Category: courts

The President announced this morning that he would nominate Judge Roberts for Chief Justice, with confirmation hearings to begin after Chief Justice Rehnquist's funeral. This seems like the obvious choice--there is no coherent opposition to his nomination to the Court so far and this move spares the President a third confirmation hearing. Having newly secured Justice O'Connor's willingness to stay on until a second nominee is confirmed, I don't think much about Roberts' confirmation hearings will be controversial.

Perhaps that is not so with the second nominee, yet to be named. Pressure will intensify to nominate a woman, now that this vacancy is more specifically associated with O'Connor. I think attention will turn to Edith Hollan Jones, Edith Brown Clement, and Priscilla Owen.

With the new position associated with O'Connor, and the now more evident association of Roberts with his mentor, the very conservative Rehnquist, there may be some abatement in the pressure for the President to appoint someone who appeals specifically to the right-wing of his party.

This narrows the field quite quickly to Clement. She's been confirmed for two prior positions by the Senate, each time 99-0. She's known for being conservative, but the issue of abortion--the real lightning rod in confirmations--does not seem to appear among her most controversial opinions. And, not to be overlooked, she has a strong connection to Louisiana, first at Tulane Law School, but more importantly, in her two Senate-confirmed Judgeships.

I would be very surprised if someone else were nominated.

Via a dissenting opinion at Powerline, I am directed to a post by Andrew C. McCarthy of the Foundation for the Defense of Democracies that gets the issue of why asking a Supreme Court nominee about important precedents is an appropriate line of questioning. Read the whole thing. Here's the best excerpt, using Roe v. Wade as the example:

If you think Roe is good law, if you think it was well reasoned, if you think it reached the correct result, then you are basically saying that you think it is proper for a handful of lawyers, bereft of compelling precedent, and without competence in dynamic and relevant disciplines like medical technology (while unable institutionally to become competent by holding hearings like Congress does), to impose their policy preferences on the American people, and thus insulate those policy preferences from the democratic process.

Unfortunately, opportunity for reasoned debate on Roe has been overwhelmed by the disingenuous rights-rhetoric of the Left, abetted by the Right’s self-defeating complicity. In the current clime, saying “I think Roe was incorrectly decided,” reduces the declarant to a caricature Cro-Magnon who would have “women forced into back-alley abortions,” as Senator Ted Kennedy (D., Mass.) slanderously said of Judge Robert Bork nearly two decades ago.

In fact, all the statement really means is that the decision whether and under what circumstances to permit abortion — like every other issue the Constitution does not speak to directly — should be in the capable hands of Americans and the politicians accountable to them, rather than the judiciary. It is baffling that, in an age of judicial excess, conservatives continue to slog away in the abortion box rather than offering a different, resonant way for people who care about self-determination to think about Roe.

I don’t much care what Judge Roberts thinks about abortion. If Roe were reversed tomorrow, there would still be plenty of abortion. But it would be regulated by the people, not the judges. I would need to care about what Judge Roberts thinks of abortion about as much as I currently need to care what Justice Ginsburg or Justice Scalia thinks the drinking age in Connecticut should be — which is to say, not at all, because it’s frankly none of their business. That’s not what we hired them for.

A while ago, I poked fun at some influential Democrats for (to make a long story short) admonishing elected Democrats not to put their principles up against their opponents' and subject Social Security reform to vigorous debate. The same principle applies here to the Republicans. Insist that Roberts answer well posed questions about important precedents--and then defend his answers to the American people against the baseless charges of ideologues.

If you believe in democracy, if you passionately believe in self-government under our Constitution, then that's how you conduct yourself as a Senator, regardless of how other Senators or nominees may have conducted themselves in the past. You win the argument, with the salutary benefit of having something to campaign on in the next election.

Besides, exactly what element of Judge Roberts' resume would lead anyone to believe that he cannot excel in a confirmation hearing?

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Professor Vikram David Amar has an editorial in yesterday's New York Times, "Casing John Roberts," that provides some interesting ideas about how the Senate should approach the confirmation process for Judge John Roberts. The first part sounds familiar (second paragraph here) and makes a lot of sense:

In its confirmation hearings, the Senate should ask Judge John G. Roberts to analyze specific cases that have come before the Supreme Court in the past. That is the only way to get a meaningful sense of where he may move the nation's jurisprudence.

And yet many senators have said that while they may properly ask a nominee about his general approach to judging and interpretation, they should not ask for detailed views about actual cases, because in doing so they will force the nominee to prejudge issues that may come before him later.

