularity and electability, not the values that should be most important for an institution that is supposed to be non-majoritarian.

Likewise, the Lazarus proposal, based on one developed by law professors Roger Cramton and Paul Carrington, is aimed at solving a non-existent problem. It is unclear what would be gained by limiting justices to 18-year terms. Throughout American history, countless justices have served longer than this. The loss of the wisdom and experience of these justices, ranging ideologically from William Brennan to William Rehnquist, would have been substantial.

No system for selecting judges is perfect, but those who would change a system that overall has worked for over 200 years have a very heavy burden to meet. I don't believe they have done so.

Posted by bbuhler at 09:49 AM | Comments (1)

Mutual Assured Spending

No one can doubt that special interest groups are more common today than a generation ago. These groups expend an enormous amount of energy on the particular issues that go to the heart of their mission. Often, the most efficient way for them to operate is to influence the legislative or administrative process on the points that they care about, and not get themselves into elective or appointive politics.

Yet, so long as each Supreme Court nominee represents 20 percent of a winning coalition, those interest groups whose issues come frequently before the Supreme Court will think it worth their while to divert some of their resources to influencing the selection of the a new justice. And as a matter of rational calculation, they are correct.

The bad news, however, is that there is little that anyone could do to reduce their level of expenditures. In an earlier posting, I endorsed an approach that kept the Senate Judiciary Committee from examining the nominee — a position that has a snowball’s change in hell of being adopted in today’s overheated climate. But suppose, by some miracle, it were adopted, that massive sea change might reduce expenditures by some small amount. But it is far more likely that it would lead the key interest groups to redirect their expenditures elsewhere, perhaps to influence the shape of public opinion or to privately lobby individual senators. Lesser changes would have correspondingly less effect.

The moral of the story is clear. All it takes today to have a Kulturkampf is a Supreme Court vacancy. The stakes are too high to permit any other result. No interest group is prepared to be the first to disarm.

Posted by msoller at 08:15 AM | Comments (0)

Who's Bulldozing Whom?

It would be ideal for all concerned with this nomination to realize that we are not appointing a moral oracle who will definitively and for all time resolve the ultimate questions of human existence, but a modestly compensated jurist whose task is to resolve narrowly phrased questions of statutory and constitutional law.

Of course, you can't blame interest groups for being confused over the scope of the Court's responsibility when some Justices wander well beyond the law as written, substituting personal judgment for judicial judgment. When the bulldozer of eminent domain is about to raze your family home in order to favor a private owner who promises to build something fancier there, who do you want behind the judicial desk to hear your constitutional objection — Justices O'Connor, Rehnquist, Scalia, and Thomas, who read "public use" as actually requiring one or a devotee of the "living constitution" like Justice Stevens who personally thinks, and then declares to be law, any broad public purpose selected by the local condemnation authority that would flatten your home to build a private office building?

President Bush has generously consulted Democratic and Republican Senators, but the Constitution says the nomination is neither their choice — nor the special interest groups behind them — to make.

Posted by msoller at 08:13 AM | Comments (0)

July 18, 2005

The Process Is Political. Let's Make It Official

Despite what the Constitution says, the selection of a Supreme Court justice now revolves around public opinion. The public's opinion is represented by self-serving interest groups claiming public will. Perhaps the public should be allowed to play a direct role in the Supreme Court nomination process.

One possible reform would commence with a presidential nomination of two or three candidates followed by a Senate investigation and advisory vote. Then, a non-partisan election could occur allowing the public to make the final choice.

Another option could continue the tradition of a single nominee, but would add a national referendum following a Senate confirmation vote. Or perhaps a national vote could occur only when the nominee fails to get 60 votes in the Senate.

In that case, if a president wishes to avoid a public vote, he could opt for a consensus choice. Such a trigger might discourage an unpopular president from trying to satisfy a vocal constituency within the party with a partisan nomination. Similarly, a minority of senators may fear being overturned by a public vote and therefore be less inclined to block a nomination. Either way, the possibility of partisan gridlock is diminished because the public becomes an arbiter, particularly in cases where the two parties are bitterly divided over a nominee.

Posted by msoller at 11:48 AM | Comments (2)

Everybody in the Pool

One striking, if disturbing, feature about the preliminary debates over the next Supreme Court nominee is the implicit assumption that this person is likely to be drawn from the ranks of the present federal courts of appeals. That practice has surely become commonplace of late. And where the nominee is not a federal appellate judge, she is, or as in the case of Sandra Day O’Connor, was a state court judge. This narrowing of the pool tends to exclude all sorts of other individuals who come from the Senate, from administrative agencies or from political life. Just think of Earl Warren, William O. Douglas, Harlan Fiske Stone, and Robert Jackson — our vision has become blinkered and narrowed with time.

