Saturday, July 23, 2005

Appointing a judge to sit for the next 30 years

I had occasion to talk about Jack Balkin's op-ed yesterday. There's one other point he raises, which I would like to discuss. Professor Balkin worries thus about the Roberts nomination:
The most dangerous issue is presidential power. Bush has pushed the constitutional envelope, throwing U.S. citizens in military prisons without hearings, and demanding the right to search without judicial warrants. His lawyers claim Congress can't interfere with his interrogation practices, even if cruel, inhuman and degrading. Absolute power corrupts absolutely, and courts are one of the few institutions with an interest in preserving the rule of law from an overreaching executive. Don't expect Roberts to stand up to Bush. Roberts will support the president.
This is similar to a general argument Meredith has made on this blog. I agree entirely with Balkin and Meredith about the pressing dangers of executive privilege, and this is one reason I was uncomfortable with Alberto Gonzales even as he was being hailed as the ideal moderate appointment by so many. So too does this make me nervous about Roberts -- but in context, always in context. Balkin's argument is not really that Roberts supports expansive presidential powers in principle (though he may well). Rather, it is that Roberts is Bush's man.

Well, let's say he does defer to the President for personal reasons. This would be a problem, what with executive privilege and torture and cruel, cruel illegal detentions and extraordinary renditions and basically setting back American international legitimacy, like, a millenium. But the problem will only last for two years. President Bush will be leaving office then, and Roberts will still have three decades left on the Court.

Balkin's argument, despite itself, raises a larger point. Let's think about the three decades. Today has its ideologies and its issues. Some are going to be decided by Congress and the President in ways that Balkin, Meredith, and I all find problematic, even offensive. The thing is, legislatures and executives change, as do the perspectives of the people who put them in office. If we are concerned about civil rights and about the environment, for example, we can take some comfort in the fact that attitudes on these issues are moving in the right direction. Gay rights is really a generational question. You will find very few teenagers who think gay people don't deserve everything straight people deserve; and those that do think so, well, their classmates will happily tell you they're assholes. Very few members of the business community still support the Bush administration's refusal to acknowledge the dangers that global warming presents. They see the reality of the threat and thus they see the necessary legislation capping greenhouse gas emissions on the horizon; they are making the transition to new technologies now, in order to save on costs. As the thoughts of the electorate on such matters shift, so will the response of the legislature to them. Roberts may or may not defer to the present President's poor judgments. What we really ought to insist on, however, is a justice who will defer to the Congress' judgment. We need a Justice who will allow the country to define its legal self as its conception of its needs, fears, and responsibilities evolves. As far as it is possible to tell, John Roberts is such a judge.

Nathan Newman had a good post on Wednesday about Roberts' judicial restraint:
I thought this remark Roberts made in the hearings was telling when he was asked about when courts should defer to elected bodies:
...the constitutional limitation doesn’t turn on whether it’s a good idea. There is not a ‘‘good idea’’ clause in the Constitution. It can be a bad idea, but certainly still satisfy the constitutional requirements.
In a sense, this is the point of democracy. The people have the right to enact bad ideas without judges trying to second guess them.
The President has said over and over that his first goal was to find someone who will not legislate from the bench. It seems to me that he has. Roberts has a conservative ideology, but he is not an ideologue. Roberts' dissent on the en banc decision in the Rancho Viejo, properly interpreted, illustrates his respect for law over ideology. When you look at the practical jurisprudence of conservative judges, you can see a large difference between them. This was a significant choice of the President's about a significant issue.

Unthinking Partisanship

This is embarassing. When did "the friend of my enemy is also my enemy" become guiding principle for deciding issues of substance? Everyone has access, more or less, to the same information about John Roberts. Use it; positing conspiracy in the absence of argument is a low road to travel.

So too does PointofLaw see a conspiracy where there is none. Jonathan Wilson asserts that
The only approach the left will be able to muster has two parts: (1) ask the nominee unfair questions, designed to showcase his personal or political opinions and (2) attack the nominee either on the basis of his answers or on his refusal to answer.
Senator Charles Schumer (NY-D) is the focus of this worry. Wilson cites some reasonable precedents, from the nomination hearings of Judge Ginsburg, which I urge readers to look at. I also urge readers to look at the actual list of questions that Senator Schumer just released for Judge Roberts. They fit well within the guidelines Wilson endorses and are all eminently proper. Readers would profit from considering the questions in their own minds.

UPDATE: NRO Bench Memos has a discussion of what types of questions the Senate may ask Roberts. The consensus seems to be that Schumer's are good ones.