This is nonsense. Of course the nominee should not make, or be asked to make, promises about future rulings. But the disclosure of specific views about past cases does not commit the judge to rule in any particular way in the future. He remains free to change his mind if he is persuaded by sound legal arguments, the same way sitting justices are free to do so.

A bit later, he suggests that the senators on the Judiciary Committee "should spend August compiling their short lists of cases [Supreme Court rulings] to bring up at the hearings." I'm still with him. He then lists five recent blockbusters on his short list, with some of his comments. I did my own reading up on these cases, and my comments are in green.

GRUTTER v. BOLLINGER (2003) Justice Sandra Day O'Connor led four others in allowing the University of Michigan Law School to consider race in admissions in order to assemble a diverse student body. To agree with the four dissenters is to condemn virtually all race-based programs. It is also to minimize or ignore national reliance on Justice Lewis Powell's writing in University of California v. Bakke, an opinion 25 years earlier that embraced careful race-based diversity plans.

That this use of race-based preferences was "careful" is succinctly refuted in Justice Scalia's opinion in the case:

I join the opinion of The Chief Justice. As he demonstrates, the University of Michigan Law School's mystical "critical mass" justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.

If "virtually all race-based programs" at state-sponsored institutions are appropriately described as such, then they should be condemned.

STENBERG v. CARHART (2000) In another 5-4 ruling with Justice O'Connor in the majority, the court struck down Nebraska's ban on late-term abortions. The Stenberg opinions reflect three distinct positions on Roe v. Wade: overrule it (Chief Justice Rehnquist, and Justices Antonin Scalia and Clarence Thomas); preserve it, but limited to its narrowest core (Anthony Kennedy); or apply its protections more expansively (the majority).

It is hard to see why this case would make the short list. It basically came down to whether any law restricting abortions (in this case, a ban on partial birth abortions) had to contain an exception regarding the health of the mother, as Justice O'Connor insisted. Evidence was presented that suggested that the health of the mother would not be better protected by this method than others, and Roberts could simply agree with that and move on. The abortion case on my short list would be Planned Parenthood v. Casey (1992), which provided several modifications of the "right to choose" that would give a better picture of the nominee's views.

ATKINS v. VIRGINIA (2002) A majority of six (including Justice O'Connor) held that executing mentally retarded criminals violates the Eighth Amendment ban on cruel and unusual punishment. The opinions assess the relevance of foreign law to constitutional rights, and they discuss whether and how the Constitution's meaning evolves.

This is a good case to ask about. I think the majority opinion in this case was judicial overreach. I cannot say it any better than Chief Justice Rehnquist in the opening of his dissenting opinion:

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime.

If a nominee doesn't agree with this reasoning, I would be concerned. It is not about whether I would support legislation that allowed the execution of this group of criminals. It is about whether the authority to make such a decision resides with the state legislatures or not. I see no reason why it doesn't.

McCREARY COUNTY v. A.C.L.U. (2005) Justice O'Connor joined four others to end Kentucky's display of the Ten Commandments in its courtrooms. To embrace the dissents is to abandon the requirement of government neutrality toward religion and instead to permit significant government promotion of Christian doctrine.

I think this is another interesting case to ask about (though less interesting than those that pertain to the Constitutionality of, say, vouchers that allow children to attend parochial schools instead of public ones). As with the Grutter case above, I think Amar's characterization of the dissents is overstated. He cannot really be arguing that the laws of Kentucky bear no influence of the Ten Commandments. A prominent display of the Ten Commandments in a courthouse does not establish a religion, nor does it inhibit the free exercise of the religion. So what's the problem? I would like to know Judge Roberts' views on the First Amendment and religion in the public sphere, from the Everson (1947) case to the present.

SEMINOLE TRIBE v. FLORIDA (1996) In this seemingly technical 11th Amendment dispute about whether states can be sued in federal courts, Justice O'Connor joined four others to override Congress's will and protect state prerogatives, even though the text of the Constitution contradicts this result. Questions about this case will test the nominee's commitment to carefully following the literal text of the constitution.

I confess, I cannot follow the issues here. This will be the part of the hearings where I channel surf--or blog.

I enjoyed the exercise of going through the various cases as an amateur. It is interesting to see what parts of the Constitution and subsequent laws where we will insist on neutrality in our public institutions and where we will not--in my case, race and religion, respectively.

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I commend the entirety of Bruce Bartlett's column, "18 years should be long enough," to your attention. In it, Bruce presents a persuasive argument that the Republic might be better served by consitutionally limiting the appointments of Supreme Court Justices for single terms of 18 years. The choice of 18 years is to allow their terms to be staggered at 2 year intervals.