This shift in record is not surprising as everyone now thinks that there is a strong imperative to have a direct read on the intellectual inclinations and constitutional bent of potential nominees. It is harder to extrapolate from non-judicial work to predicted votes on the Supreme Court. But the effort to pigeonhole candidates comes at a cost. An effective court draws from individuals in all walks of life, so that the Court has some grasp not only of the fine points of doctrine, but of how law operates more closely to the ground on the many institutions that it effects.

It is therefore troublesome that no one on the court has real experience with the criminal justice system, or even with the many business and regulatory issues before the court. And, remember, I am not talking here about promoting my own academic profession. We get on by indirection, as the cases of Breyer, Ginsburg, and my former colleague Scalia show.

None of this is meant to derogate from the able judges now in contention. But we need a broader search than has taken place with recent nominees.

Posted by msoller at 11:15 AM | Comments (0)

July 17, 2005

Power Brings Pressure

It should not be surprising that special-interest groups on the political left and right have chosen to participate in the Supreme Court confirmation process. Over the last half-century, the Supreme Court has taken control over many of the nation’s most controversial moral and policy questions, ranging from abortion to affirmative action to religion in public life. This has weakened the role of the states and of Congress to set national policy. The only way for citizens to to alter policy on these questions is to change the justices on the Supreme Court. Interest groups are only reacting naturally to the judiciary’s expansion of its authority in national policymaking.

Nevertheless, it is the president who makes the decisive choice when it comes to the court. In the last century, the Senate has confirmed 89 percent of the president's nominees to the Supreme Court. Twelve of the last 14 nominees have taken their seats on the court. So interest group pressure may have increased as the Supreme Court’s power has increased, but it is arguable that it has yet to make a serious difference in outcomes.

No doubt there are many “good government” solutions for this perceived problem, such as blue ribbon commissions, new forms of government agencies and nominating bodies, or even judicial elections and term limits. We ought to look to the experience of the states, many of which have such innovations (California, for example, has a government commission that reviews judicial nominations), before adopting them.

Critics have questioned the performance of state judiciaries (for example, the wide variation in tort punitive damages), and I wonder whether these changes to the original constitutional system have introduced even more problems than they have solved.

Posted by msoller at 10:11 PM | Comments (0)

Why Interest Groups Don't Add Up

To some extent, I question the premise of the question. The interest groups at play with regard to this next appointment tend to neutralize each other. For example, business interests do not share litmus tests with evangelical Christians. They have very different policy goals. For that reason, I would not assume that any one or collection of interests will be able to demand a particular candidate. Having said that, it would be a good thing if we were able to establish a bipartisan committee that could fill the void left by the American Bar Association. Had the ABA remained neutral, it might still have a powerful voice on these issues, but its decided leftward tilt forecloses such a neutral role now or in the future.

Posted by msoller at 04:16 PM | Comments (0)

Wanted: Judicial Turnover

It doesn't take a genius to see serious problems with the process for nominating and confirming Supreme Court justices, which has become an intense forum for playing out the civil war in our legal and political culture. The problem is coming up with solutions. My favorite idea, though by no means perfect, is to reform the confirmation process indirectly by replacing life tenure for each of the nine Supreme Court justices with a single, non-renewable 18-year term, with the starting dates for the terms of the justices staggered two years apart.

Under the current system, every Supreme Court vacancy occasions a political dogfight because the stakes are so terrifically high. Moving to a system that would regularize and increase turnover at the Court would drain each individual nomination and confirmation of some of its import — and thus perhaps reduce the level of contention that now accompanies every retirement. It would also stop the guessing game of which justice is going to retire or die under which presidential administration. Every president would get two picks per term — and we could go to the polls every fourth November with those stakes in mind.

Posted by msoller at 03:58 PM | Comments (3)

The Bipartisan Fix

I do think there's a better way. We should increase quality, and decrease partisanship in the bad sense, by enlisting the aid of some kind of bipartisan group — either one that is already out there, or one that presidents create, with the advice of the Senate, on an "as needed" basis.

Suppose, for example, that President Bush created an informal advisory group, whose job would be to compile a list of five or ten finalists. The group could work with the President and the Senate. One of its primary goals would be to eliminate people for reasons of bad character or insufficient competence. Another would be to filter out people whose views were taken, to a bipartisan group, to raise serious doubts about their appointment to the nation's highest Court. The President could certainly suggest people in whom he was particularly interested. He would not be bound by the final list, of course, but if he chose someone from that list, everyone would know that the person in question had gone through a serious screening process.

