Students for the Judiciary

Gonzales goes a-courtin'?

2005-09-21T13:34:00.000-07:00

The other day, my friend Johnny sent me an item that linked to a Washington Post article, "Recruits Sought for Porn Squad", by Barton Gellman:

Early last month, the bureau's Washington Field Office began recruiting for a new anti-obscenity squad. Attached to the job posting was a July 29 Electronic Communication from FBI headquarters to all 56 field offices, describing the initiative as "one of the top priorities" of Attorney General Alberto R. Gonzales...

The article starts by leaning more toward how agents are laughing down their sleeves in derision and/or exasperation at the idea of diverting resources from terrorism to the persecution of pornography featuring consenting adults, which the FBI memo admits tends to "encounter many legal issues, including First Amendment claims," according to the Post.

What interests me more in the article is the revival of Reagan Attorney General Edwin Meese's crusade:

But Gonzales endorses the rationale of predecessor Meese: that adult pornography is a threat to families and children. Christian conservatives, long skeptical of Gonzales, greeted the pornography initiative with what the Family Research Council called "a growing sense of confidence in our new attorney general."

When Gonzales' name was floated as a possible nominee for O'Connor's seat on the Supreme Court, social conservative groups were unhappy with his borderline stance on issues like abortion. Really, really unhappy:

Gonzales is considered suspect by pro-life forces and has a thin, hard-to-pin-down track record as a Texas judge. In fact, he is the only A-list contender whom religious conservatives pledge, upfront, to fight. "We'd oppose him," said Tom Minnery of Dr. James Dobson's Focus on the Family. ("The Holy War begins", by Howard Fineman and Debra Rosenberg, Newsweek)

(See also "Conservatives: No to Gonzales", by John Gizzi, and "Again, Right voices concerns about Gonzales", by Thomas B. Edsall and Michael A. Fletcher.)

So now pornography between consenting adults, and its distribution, is a matter of concern for Gonzales. A political move positioning him for a second chance at O'Connor's seat? It also seems a bit convenient to be taking the lead of former Attorney General Edwin Meese: see his report and reactions to it. Current position of Edwin Meese: one of the "four horsemen" who advise Bush on federal judiciary nominees. Guess who else say on that commission? James Dobson, currently of Focus on the Family. Coincidence?

Rehnquist passes on

2005-09-04T02:19:00.000-07:00

This evening, AU Yellow Dog called me from a football game to pass on the news that Chief Justice William Rehnquist has died. Before the career autopsy begins, followed by prognostications about the future, a moment of appreciation for a longtime public servant.

Note to "anonymous" #2 comment, September 21: Well, each of us is our own person, so my colleagues and I don't have to agree all the time. In general, I certainly don't appreciate that Rehnquist's stances on a multitude of issues were not friendly to mine, to say the least. But, at the moment of his death, I stepped back enough to recognize that, despite that difference, the position that he held was an incredibly difficult one for any person to do. That admission does not validate his positions, but as the top administrator of the court, he was recognized even by those who vehemently disagreed with those positions as able to hold together a court staffed by widely divergent thinkers and to keep it functioning. If you've ever managed a group of strong-willed individuals who need to somehow work together toward a common good, you know how difficult this is.

At any rate, that moment has passed.

Personal connection--dating service or judicial nominee criterion?

2005-08-29T12:56:00.000-07:00

Normally I would not post more than once a day, but while researching the other entry, I came upon this little gem in the Boston Globe online ("Bush picks jurist for top court, calls for a 'dignified' process", July 20, 2005):

After a day filled with rumors, the announcement of Roberts as the court nominee took much of Washington by surprise.
A senior White House official stressed yesterday that the choice reflected a personal connection that Bush made with Roberts during the vetting process.
''He really hit it off with Roberts," the official said. ''As you know, the president is a person of intuition and he saw in [Roberts] not only a brilliant legal mind but a terrific judicial temperament."

Okay, quick quiz. About whom did Bush say the following:

<>

<>I looked the man in the eye. I found him to be very straight forward and trustworthy and we had a very good dialogue. I was able to get a sense of his soul. He's a man deeply committed to his country and the best interests of his country and I appreciate very much the frank dialogue and that's the beginning of a very constructive relationship.

If you guessed Vladimir Putin in June 2001, you're correct! And if you've been following any news over the past four years about developments in Russia--or should I say, frightening regressions from anything an American would recognize as democratic process, or care for the vast majority of the citizens of Russia--then you can be the judge of just how wrong Bush's intuition can be. Or, how specious. Is recourse to "intuition" just another rhetorical tool for dodging the possibility of being asked about any specifics?

I've posted in the past about how government is no place for these kind of criteria when we're considering filling positions of importance--lifetime positions that will shape the legal reality under which we all live, no less. Of course, you want the President to be able to work with people on his own staff (although there is a little something called professionalism that should prevail in the interests of serving the public). But what legitimate relevance the president's personal liking for a person who will not even serve in his branch of governance, let alone his office, has in this case, I am at a loss to say.