Friday, July 22, 2005

Balkanization on abortion -- a blog reflects the real world

It is interesting to compare these two posts from the great legal blog, Balkinization. Jack Balkin writes an op-ed that focuses primarily on what the appointment of John Roberts to the Supreme Court would mean for abortion. This is part of a larger argument he has made (and here). Essentially, President Bush and his political allies recognize that, as long as Roe v. Wade keeps abortion legal in some form, they will be able to maintain the social conservative voting bloc that keeps them in power. Therefore, they do not want Roe v. Wade overturned. I think this is correct, as far as it goes (and it should give single-issue reproductive rights voters real pause in thinking how they conduct their activism). He further argues that what the President et al. want is, while keeping abortion technically legal, to dramatically restrict the access people have to it practically. This is the best of both worlds for them: they restrict abortion -- which they believe is an abhorrent practice -- and they keep the voters angry and voting.

Professor Balkin has just edited a book on the legal and political questions surrounding abortion, and far be it from me to assert that he's wrong. But I think he may be. Mark Graber's post on the same site does not directly reference Balkin's argument, but seems to deny a lot of its substance. The essays should certainly be read together. Graber argues that
The big point is that a heavily regulated abortion right is not a hollow shell, that the vast majority of persons able to obtain abortions because of Roe v. Wade will still be able to obtain abortions if all the standard restrictions become law.
Graber thinks that reproductive rights will remain substantial and the restrictions will be largely symbolic. Balkin thinks that the rights will become symbolic, while the restrictions will have the real force. Graber goes on to worry about the electoral and, therefore, further policy consequences of fighting against partial restrictions on abortion -- as Balkin would -- rather than fighting simply to preserve the core of reproductive rights as defined by Roe. (Balkin's only real argument that what Graber calls symbolic restrictions on abortion would actually restrict access comes in the form of an analogy to segregation and Brown v. Board of education, but this seems to me to be comparing apples and oranges. Certainly Balkin doesn't attempt to justify the analogy.)

I think there are three good reasons, in ascending order of importance, for supporting Graber's third option, what he calls "stigmatized abortion" and what Balkin fears.

1. The (very real) questions of rights and socio-economic discrimination aside, abortion is morally problematic. I would be more comfortable in a society, which recognized and addressed this difficulty. I am as uncomfortable with reproductive rights activists who, for the sake of winning the argument, refuse to acknowledge the least trouble in a large number of abortions, as I am with those who refuse to recognize that abortion in all cases is anything but unjustifiable murder.

2. The electoral and policy consequences: absolutists on both sides of the political aisle have used abortion to deform our political process. Abortion simply ought not to have the importance it does in today's political discourse. Not because abortion is not an important moral and social issue, but because the issue is misconstrued by absolutists. In other words, abortion is an important issue, but the differences -- almost semantic, at times -- between an absolutist position and a moderate position are small. Yet these are the differences we are fighting over. Because of the fight over small differences about abortion, we are unable to make headway on large differences on important questions. For example, if abortion became less urgent an issue, many evangelical voters would turn their attention to addressing poverty and environmental degradation.

3. The democratic aspect (small d): The majority of this country does feel ambivalent about abortion. They believe in a core right to an abortion, but also wish fervently that people would not (have to) exercise that right. A policy like Graber's "stigmatized abortion" would reflect this majority conviction, as is appropriate in a mature democracy like our own. Pro-life social conservatives often complain that the courts have hijacked this issue. No, no, they haven't. As you will hear a lot in the next several weeks, there is a lot of room for interpretation in Roe v. Wade and even in its affirmation, Casey. The people who have hijacked the debate are absoltutists on the right and the left, who follow their moral convictions roughshod, without any regard for the fact that they live in a society of differing and equally legitimate viewpoints. This is always a problem for a democracy -- how to reconcile opposing views, when persuasion has failed. The solution to that problem is usually pretty simple -- majority decides. In this case and in this country, the majority is for stigmatized abortion.

Thursday, July 21, 2005

What's conservative and what's controversial?

For some progressives, who weigh in on the Supreme Court seat, including some of my colleagues here, a conservative bent in a nominee translates directly into controversy. Judge Roberts has without question a conservative ideology; but does that make him perforce into a controversial candidate for the Court?

Judge Roberts was nominated by a conservative president, and he will be approved -- I think most everyone agrees on this -- by a conservative Congress. Progressives may find this an unhappy situation, but the President and the Congress were voted into office by a populace that finds their conservative ideology amenable. There is little that is controversial about this; indeed, it is entirely proper that a conservative justice would result from this process.