The advantage of an approach of this kind would be twofold. First, it would simplify the confirmation process and check interest-group maneuvering. Second, it would impose a check on the President. I do not mean to endorse this particular idea, though it seems to me to have some promise. The practice of other countries is certainly worth a serious look. The question is how to reduce the problems in a situation that combines distrust on all sides with unhealthy litmus tests and partisan pressures on the President and the Senate alike.

Posted by msoller at 10:01 AM | Comments (1)

The Founding Fathers Knew Best

Actually, no, the way outlined by the framers is just fine so long as the President and Senate are willing to observe their respective roles.

According to the Supreme Court, itself, the President was given the sole authority to nominate because "the framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism than would a collective body." And the role for the Senate? To provide security; a check against patronage or favoritism; to prevent appointment of a nominee without "due qualifications for office."

The Senate was not given a formal role in the selection of the nominee because the founders hoped considerations of merit would predominate. Collective bodies are more inclined toward political horse-trading. As Edmund Randolph observed, "appointments by the Legislatures have generally resulted from cabal [an 18th century word for special interest] ... or some other consideration than a title derived from the proper qualifications." Special interest groups — right or left — have no constitutionally prescribed role, other than conscientious citizen, and these groups can merit that high title by commenting with civility, rather than through polemical paid advertisements or sound bites.

Posted by msoller at 10:00 AM | Comments (0)

Last Week

Last week the LiveCurrent Court wrestled with this puzzler: Is it
appropriate to ask a Supreme Court nominees his/her views on specific
issues that are likely to come before the court?

Read on to see what top legal thinkers had to say.

Posted by msoller at 06:00 AM | Comments (1)

July 13, 2005

Judges Who Pass a Litmus Test Fail the Smell Test

There are two answers to the question. The constitutional answer is that there is no constitutional impediment to asking a Court nominee about his or her views on a particular issue. Senators have an obligation to "advise and consent," which includes a need to ascertain that this candidate will be fair-minded and objective with respect to certain cases.

The political answer is that the nominee must be careful in answering such questions. If the nominee seeks to match a litmus test set forth in the political sphere, that candidate in my view is unfit for the post. Any Supreme Court nominee that makes decisions according to a roster of issues prescribed by interest groups will not be an exemplar of the independent judiciary. The Court gets thousands of issues every year, and while it only decides approximately 80, the quality of independent good judgment is a necessity on issues ranging from ERISA (the Employee Retirement Income Security Act) to bankruptcy to the First Amendment.

I think it is a worthwhile task for those investigating nominees to see whether the nominee's position(s) changed to match a litmus test following their identification as a potential nominee. Any federal judge (or private citizen) whose views were altered to fit a litmus test to get to the Court does not have the integrity and mental fortitude to be a great justice.

Posted by bbuhler at 10:36 AM | Comments (0)

Better to Find Out Now What They Think Than Later

The second possibility is that while the views matter, it is better to not know them. But knowledge is always better than ignorance. If a person has views, keeping them secret does not make the person more impartial. This was precisely the point that Justice Scalia made in his opinion for the Court in Republican Party of Minnesota v. White (2002), declaring unconstitutional a law that prohibited candidates for elected judicial office from stating their views on disputed legal or political issues. The Court rejected, correctly I believe, the argument that learning a judicial candidate’s views on specific issues undermines impartiality.

A nominee’s views matter and the Senate should know them in deciding whether to confirm.

The second possibility is that while the views matter, it is better to not know them. But knowledge is always better than ignorance. If a person has views, keeping them secret does not make the person more impartial. This was precisely the point that Justice Scalia made in his opinion for the Court in Republican Party of Minnesota v. White (2002), declaring unconstitutional a law that prohibited candidates for elected judicial office from stating their views on disputed legal or political issues. The Court rejected, correctly I believe, the argument that learning a judicial candidate’s views on specific issues undermines impartiality.

A nominee’s views matter and the Senate should know them in deciding whether to confirm.

Posted by bbuhler at 10:24 AM | Comments (3)

July 12, 2005

What's the Legal Question?

That's a political question, not a legal one.

It is generally accepted that it's okay for nominees to decline to answer how they will rule in specific cases. This means that senators can ask, but they should (and will) know that they won't get an answer.