Operation Iraqi--I mean, Supreme Court Freedom

2005-08-29T11:46:00.000-07:00

While browsing through links from a friend today, I happened upon a most interesting page in the Christian Broadcasting Network (CBN) site. The page is titled "Operation Supreme Court Freedom", and it features a letter from Pat Robertson, "prayer points", and encourages you to submit your "pledge to pray". Pray, for what?

In brief, the militaristic name of the "operation" plays on "freedom" as it relates grammatically to "Supreme Court", oscillating between the ideas of negative liberty (freedom from something) and positive liberty (freedom to do something). On the one hand, the letter advocates freedom from the "black-robed tyrants" who have occupied the bench for the past 40-odd years. These judges pushed a "radical agenda...with devastating results...But now the scales seem poised to tip in the other direction." The idea is to allow the, I suppose, natural inclinations of the Supreme Court to prevail:

Today, we can look forward to the very real possibility of a conservative majority on the Supreme Court — justices who will uphold the original intent of the Constitution and not impose their personal or political beliefs on the American people.

So, we can also look forward to the rectified Supreme Court's freedom to uphold the "original intent" of the Constitution, which directly implies freedom from "personal or political beliefs" held by individual justices.

A few thoughts here. First, the blanket vilification of the Supreme Court as an entity, by metonymy with the people who sit on the bench (you know, the "tyrants", initially represented as inclusive of all the justices in the past 40 years), is lifted when the majority of people who staff it hold conservative positions. So the legitimacy of the institution appears to be pegged not to its Constitutionally-mandated existence, but to the broadly defined ideology of those who staff it. But second, what is crucial is that the court be free from "justices who...impose their personal or political beliefs on the American people". Did I miss something, or wasn't it just established that there are people who should be imposing their personal and/or political beliefs on us--conservatives? Gee, that sounds downright...tied to politics!

Third, the emphasis on the "original intent" of the Constitution rubs a bit uncomfortably against "prayer point" no. 3, "Pray that the justices of the Supreme Court would rule according to the Constitution as written and not man's opinions." To begin with, once you start discussing "intent", you are in the realm of interpretation, a distinctly human activity. Further, is there anyone who would suggest that the Constitution was in fact not composed of "man's opinions"? Such language is better fitted to the way some people talk about the Bible: as handed down by God. This conflation, which applies the religious concept of reverence to a undoubtedly man-made document, is at the heart of how power brokers manufacture a popular desire for a strict constructionism ("prayer point" no. 12) that would, in fact, disadvantage the majority of citizens: broadly, women, non-whites, and those outside of the economic elite. It strikes me as a cruel and dirty trick to put honest people to work advocating for their own destruction by wrapping the pernicious idea of returning to a specifically 18th-century world-view in the garb of piety. Granted, not every judicial decision based on a non-literal interpretation of the Constitution will stand up to scrutiny, because there must be human opinion involved. That's where appeals come in. But as I've written before, is illegalizing abortion at the cost of vitiating our established (but not explicitly written) right to privacy the best way to combat the entailed human suffering?

Ehem. Robertson continues, further down:

Before the president's announcement [of his nomination of John Roberts], I had the privilege of going over a briefing book that was provided by the American Center for Law and Justice (ACLJ). The book contained a short list of justice candidates who fit the president's judicial philosophy, and I am delighted to say that John Roberts was at the top of this list, though at the time, we thought the president would select a woman to replace Justice O'Connor.

Interested in this briefing book business, I hopped over to the ACLJ site and used their search engine, which turned up not their own book, but a July 10, 2005 L.A. Times article, "Legal Activists Ready to Go Once President Bush Puts Up Supreme Court Nominee". Apparently, the genre of the briefing book is now de rigeur amongst such organizations in the event of nominations. But of particular interest was this excerpt:

...Groups on the right that scarcely existed a decade ago now have the ear of the Oval Office, a level of access liberal organizations say they never had under President Clinton.
"We're in regular consultation with the White House," said Jay Sekulow, executive director of the American Center for Law and Justice and the evangelical community's representative on a group of advisors, assembled three years ago, that helps set conservative strategy on judicial issues.

The other members of the group, nicknamed "the four horsemen," are Edwin Meese III, attorney general in the Reagan administration; C. Boyden Gray, White House counsel to President George H.W. Bush; and Leonard Leo, executive vice president of the Federalist Society for Law and Public Policy Studies, a libertarian think tank whose membership includes about 20,000 lawyers.

In the closing lines of a Newsweek article published the next day ("The Battle Over a Supreme Court Nominee Begins", also catalogued in the ACLJ site), Howard Fineman and Debra Rosenberg note:

As he prepared to fly off to the G8 summit in Scotland, Bush took along briefing books about the shortlist candidates, none of whom he has formally interviewed.