Ideology is one of the key concepts in evaluating the question of controversy. When one uses the word "ideology," one can mean two very different things. An ideology can just mean a world-view. This is not extraordinary; everyone has an ideology in this sense of the word. We use the other, more marked sense of "ideology" to suggest that someone's world view is so strong, so unusual, and so narrow that it deforms their judgment. The result of this deformation is extremism and the sort of radical decision-making that abandons common sense and, in the case of judges, causes them to ignore precedents, dismiss settled law, and read their personal political views into (or out of) the Constitution. We use this second definition of the word when describing judges as activists (though this description needs to be made with some historical perspective in mind). Constitution-in-exile judges, like Clarence Thomas or Janice Rogers Brown, may be fairly characterized by this second, stronger meaning of "ideology."

It does not appear to me that Judge Roberts is ideological in the way that Thomas or Brown is. Inevitably, people will disagree with a nominee's political philosophy; people have different world views in a pluralist society. The question, however, is this: is the nominee's ideology of the sort that would cause him to override the checks that have been built into the legal system to ensure that ideological pluralism flourish? Will the aggregate of his judgments result in a narrow and intolerant definition of law? I don't think -- knowing what we do now about Roberts -- that one could answer "yes" in asking these questions about him. To take only the issue most likely to result in a divisive confirmation process, this is part of the transcript from his 2003 confirmation hearings to the Circuit Court:
Senator Durbin. And so I am asking you today what is your position on Roe v. Wade?
Mr. Roberts. I don't--Roe v. Wade is the settled law of the land. It is not--it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.
Senator Durbin. Then, let me ask you this question. You make a painful analogy, from my point of view, when you suggest that calling for the overturn of Roe v. Wade was not any different than the Government calling for overturning Plessy v. Ferguson and Brown v. Board of Education. Plessy v. Ferguson, separate, but equal, was really the basis for racial discrimination and segregation in America for decades. I hope that that is just a strict legal analogy and does not reflect your opinion of Roe v. Wade policy compared to Plessy v. Ferguson policy.
Mr. Roberts. Senator, the question I was asked, were there other occasions in which the Department--if I am remembering correctly--if there were other occasions in which the Solicitor General had urged that a Supreme Court precedent be overturned, and that is just--Brown v. Board of Education is the most prominent one. The answer wasn't meant to draw a particular substantive analogy.
Senator Durbin. And I will not push any further because I was hoping that is what your response would be.
(via Jack Balkin).
Contrary to what some Republican Senators have claimed, the Senate ought to examine the ideology of any judicial nominees. One goal of this exercise is precisely to determine which sort of ideology the nominee has. If it is the second and extreme kind, the Senate ought to resist confirmation. Another goal in examining a nominee's ideology is to enable democratic discussion about what sort of world-views (ideologies in the first, weaker sense) we, as a body of citizens, find most amenable. Such a discussion is valuable in itself, and I hope the Senate uses this opportunity to help us reflect on the question. But, after having had this discussion, I would hope Senators not resist a candidate simply because they disagree with his political worldview. (Resistance here would mean something like conducting a filibuster; simply voting against a candidate because you disagree with his world-view is entirely appropriate.)

This isn't the only question we should be asking about Judge Roberts. His record as a judge is short and does little to illuminate his underlying ideology. The Senate should work hard to learn more about him. Jan Crawford Greenburg of the Chicago Tribune writes that
"Confronted with a Supreme Court nominee they believe to be deeply conservative [I choose to gloss this as "ideological in the second sense"] — but with little evidence to prove it — Senate Democrats have begun laying the groundwork for a battle with the Bush administration over access to documents and memos John Roberts wrote while working in two Republican administrations ... While acknowledging his reputation as a first-rate legal thinker, a number of Democratic senators have indicated they will seek some of the confidential internal documents and memoranda Roberts wrote as a government lawyer, working for Presidents Ronald Reagan and George H.W. Bush. Those documents, they suggest, could give them vital insight into Roberts’ views on abortion and other issues. That sets up a potentially fiery debate, not initially on Roberts’ positions, which remain obscure, but on Congress’ right to have access to the confidential papers as it makes a decision on whether to grant Roberts a lifetime appointment to the Supreme Court."
The Senate, in asking for these documents, would only be fulfilling its role of advise and consent. They would enable the Senate to accomplish both of the goals I consider proper to judicial confirmation hearings. For example, the goal of enabling public debate: Roberts must be questioned hard on his approach to civil liberties in the context of the war on terror (and this is the one issue that I think, given certain circumstances, could be legitimately used to oppose strongly his confirmation). A thorough examination should also reveal whether Roberts merely, like the rest of us, possesses an ideology or is rather, in fact, an ideologue, another Thomas or Brown. Republicans should not resist the legitimate desire of Senators to fulfill this task. But Democrats should realize that accomplishing these goals does not necessarily entail refusing Roberts a place on the court.