Posted by bbuhler at 06:30 PM | Comments (0)

July 11, 2005

Got Views? Let's Hear 'Em

It is entirely appropriate to ask nominees their views on particular issues. There is no doubt that a person's views and ideology affect how he or she votes in particular cases. President Bush, like every president, will consider views and ideology in deciding who to nominate. Likewise, the Senate can consider ideology in deciding whether to confirm. Throughout American history, from John Rutledge during the presidency of George Washington to Robert Bork, nominees have been rejected by the Senate because of their views on key issues.

It makes no sense to pretend that a nominee doesn't have views or that those views don't matter in deciding cases. Therefore, the Senate needs to know the views. A nominee should not be required to say how he or she would vote in a specific case or on a particular law. That, of course, may depend on the context of the case and the arguments presented. But nominees should answer questions about their views concerning how the Constitution should be interpreted, both generally and in specific areas. For example, is the meaning of the Constitution fixed and unchanging at its adoption or is the Constitution a "living" document? Should the Court protect "unenumerated" rights, such as privacy? Should there be a wall that separates church and state and a limit on government support for or endorsement of religion?

Three years ago, Justice Antonin Scalia, writing for the Court, said that a candidate for elected state judgeships does not lose impartiality by stating his or her views on disputed legal issues. If a person has views, it serves no one's interests to pretend otherwise. The same is true for nominees for the nation's highest and most important bench.

Posted by msoller at 04:35 PM | Comments (3)

Don’t Subject Nominees to Trial by Senate

What should be asked of Supreme Court nominees about their views is a question that is on everyone’s lips today. The dominant view of the confirmation process is that no issue large or small is off limits.

From here the argument runs, that if the Senate is free to consider a range of various issues, then it is surely free to question the potential nominee about his or her views on the question. It is as though we follow the rule of civil litigation. Anything that leads to admissible evidence at trial is fair game for discovery, either through written interrogatories or verbal questions.

My own sense is that the current procedures have gone badly astray, and create endless opportunities for grandstanding on all sides. Any person of real distinction has written many articles, briefs, or opinions, all of which could be analyzed for their soundness. The process of second-guessing is an open invitation to bitter confrontations that do much to inflame and little to inform.

How do we get out of this impasse? One possibility is to go back to the older procedures in which the nominee did not make any appearance before the Senate committee. Its members could invite persons pro and con to speak about the candidate and the record, and then add in their own judgments on the point. A week of this back and forth could be followed by a vote. I have no reason to think that the procedure will yield worse outcomes than the current endurance contest that stands in the path of any nominee. And it would have at least two advantages. It would avoid asking candidates to prejudge issues that they might decide, and it would remove one major reason for sensible people never to allow their names to go into nomination.

Posted by bbuhler at 03:45 PM | Comments (0)

Senate Can Ask, But the President Decides

There is no constitutional reason to prohibit senators or presidents from asking questions of a Supreme Court nominee. Presidents and senators take an oath to uphold the Constitution, which ought to include a duty not to nominate or confirm any nominees whom they believe would not properly interpret the Constitution. In order to make that judgment, they should ask questions that can inform them about a nominee’s views of constitutional interpretation. On the other hand, judges must maintain their impartiality in deciding future cases; this means that they ought to resist answering questions that would commit them to reaching specific outcomes in the future.

It is important to remember that the framers vested the power over nominations in the president to promote responsibility and accountability in appointments, with the Senate playing a secondary role. As Alexander Hamilton wrote in The Federalist No. 76, "the sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation." For this reason, the president will "feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality" the best candidates.

Early drafts of the Constitution had given the Senate the sole power to pick judges. But, as Hamilton explained, the framers transferred the nomination power to the president because they feared that an "assembly of men" would be prone to "private and party liking and dislikes, and partialities and antipathies, attachments and animosities." The Senate’s role is to check the president, but not to exercise the actual authority to pick an individual nominee. As Hamilton wrote, the Senate "cannot themselves choose — they can only ratify or reject the choice of the President."

Posted by bbuhler at 10:37 AM | Comments (2)

July 10, 2005

Ask About the Judicial Record, Not the Rental Record

Senators have a duty to develop their own deeply considered views about important constitutional questions and the role of judges (especially Supreme Court justices) in resolving them. Just as a president may select a nominee based on his or her approach to constitutional interpretation, so too, in carrying out their constitutionally-mandated “advise and consent” function, senators have a right, if not an obligation, to scrutinize closely the jurisprudential views of any nominee and to vote for or against the nominee based on his or her substantive views of the Constitution and its interpretation.