The Boston Globe concurs, and goes Newsweek one better in a July 20 article, "Bush picks jurist for top court, calls for a 'dignified' process":

Bush's short list of potential nominees included 11 candidates, according to White House officials. The president took a notebook filled with biographical information during his trip to Europe this month; poring over the briefing books aboard Air Force One, Bush discussed the issue with aides and allies, swearing them to secrecy.

Aides being in on a secret--that's one thing. Who are these anonymous "allies", and why are they being treated to secrets? And is that the language coming out of the White House staff--implying there are interested Americans who are enemies? Because if Robertson's "prayer points" are any indication, that is religious language: "Pray that any plan of the enemy for the Senate confirmation hearing would be thwarted. Take authority over the schemes of Satan concerning the Supreme Court."

I suppose that the president is entitled to consult with whomever he pleases (within the limits 0f the law). One improvement in this nomination process was that Bush did meet with senior Democratic Senators, a concern raised regarding the last batch of judicial nominees ("Bush Meets With Senators About Supreme Court", Tuesday, July 12, 2005). At the meeting with Senate party leaders Frist (R-TN) and Reid (D-NV), and ranking Judiciary members Specter (R-PA) and Leahy (D-VT), the Democrats advanced three sitting judges whom they considered "consensus candidates". However,

The [senior Democratic] aide said neither the president nor Chief of Staff Andy Card suggested any names themselves, and that Reid made it very clear he hoped Bush would consult with Democrats with specific names before any announcement is made. The aide said Reid told the president that he didn't want Democrats to be in the position of learning the president's nominee by reading about it in the media. The aide added that the White House made "no specific promise of that" but gave a general pledge to consult further.
Reid said several senators had suggested names to the White House, but it's important that Bush share names, too, because he has "hundreds of names" to consider. Asked about Democrats' objections to specific candidates said to be under consideration, White House spokesman Scott McClellan said, "No individual should have veto power over a president's selection."

Wait, "veto power"? That's a pretty far leap from "consult"--a courtesy apparently given to "allies", which, according to the ACLJ's Jay Sekulow, includes unabashed ideologues and special interest groups like his own. If I'm getting the picture correctly, the ACLJ and Pat Robertson have an inside track on the nomination deliberations of the White House; leaders within the opposition party hope not to learn about the decision after the staff of every newspaper that prints the name.

Maybe Robertson's letter is right to interpret recent events as "the direct result of prayer and intercession":

[I]n July of 2003, The 700 Club launched Operation Supreme Court Freedom, a nationwide 21-day prayer campaign. During that time, we asked our partners and viewers to pray for God to intervene and restore righteousness and justice in our land. Tens of thousands of people responded to this massive prayer offensive and cried out to the Lord to change the court. And God heard those prayers!

I will concede that it is possible that the prayers of 700 Club members did convince God to intervene and cause Justice O'Connor to resign from the Supreme Court--although I consider the monetary contributions of the faithful likely to be more effective in Washington. Either way, we should all be careful what we wish, or pray, for. I'm not sure that our Supreme Court could sustain the kind of ideological factionalism and growth of vigilante "justice" that has thus far constituted Iraqi "freedom".

Predictive Utility, sure: but what are we predicting?

2005-08-16T05:12:00.000-07:00

The debate is old hat by this point: how good a guide is John Robert's record as an attorney at predicting what kind of decisions he will make as a Supreme Court Justice?

Specifically, do we interpret his record as an attorney to be a function simply and entirely of advocating on behalf of his clients or instead to reflect his own convictions? Jason Spitalnick argues that, while specific arguments Roberts has made reflect only his commitment to his clients, the more general arc of Roberts' career provides significant evidence of his conservative inclinations. He characterizes Roberts' career choices as therefore having predictive utility. Yes, his career "predicts" that Roberts is a conservative, surprising as that may be. Count me enlightened on that conundrum.

Spitalnick's post doesn't address the interesting question at all -- can we read his earlier work for clients as indicative of his position on particular legal questions? I have the same answer as everyone on this: yes, no, maybe. In other words, the relationship between Roberts' client-service work and his future legal judgments can only be considered on a case-by-case basis. The only general truth we get from this line of inquiry is Spitalnick's trivial one.

That is to ask about the substance of Roberts' legal opinions. But substance, in any one case, depends on the method by which a judge considers the legal questions before her. The more independent variable is, therefore, jurisprudence, procedural inclinations. John Roberts has apparently changed over the course of his career in the way he talks (and therefore thinks?) about the process of reaching legal decisions. Recently, according to the LA Times, he has

said that “deciding cases was a lot harder than I thought it would be,” and that “I’ve found that I have to spend far more time than I thought I would just getting to that first step—what the right answer should be.” He also stated that he often finds himself changing his mind as he reads a case’s briefs, discusses the case with his clerks, listens to oral arguments, and convenes with the other judges. Asked about the legal reasoning he finds most persuasive, Roberts expressed a dislike for strident rhetoric.