UPDATE: The LA Times puts it in a nutshell:
Senate Democrats, after months of preparing for a full-scale fight with President Bush over a Supreme Court nominee, found themselves Wednesday instead weighing whether or how to battle his choice of John G. Roberts Jr. The problem Democrats face is that Roberts, a well-known Washington lawyer before becoming a federal appellate court judge in 2003, appears to be more conservative than they would like but less ideological than they had feared.
I would hope this really isn't a problem.

Wednesday, July 20, 2005

J.K. Rowling on Roberts and Other Controversial Nominees

From Harry Potter and the Half-Blood Prince:

"When the Dark Lord takes over, is he going to care how many [test successes] anyone's got? Of course he isn't....It'll be all about the kind of service he received, the level of devotion he was shown."


"Maybe he doesn't care if I'm qualified. Maybe the job he wants me to do isn't something that you need to be qualified for."

Tuesday, July 19, 2005

John Roberts review: first observations

A few thoughts on the nomination of John Roberts:

1. Look at the bigger picture. Roberts vacates a seat on the DC Court of Appeals. This may well re-open the door for the nomination of Brett Kavanaugh, one of the Filibustered 10, because rumor had it that his nomination had been shelved until there was another opening on the court. Look for the one-two punch if Roberts is confirmed.

2. Where there is no past, there is way to know the future. He fulfils a creeping rhetoric from strongly partisan Republican voices: "do not look into the past, i.e. the nominee's record, to try to predict THE FUTURE, i.e. how s/he might rule on various matters that perennially draw attention". How do you ensure that? By nominating someone with virtually no paper trail--Roberts has sat on the appellate court for only two years.

3. "the apple may not fall far from the tree". One of the prime requirements of the Supreme Court is that it, and its members, be independent. That is usually discussed in terms of political partisanship. But how would it feel to be serving on the bench with the justice you once clerked for? That's the position that Roberts would be in, as a former protege of Chief Justice William Rehnquist. It seems kind of like having your intellectual and professional father--can you ever truly act as, or be treated as, his equal? Depends on the person, of course, but I can imagine that it might be very difficult to but agree with your father-esque figure.

4. Look at the bigger picture, part two. The BBC reports that "[Roberts] was part of a three-judge panel that ruled last week that controversial military tribunals at Guantanamo Bay, Cuba could go ahead." Those policies were constructed on the watch of--you guessed it--another member of the Filibustered 10, William Haynes.

More than anything, it is the balance-of-power questions that move me to spend time researching judicial nominees at the federal level these days. According to, here's the force of the ruling that Roberts joined in Hamdan v. Rumsfeld (this latter link to the law firm providing pro bono legal aid in the case, Perkins Coie LLP):

The opinion says that Congress authorized the president to set up whatever
military tribunal he deems appropriate when it authorized him to use "all
necessary and appropriate force" to fight terrorism in response to 9/11. While
the president has claimed the authority only to try foreign suspects before the
tribunals, there's nothing in the Hamdan opinion that stops him from extending
their reach to any other suspected terrorist, American citizens included. This
amounts to a free hand—and one Bush is not shy about extending. The
administration has already devised its own tribunals to review its claims that
the Guantanamo detainees are all enemy combatants who are not entitled to the
international protections accorded to prisoners of war. As of February, 558
hearings had resulted in freedom for only three prisoners. The Supreme Court has
yet to rule on the legality of these tribunals—a question that Roberts may now
help decide.

Which brings us back to a question that I frequently ask in these posts: why is it so easy to construe a number of these more controversial nominations as some kind of reward for services rendered? I don't know if that is the case in fact, but the pattern is certainly there, and the appearance of impropriety can be just as damaging as actual impropriety.

That said, I was very heartened to read Sen. Ben Nelson's (D-NE) repudiation of Bill Lehrer's implicit suggestion that the Gang of 14 was some kind of new "super Judiciary Committee" within the Senate.

5. Some good news: substantive debate may follow. The fact that Roberts is said to have "impeccable credentials" by the BBC (which has no real horse in this race) may in fact force Democrats and Republicans to treat the contentious issues in our nation on the basis of fundamental ideological differences on the role of government and what happens to people when government steps out of the way--and how a government may and may not behave toward citizens and foreigners. Roberts' record, such as it is, offers opportunities to talk about many of these issues, without getting dragged down into the mud over personality or identity politics.