This would ensure a regular pattern of turnover on the Court and, according to Bruce, lower the intensity of the aperiodic battles over nominees, like the one(s) we are about to experience. It would also have the salutary benefit of reversing the trends toward younger appointments and older retirements that Bruce documents, both of which seem to be responses to the politics of these nominations.

This one would be worth the trouble of amending the Constitution.

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I know very little about playing hardball in politics. But it does seem like too much is being made out of the possibility that the Democrats will filibuster against a vote on a nominee for the Supreme Court.

My recollection of Supreme Court confirmations is that the nominees look pretty intelligent when they answer the Judiciary Committee members' questions thoughtfully and the members of that Committee look like idiots when they make speeches rather than asking questions. Nominees look silly when they refuse to give answers to reasonable questions. In my view, reasonable questions are things like, "Did you agree with the majority or the dissents in Kelo? Please explain why." Anything in their past judicial rulings or scholarly writing is also fair game. Hypothetical questions about cases that don't exist or specific cases that may be pending are not.

Okay, so suppose the President nominates someone who has an impressive record and who answers reasonable questions with thoughtful answers. What is the Democrats' recourse? Huge media blitz? Big deal. Most people now tune that out, because there will be ample talking head noise both for and against the nominee. Massive demonstrations with histrionics? Same as the media blitz. Worried about a repeat of the Bork nomination? Up the ante by nominating someone from an underrepresented group on the Court, like a woman or ethnic minority. There are several on the list of well qualified candidates that the President seems to be considering.

And, ultimately, if it looks like the nominee will receive a Senate majority, the Democrats could attempt to filibuster. Again, big deal. How long could they possibly sustain it? Some Democrats might defect, allowing a cloture vote, as the rest of the government's business comes to a halt. Just wait them out. They will look like idiots. All the President has to say is, "Judge X is one of our nation's most respected judges. S/he answered the Senators' questions in a thoughtful manner during the confirmation process. S/he is entitled to an up-or-down vote on the floor of the Senate." And he should say that and only that every day. Ultimately, he wins.

Another strategy would be to ask the nominee to withdraw, to bring the filibuster to a close, and then, at the first opportunity, make a recess appointment. This isn't as successful an outcome, but it is worth pointing out that recess appointments are actually written into the Constitution. Filibusters aren't.

The sentiment in this country is toward simple majorities and people getting along with each other. If the President nominates someone with appropriate qualifications who can thoughtfully answer the Committee's questions, then he will have the sentiment of the people behind him. He need only keep the focus on the Senate Democrats' refusal to act and he will eventually get his way.

For a very different opinion, by someone who knows a lot more about hardball in politics, see Patrick Ruffini's post from yesterday.

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I cannot believe the majority's opinion in Kelo v. New London. As Todd Zywicki put it, we now have government by the Honor System. The Fifth Amendment enables takings of private property only for public use and, even then, only with just compensation. "Public use" has to have a meaning other than "whatever the legislature thinks would be appropriate." Now it doesn't. Pity.

Here's the ironic part. The 5-4 majority was the liberals on the court (the 5 who aren't O'Connor, Rehnquist, Scalia, and Thomas). I would think that most liberals--vanguards of the poor and disenfranchised--will be the ones to rue the day that the Court allowed unseemly alliances between corporate interests and their political handmaidens to evict the poor and disenfranchised in the name of something as vague and manipulable as "economic development."

Julian Sanchez and Don Boudreaux also make this point very succinctly. Eugene Volokh takes us through an interesting thought experiment:

Now there are certainly other arguments in the dissents' favor. Perhaps Justice Thomas is right that the original meaning of the "public use" requirement was to mandate that the property be owned by the public or by a common carrier, and that we should therefore insist on this meaning. Or perhaps Justice O'Connor is right that without some such requirement, the government would have too much power to merely take property from one person to another, with no real public benefit. Or one could argue that as between (1) no takings, (2) takings of property to be owned and operated by the government, and (3) takings of property to be owned and operated by private parties, but for a public benefit, #3 is indeed more efficient than #2, but #1 is most efficient of all — and that we therefore should allow only #2, precisely because its inefficiencies will provide a natural deterrence to takings, and push the government more often into the best position, #1. I'm certainly sympathetic to finding some constitutional limit to government power here.

I would gladly allow the improvements of moving from #2 to #3, but the standard for what constitutes a "public use" ought to be that it is both a public good and that there is no other feasible way to obtain that public good. So it cannot just be for a railroad or a hospital--it has to be for a railroad or hospital that cannot be built any other way. If we had a better standard, then we could pursue the efficiency advantages of private implementation. But certainly not until then.

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