Nick Stephanopolous, to whom I just linked, characterizes the evidentiary value of the two phases of Roberts' way of talking about the law. The more recent remarks, being more recent, possess some presumption. But the earlier Roberts' more strident ideology "has the ring of conviction." I don't see the contradiction Stephanopoulos seems to. As Roberts' jurisprudential thought and instinct has evolved, he has become less ideological and more incremental. Makes perfect sense.

So while Roberts' career as an attorney may or may not serve as an index of his likely career as a judge in substantial terms, it doesn't correlate at all closely with the method of reasoning he is likely to employ as a judge -- and this on two counts. First, an attorney does not reach decisions about final legal positions at all; his clients do. He decides how to argue the positions effectively. Second, Roberts' appears to have changed -- in perfectly understandable, even predictable ways -- since the days when he worked as an attorney. And, because his method of reaching decisions will largely determine the character of his decisions, there is not much to be learned from Roberts' career as an attorney.

Moral rectitude and political maneuvering

2005-08-09T13:49:00.000-07:00

When asked about the trustworthiness and moral rectitude of politicians, one of Woody Allen's avatars quipped "they're a notch below child molesters". It's a laugh-line from a paranoid neurotic in Annie Hall, but as with much intellectual comedy, it has the sour aftertaste of truth. We have come a long way from the idealism of JFK, and my sense is that even when Americans hope for the best from their politicians, we have become accustomed to receiving the worst--even JFK can furnish some examples in that regard.

The vicious outcry against the judges who upheld Michael Schiavo's custody of his wife, raised by public figures like James Dobson, made it clear that this branch of government, too, has been drawn into the discourse of vilification. What we are supposed to expect from these arbiters of American justice seems less clear all the time. What counts as established jurisprudence that cannot be turned back, or is there any such thing? Should we expect a judge to contravene the law when a matter of personal principle, religiously based or otherwise, conflicts? How much should a judge's personal views matter, and how do we know where a judge draws that line when interpreting the law? Even a judicial robot could not render decisions without some kind of bias, following the dictum that machines are only as smart as the people who program them. And yet John Roberts has allegedly made comments to the effect that, given his Catholic faith, he would voluntarily recuse himself from any decisions involving abortion. While that statement has been disputed (although I don't think by Roberts himself), the very idea that someone's private creed would prevent him or her from carrying out a public charge, and selectively, is troubling. I can't see how a judge could possibly function that way. That sounds like a politician talking, angling to please.

Judges, at least at the federal level, are not supposed to be politicians. That's why we don't elect them directly. They inhabit a branch of government that, while its members are vetted by the politician branches, was intentionally designed to be separate, and non-majoritarian--like the Senate that was granted the responsibility of advice and consent on them. In fact, the charge of a federal judge is all the more crucial because he or she may be asked to check the excesses of the politician branches--which, inevitably, gives those branches a vested interest in who gets to occupy those positions. And then we're back to square one: do politicians want to govern the country responsibly, or is their moral rectitude to be a notch below those who would use the asymmetrical power relation they enjoy to achieve selfish ends, regardless of the damage done to those whom they should be protecting?

I am troubled by the political maneuvering surrounding the Roberts nomination. Citizens of a democracy, including the representatives elected from amongst them into the federal government, should not have to guess about a nominee to such a sensitive position of responsibility as the Supreme Court. We may not all like what there is to hear about a nominee, but all of this "is he or isn't he" back-and-forth on any number of issues is not healthy for our confirmation process--in fact, the guessing game, with each round of headline-grabbing disclosures, tinged by the salaciousness of gossip, seems too often to become a substitute for the sober evaluation of what a nominee would mean for the direction of the country. Roberts' writings on issues like civil rights, whether produced for an employer or not, are indicative of his own thought processes--any objection to the contrary seems ot me disingenuous. The calculating stranglehold that the Bush administration is exercising over documents authored by or pertaining to Roberts during his tenure as Deputy Solicitor General under Bush 41 is only encouraging this game. Even if there is nothing in those documents that will tell us anything we don't already (supposedly) know, the impression that such an obstruction creates is that they will. And if there is really nothing there, then what's the point in the obstruction? Just to say "nyah nyah, you can't make me"?

Just as some people see the release of such documents as a matter of executive privilege, some people I have spoken to are of the opinion that if a president has the fortune to fill a slot on the Supreme Court on his watch, then he gets to pick whomever he pleases, and he shouldn't be given a hard time by those losers who happen to be in the minority at the time. Even if you subscribe to that basic idea, the moral rectitude of the politician who happens to be president should be part of that consideration, too. To begin with, the whole discourse of "winners" and "losers" is ugly and misplaced in governance--which should be a cooperative project, unlike politics, which is related but different--but moreover, it's difficult to learn about the behavior and policies of this particular administration without experiencing the sinking feeling that, as a nation, we've been had, from the war and occupation in Iraq to deceptively-named environmental policies to the drive to reform Social Security. That's why the Senate's advice and consent role is so important to preserving a government that is truly of, for, and by the people--because while one man is in a position to do terrible damage to our nation as a whole, one hundred people are given the crucial task of ensuring that this does not happen. The confirmation of John Roberts may or may not represent that damage in and of itself, but the manner in which this process is being played out by politicians and pundits is already representative of some of the worst tendencies of the system.