An obstacle to this kind of discussion is that so many people of many political persuasions have become accustomed to fixing on just one or two issues that they identify with most, rather than a coherent political philosophy that directs the way they seek to interact with others and how the government should mediate that interaction. Abortion is already the topic in question, from both NARAL and from the Christian Coalition, which recently "announced the formation of its Judicial Task Force with chairmen in every state in the country, created to ensure that the U.S. Senate allows fair "up or down" votes on all nominees to the federal judiciary" . While special interest issues are important to discuss, it's even more so that they be discussed within a broader context, which helps to sort out political opportunism from consistent philosophy, setting a baseline for integrity. It's important that we ask our senators for a debate that takes a step back and tries to see that big picture.

Roberts it is

John G. Roberts is the nominee. There will be plenty of reaction and analysis to come.

My turn for predictions

My psychic skills basically derive from the fact that I have the SCOTUSblog bookmarked and they are suggesting Roberts to be the likely nominee. We'll find out soon enough.

If it is Roberts, there are some reasons to worry, as AJF reports. I was especially concerned with his environmental record and his role in keeping weak the Voting Rights Act in the 80s (while working for the Reagan Administration). Roberts appears to be very conservative; those who want the court to maintain its present ideological balance will be unhappy if he becomes O'Connor's replacement. But he in no way appears to be an extremist in the mold of Janice Rogers Brown or Clarence Thomas.

I cannot predict what the reaction of the Democratic Senators will be. Senator Reid -- bizarrely enough -- promised not to filibuster last week, but given that the Democrats don't appear to have any real plan at all, it's hard to say what they will do.

Happy 9 pm viewing!

Roberts to be the nominee

It has been confirmed that John G. Roberts, a judge on the Circuit Court of Appeals for Washington, DC, is set to be the nominee that President Bush will announce live tonight at 9 PM EST.

I believe that Roberts is fundamentally a bad choice for America's more important judiciary.

When I posted the shortlist of candidates a couple of weeks ago, Judge Roberts was on my absolutely "NO" list. He may be credentialed in general, but he's a terrible nominee.

On the political level, he's an opponent of Affirmative Action and under the first Bush presidency, he wrote a friend-of-the-court brief that argued that public high school graduations could include religious ceremony. Instead of clearly defining the separation of church and state, he encourages a blurring of the line, thus deeply threatening the integrity and, to the extent that the Court has it, objectivity (in the form of precedent) on the issue.

On the judicial level, there isn't much in the form-of a paper trial for Judge Roberts. It seems pretty clear that he'd vote to overturn a lot of the pragmatic precdents that the most recent Court issued or affirmed. Like I've said all along, the importance of stare decisis is the critical underlying factor in choosing the best person for the job. John G. Roberts isn't the right person for the job he's about to be nominated to do.

So much for my psychic skills

Looks like it was the right-wing echo chamber that may have propelled a few small rumors about Clement getting the nomination into a full-blown media speculation and distraction.

The Supreme Court Nomination Blog dedicated a huge amount of work to reviewing Judge Clement's decisions and her jurisprudence, only now they're off the Clement bandwagon as well, hearing all the rumors that I've been hearing too.

The rumor mill is now speculating that it will be the other Edith--Edith H. Jones--also known as the female Scalia.

If so, Students, and anyone, for the Judiciary are going to have some tough work ahead of them.

Officially, I'm now going to say this and quit speculating: I have no clue who the nominee will be.

I'm sure that's not hard for you to believe, but at least I'm being honest.

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A woman to replace O'Connor

More and more speculation is arrising over the next nominee, especially since it appears as if Attorney General Alberto Gonzales will not be the nominee.

Interestingly enough, though, Bush doesn't seem to be pandering to the radical right by selecting a terrible judge. The consensus candidate appears to a woman by the name of Edith Clement. She's currently on the 5th Circuit Court of Appeals. She was confirmed by the Senate 99-0.

People for the American Way have this one link with stuff against her, but overall, she appears to be small fish compared to other candidates' names thrown around by President Bush. I talked a bit Judge Clement here last month when discussing the shortlist of nominees. At the time, she was the only woman on the list.

This Washington Post article, just posted a few minutes ago, also discusses the speculation that the nominee will be announced today and that it will be Judge Clement.

I'm going to go out on a limb here and state that this isn't going to be the Supreme Battle that everyone expected. Liberals are going to be semi-pleased, I believe, but will be paying close attention to her. Evangelical fundamentalists are going to be pissed and are going to take it out on Bush.