While no nominee should be expected to pre-judge potential future cases (i.e., does the Constitution protect the right of gays to marry?), in this closely and sharply divided nation in which the federal courts play such a crucial role, the Senate owes it to the public to discover a nominee’s current views on and interpretive approach to key issues and decisions. Indeed, far better that the Senate focus on such substantive matters than to engage in some of the far-afield frolicks that have accompanied other hearings, including trying to figure out the video-renting habits of some past selections.

Posted by msoller at 10:45 AM | Comments (9)

Litmus Tests Are an Undue Process

No, asking for specific views on cases on the docket or likely to come before the court is not appropriate. That it is ethically improper and threatens judicial independence may be implicit from the fact that the Senate did not conduct hearings on nominees until 1925 and its troubling nature is explicit in a question on the Senate’s own nominee questionnaire &mdash “Has anyone involved in the process of selecting you as a judicial nominee discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as asking or seeking a commitment as to how you would rule on such case, issue or question? If so, please explain fully.”

Justice Ruth Bader Ginsburg put it well when she observed about pre-confirmation questions that “[w]hen a [nominee] promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave and manifest.”

Does this mean the Senate may not inquire into judicial philosophy or approach? Of course not. But there the basic inquiry is: does the nominee understand the proper role for an unelected federal judge in a constitutional system of self-government? If the answer given is to interpret the law and Constitution as written, the nominee is off to a good start, and senators may certainly explore more fully what that means in terms of a nominee’s understanding of the separation of powers, federalism, as well as the historical meaning of the textual bill of rights. Asking about specific cases wrongly assumes that judging is about imposing political outcomes, rather than discerning outcomes already chosen by the people in statute or constitutional text.

Posted by msoller at 09:30 AM | Comments (3)

A Nominee's Silence Is Supreme, Except When It's Not

The basic answer is no. The less basic answer is a little complicated.

In confirmation hearings, senators are entitled to ask whatever questions they want. They’re certainly entitled to ask questions about a judge’s general approach to constitutional issues. They might ask which judges a particular nominee most admires; they might also ask which Supreme Court decisions, in the past, seem best, and which seem worst. Answers to questions of this kind can be informative and helpful.

It also isn’t inappropriate to ask more specific questions. While it’s unusual, a senator is entitled to ask about a nominee’s general view about the right of privacy, or about the central meaning of the equal protection guarantee, or about whether the meaning of the Constitution evolves over time, or about whether it’s appropriate for the Supreme Court to consult foreign precedents. All these questions are entirely fair game.

On the other hand, a nominee is also entitled not to answer questions when the answer might be taken to prejudge particular issues that will come before the Court. Suppose that a senator asks: Would you vote to overrule Roe v. Wade? Or: Would you vote to strike down affirmative action at medical schools? Or: Do you think the president has the power to start a war without congressional authorization? The problem is that nominees should be permitted to keep an open mind, so that they can assess cases fairly. Answers to questions of this kind might reasonably be thought to be a kind of promise — one that is inconsistent with keeping an open mind.

Hence senators should be careful about asking questions that would commit a nominee to a particular vote in a particular case, and nominees are perfectly entitled to decline to answer any questions that raise concerns on that count.

But there’s a kicker: Whenever a nominee declines to answer, senators are entitled to take their silence into account. A nominee who is evasive on general questions can be challenged for that reason. And if a nominee offers real warning signs, silence on more particular questions can be challenged as well. In criminal cases, you are permitted to be silent in order to avoid self-incrimination. The same principle does not hold for nominees to the Supreme Court of the United States.

Posted by msoller at 08:26 AM | Comments (2)

Don't Make Judges Afraid to Change Their Minds

Tough question — good arguments on both sides. Right now, let me just air one.

Judges are obligated to think carefully about the parties’ arguments in every case, and be open to changing any preconceived views they may have. Naturally, they’ll often adhere to their earlier views — but sometimes they do reconsider. (For some examples of how justices’ views have changed from one decision to another, see here; but they may also change their minds from their pre-confirmation views, when they first face a concrete case that requires them to seriously focus on the matter.)

Occasionally, a justice’s vote will deeply disappoint those who wanted to see him on the Supreme Court. It might even differ from views he stated in pre-appointment opinions or articles. But observers will generally just assume he changed his mind, though they might bemoan the change.

But imagine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision. “Perjury!” partisans on the relevant side will likely cry: They’ll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers’ expectations.

Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge’s duty to sincerely consider the parties’ arguments.

Of course, there’d be little pressure of this sort in a political system in which people assume their adversaries are basically honest, disagreements represent honest differences, and changed positions represent honest changes of mind. When you find such a political system, please let me know.

Posted by msoller at 08:19 AM | Comments (1)