To close with a thought from another observer of human nature and purveyor of popular entertainment, P.T. Barnum, you can fool some people some time, but you can't fool all the people all the time. I don't want to go on feeling like the leaders of this country are playing some kind of shell game with the branch of government that is charged with vetting the legal reality in which we all live--for that is what the struggle is over, what will constitute the official reality of the United States. And so I hope that there are Senators--including amongst the "winners"--who have the moral rectitude to keep their eyes on the task to which they have been elected: to make sure that the phrase "with liberty and justice for all" continues to be true, rather than to be complicit in the degradation of the institutions that make this nation great.

Issues beyond the narrow fact of Roberts

2005-08-06T05:51:00.000-07:00

I have argued that I like Roberts as a nominee, and expressed my belief that he will make a good Justice. There are arguments to be made against him, especially his apparent sometime disrespect for the rights of individuals over and against executive power. But there are also other issues the nomination process raises, that I would like to have on people's radar screens.

1. The next nominee. The President's choice was restrained and wise, on balance. The far-right social conservatives seem to be content with Roberts, who has suggested that Roe v. Wade was a dubious decision. (Are they aware of his statements that suggest he is unlikely to vote to overturn it? Of course they are: but what do they make of them? And what of his assistance to help gay people avoid discrimination?) Roberts is not a replacement for O'Connor, as a swing vote, and I am guessing that the President does not feel bound to maintain the current ideological balance on the court. But what does the President intend to do when filling Rehnquist's seat? Will he consider that he has chosen a solid conservative and now is the time for a centrist justice? Will he, alternatively, feel that Roberts was palatable to most and that he has built up the political capital to try to push through a real extremist? Is this kind of balancing act even something the President cares about?

2. The question of Chief Justice. I would like to add a plug for a non-judge, believe it or not, to fill this role. There are two reasons for this. First, the Supreme Court is most suited for a legal generalist, given the variety of cases that come before it. Most distinguished legal figures are specialists to some degree. Second, the Chief Justice's primary responsibility is to guide the decision-making process of the court. This means he must be able to guide discussion, build coalitions, etc. This particular set of skills is better developed in managerial and political positions. A Senator or Governor would make a good Chief Justice. (O'Connor, too, would have made an excellent Chief Justice, with her political background and consequent pragmatism.) The recent example that comes to mind is Earl Warren, appointed by Eisenhower in 1953. Warren had served as California governor for the previous decade and as state attorney general before that. He was never a judge until he became Chief Justice. In the early stages of speculation about whom President Bush would appoint, some Senators' names were in the mix, e.g., John Pryor of Texas. I wouldn't have wanted to see Senator Pryor himself on the high court, but I like that elected officials were being considered.

3. This is the most important and pressing extra-nominee consideration: the Senate's role and powers in the nomination process. Right now, that issue comes down to access to documents from the White House. The Bush administration has always been problematic in this respect. From the Washington Post:

Democrats had asked for memos and other documents related to 16 cases involving such sensitive issues as abortion, civil rights, environmental protection and freedom of speech. Roberts has said his personal views cannot fairly be inferred from a position he argued on behalf of an administration. This prodded Democrats to seek documents that might have revealed his opinions about the positions he took in internal deliberations about the merits of different arguments, and whether the government should intervene.

The real issue is not a substantive one, restricted to the question of whether Roberts would make a good Justice; it is rather the procedural question of how to define the Senate's role of advise and consent to presidential nominations. Denying the Senate access to documents they request clearly usurps the Senate's consitutional duty. The White House generally argues either that the documents are not relevant or important or that they must be kept confidential. Both arguments, of themselves, damage the separation of powers. The White House must not be allowed to decide for the Senate what is or is not important for them to consider. That too easily allows abuses of the process by the executive office. When the White House chooses what documents the Senate may see, it defines the nominee on its own, rendering Senatorial consent meaningless:

Sen. Edward M. Kennedy (D-Mass.) said in a letter to Bush that White House officials are dragging their feet in producing documents they had agreed to furnish, while engaging in "the leaking of highly selective documents" that are "intended to paint a better picture of the nominee."

Moreover, it has happened time and again that when we actually see documents that had been classified we realize that there was no reason to classify them in the first place; the purpose had been to shield them from the eyes of public watchdogs, not public enemies. (It should be noted, also, that a third argument of the Republican leadership -- that the Senate should not be able to question a nominee on his personal legal and political views -- is irrelevant to the question of the Senate having access to documents. It is also, in my opinion, bogus in itself.)

The John Bolton nomination is in some respects a good precedent for disagreement between the executive and legislative branches. The White House refused documentation that would have allowed the Senate to evaluate its nominee for ambassador to the UN and the Senate refused, on those grounds, to confirm him. That's the way it should work. But it is hard to stand on principle alone: Bolton was also clearly a miserable choice for the position, in a way that Roberts is not, and part of the Senate's ability to refuse confirmation depended on the political capital that Bolton's failings gave them. Roberts lacks such acute problems and the Senate consequently has less political maneuvering space.

John Roberts, we hardly know thee

2005-08-05T05:52:00.000-07:00

This is just fantastic -- fantastic and hilarious. John Roberts gave invaluable, if behind-the-scenes, assistance in Romer vs. Evans, one of the most significant legal victories for gays rights activists. The decision declared unconstitutional that part of the Colorado legal code that denied gay men and women civil rights protections.

That's the fantastic part. The hilarious part is how those social conservatives, who consider gays somehow less than people, are now fretting and fulminating about it. I don't know that President Bush or his advisors knew about Roberts' work on behalf of gay rights, but I wouldn't be entirely surprised if they did. There have always been some indications that the President was personally sympathetic to the plight of prejudice that homosexuals face; it has only been that his feelings on this matter took back-seat to his willingness to take the political advantage he could derive from gay-bashing. (This is speculation, of course: it is always dangerous to ignore actions in favor of inferring sentiments.) It is also amusing to see how conservative legal commentators try to minimize the importance of this work for our evaluation of Roberts. NRO Bench memos has a series of posts in reaction to this news. The general theme is "Don't worry, Roberts was just doing his job. He doesn't really think gay people deserve equal respect." Whew.

But there may be something to what they are saying and it goes to the same point I have been trying to make about Judge Roberts on this blog. There is certainly no reason to think that Roberts is a gay-rights advocate in any strong sense of the word. Rather, he conducts himself professionally in strict adherence to his balanced conception of what his job entails. As a lawyer, that involves him in pro bono work taken on by his firm. As a judge, it commits him to decide carefully and with integrity how precedent, the Constitution, and other legal concerns direct him to rule.

It is not that he is ideologically inclined to defend the rights of gays. It is that he is someone who will not let his ideological inclinations direct his decision on whether or not gays deserve constitutional rights. I would much rather have someone of the latter disposition serve on the Supreme Court than the former. (Admitting, however, that I think the legal case for full gay rights is ultimately a no-brainer.)

Your privacy 0, executive privilege 1?

2005-08-03T13:59:00.000-07:00

Something that I--and I imagine most individuals in this country--prize is my privacy. The freedom to guard your own thoughts, medical history, possessions, even your actions, within the bounds of the law. But what if the Supreme Court were to decide that the law itself may expand to deny you that freedom, that defense against e.g. unreasonable search and seizure in the Constitution does not support such an "abstract" notion as the right to privacy?

A recent article in Bloomberg News points toward Supreme Court nominee John Roberts very likely taking such a position both professionally and personally, when he served in the Reagan administration (U.S. Supreme Court Nominee's Memos Questioned Right to Privacy, Aug. 2):

The documents released by the National Archives also include a ``Draft Article on Judicial Restraint'' stating that courts should not ``discern such an abstraction in the Constitution'' as the ``right to privacy.'' ...Neither Roberts' name nor initials are on the document, though the same box contains a Sept. 30, 1981, memo to Roberts from Bruce E. Fein, an associate deputy attorney general, that suggested inserting a paragraph into ``your draft article on judicial activism.''

Some of the same people, however, who might be appalled at the thought of outside forces being given a free pass to intrude on you, me, and every other law-abiding citizen of this freedom-loving country are likely to feel conflicted about the fact that this right to privacy is what undergirds many legal decisions concerning reproductive freedoms--including abortion:

In a Dec. 11, 1981, memo to his boss, Attorney General William French Smith, Roberts referred to a comment by former Solicitor General Erwin Griswold that
derided the ``so-called `right to privacy''' that formed the basis of the Supreme Court's 1973 decision in Roe v. Wade that legalized abortion nationwide. Griswold, also a former dean of Harvard Law School, was ``arguing as we have that such an amorphous right is not to be found in the Constitution,'' Roberts wrote in the memo, among papers released by the National Archives and Records Administration in advance of his Senate confirmation hearings set to begin Sept. 6. Robert[s], then a special assistant to Smith, attached a draft thank-you letter that he recommended the attorney general send praising Griswold for sounding ``some of the themes I have been addressing recently'' about courts ``restricting themselves to the proper judicial function.''

In the way that our current political discourse draws the lines of allegiance, we as a nation may be asked to make an unholy choice: between the Constitutionality of your right to personal privacy--in medical as well as other matters--and the legality of abortion. People who look only or primarily at the issue of abortion when deciding where to place their political allegiance may have the best of intentions at heart, but to seek to overturn Roe v. Wade at the expense of the concept of Constitutionally-protected freedom is to also open the floodgates of invasive governmental AND industry forces, ravenous for our consumer information and god knows what else, on the entire population of this country.

We've already been asked, ever since 9-11 more vehemently all the time, to sacrifice some of our daily freedoms (and when John Ashcroft was attorney general, he tried to institute a neighborhood spy program, sending shivers down the spine of anyone who has heard of children in Nazi Germany being taught to inform on their own parents--including thoughts expressed privately in the home). But what is especially galling is that where we as private citizens are expected to submit to this new regime that allows for potential state and industrial abuse (remember: it is in the application of power, not power itself, where wrong-doing occurs), a number of Bush's most controversial judicial nominees--including John Roberts--support the increasing expansion of privacy for the Executive branch--what is referred to as "privilege". It was the very abuse of power by Richard Nixon that caused the executive privilege of the president to be scaled back a generation ago. Are we to forget yesterday's lessons so quickly that we will see confirmation of a nominee to the Supreme Court who believes in ever more protection for the already-powerful, and no protection whatever for you and me?

John Roberts, a Judicial Democrat

2005-08-03T07:11:00.000-07:00

This one will be short, but not unimportant, I think. This from John Roberts' written reply to questions posed him by the Senate:

Precedent plays an important role in promoting the stability of the legal system, and a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.

I have written before that Judge Roberts seems eminently qualified to sit on the Supreme Court. My standard is to look not at his political inclinations but at the way his inclinations nest within his broader understanding of the role of the judge and the purpose and process of law. Another way of putting that is that a judge must keep procedural concerns foremost in his mind and not allow substantive inclinations to trump them. Roberts' statement evinces his deep appreciation of this principle. He speaks of the importance for a judge of modesty, and that is the keystone of democratic process. We each of us strive to affect our society and its circumstances in the way we consider best. But we must maintain in our minds the reminder that, despite our best intentions, we may not know what is best; our knowledge and experience, the perfect fact of our imperfect humanity, limits us in our comprehension. Others have opposing inclinations to our own; they have equal right to them and a good chance of being more right than we. This being the case, we agree, by our participation in a pluralist democracy, to respect contrary opinions and to allow them voice and action within the procedures we have established to enable the common project of moving forward together. "Other judges equally striving to live up to the judicial oath" seems to me to hit the nail squarely on its head.

Reminder

2005-08-03T07:04:00.000-07:00

First, apologies for the lack of recent posts. It's always a shock and a shame when real-life responsibilities intrude on the blissful world of the blogger. What better way to re-enter the conversation than:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

John Roberts and Executive Authority

2005-07-27T19:10:00.000-07:00

Ed. note: This post is from Chase Nordengren, a contributor on my weblog, Political Forecast. I think its a very prescient piece.

After dwelling on this issue for ... well, however long its been, I've finally come to a conclusion. Everything the pundits say about this nominee is wrong. (I know, a real shocker.) It's not about abortion or age or steady jurisprudence or compromise or a pretty resume. It's about the administration's overall strategy to expand and change the role of the executive branch in American government, which they're accomplishing in three ways:

Restoring a sense of public pride / confidence in a President (the 2000 campaign pitch, the feel of a "man of the people" President. Arguably questionable based on recent scandals, but that was a mistake.)
Consolidating power in the executive branch (PATRIOT Act, enemy tribunal policies, massive govt spending in all areas, etc.)
Making the WH the center of political and social guidence (the FCC & Margaret Spelling's restrictions of all non-Leave it to Beaver ideas, the coordination with Republican Senators when it comes to ideological message, etc.)

John Roberts was chosen because, no matter what the issue in the next 25-30 years (okay, age does sort of matter), he seems ready and able to expand the executive branch's authority. Consider the following case examples, the first two courtesy of the SC Nom Blog:

AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005) - Judge Roberts dissented from the majority's holding that the Secretary of Labor exceeded her statutory authority by promulgating certain reporting requirements for labor unions. Judge Roberts highlighted several aspects of the statutory delegation that indicated that Congress had intended to confer especially broad authority on the Secretary
Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 420 (CADC 2004): In an opinion joined by Judges Garland and Rogers, Judge Roberts dismissed an action brought by a trade association of independent dealers of heavy construction and industrial equipment. The association was seeking review of the EPA's interpretation of emissions regulations for nonroad engines. Judge Roberts held that since the EPA advice letter at issue merely reiterated the longstanding prior interpretation of the regulations, the letter did not constitute an agency action subject to judicial review. (No judical review of executive action?)
The Rumsfeld v. Padilla case, authorizing use of military tribunals for anyone the President deems an "enemy combatant", citizen or not.

Watch this issue as most important during the confirmation.

Tags: John Roberts, Executive Branch

Savvy: the man of many wiles makes a great lawyer, but-- a judge?

2005-07-26T13:54:00.000-07:00

One of the common themes in media reaction to Bush's nomination of John Roberts to the Supreme Court is "savvy". According to the Oxford English Dictionary, as a noun 'savvy' means "Practical sense, intelligence; ‘nous’, gumption"; as an adjective, "Of persons, etc.: having practical sense, quick-witted; knowledgeable, wily, experienced. Also wise to (something)." In a word, 'savvy' used in a political context implies gamesmanship, manipulation. The (judgmental) contrast between the straight-forward speaker and the "man of many wiles" is at least as old as Achilles' contemputous rejection of Odysseus' embassy in Iliad book 9. "Savvy" is an ambivalent quality; perhaps necessary for politicians, but distinctly risky when applied to our judicial system. It might have been savvy, for example, for Solomon to find out which woman was truly the mother of the baby by threatening to cut it in two, but that's not the way we administer justice in a constitutional democracy. Of course, as usual, media outlets of all stripes are willing to accommodate the treatment of the Supreme Court as just yet another arena in the deathsport that has become American political culture.

So who is savvy in this instance, and what is that taken to mean?

Roberts is himself presented as savvy in a July 24 AP story by Michael R. Blood, run in a number of newspapers nationwide: Roberts' writings show wit and savvy

SIMI VALLEY, Calif. -- John Roberts was not afraid to jab an elbow on policy or dispense opinion with a dash of sarcasm when he was a young lawyer in the Reagan White House. President Bush's Supreme Court nominee was a stickler for legal nuance who used a finely tuned political radar to steer officials away from entanglements on Capitol Hill. Roberts' writings, stored at the Ronald Reagan Presidential Library, give a sense of a partisan eager to keep lawmakers and bureaucrats in line. For someone who has become known in both parties for a self-deprecating wit, Roberts could be blunt on paper, even dismissive.

See also the July 22 Washington Post article by Jo Becker and Amy Argetsinger, The Nominee As a Young Pragmatist

As an up-and-coming young lawyer in the White House counsel's office from 1982 to 1986, John G. Roberts Jr. weighed in on some of the most controversial issues facing the Reagan administration, balancing conservative ideology with a savvy political pragmatism and a confidence that belied his years.

In the perennial judicial-nominee questioning on Roe v Wade, Eric Umansky of Slate.com notes in his July 20 piece, Revealing Roberts

The Wall Street Journal describes the Harvard-trained Roberts as "affable, thoughtful and solidly Republican." But though he's been around Washington for two decades, it's hard to nail down his exact views since he's served on the bench for only two years. Before that, as an administration attorney he was obligated to take whatever positions the Oval Office handed down.
Some of the papers don't buy or consider that notion; USA Today's subhead, for example, screams that Roberts "argued Against Roe." But when asked about Roe v. Wade at his 2003 confirmation hearings, Roberts described it as the "settled law of the land." Of course, even that doesn't mean much; it could have just been a savvy statement of the obvious: As an appeals court judge he was bound by the Supreme Court's precedent.

In keeping with the borderline hagiography that sometimes passes for political analysis, the Chicago Tribune's Tim Jones, Andrew Zajac and Andrew Martin submitted on July 24 John Roberts' rule: Reach for the top with the subheading "Intellect, discipline, savvy have served nominee since youth", and writing

...Roberts is reserved, but not aloof; quiet, but not shy. He rarely volunteers information, and he keeps his personal views so close that his friends laugh that they don't know his opinions. He even plays squash with both hands, so his opponent never knows where the next shot might come from.

So if anything, the characterization of "savvy" is kind of like saying, "This guy is smarter than those around him, he can play them [since "savvy" is a term of admiration, it's "them", not "us" in this context], and he'll get what he wants." As a lawyer, savvy is key: rules like "Never ask a question you don't know the answer to" rest on such a mental faculty. As a judge, the supple mind of a long-time partisan lawyer may not be appropriate.

The apparently praiseworthy quality of the nominee appears to be rubbing off on the nominator...kind of. Bush gets credit for advancing a nominee who will be hard to beat. So that's what it's come to: not the best candidate for the job, just one who will be iron-clad--or, in this age, Teflon-coated. The fact that this longtime Washington lawyer has garnered respect from Democrats as well plays by one of the oldest tricks in the book: in time of war, divide in order to conquer. But it's not just the nominee--it's the timing (to detract from the Rove-Wilson-Plame circus), and the means (sending out a former Republican senator turned TV star to trade in onthe fame and popularity of his fictional character) that also get called "savvy".

Mark Bosworth of the Daily Iowan gets University of Iowa professors on record with Roberts a savvy choice, profs say (July 20; this story was also picked up by other news outlets)

Reacting to President Bush's nomination of federal appeals court Judge John Roberts to the Supreme Court, UI professors are calling the selection "a very savvy political choice.""Roberts is a man of amazing ability," said Stephanos Bibas, a UI associate professor of law and a former clerk for Justice Anthony Kennedy. Bibas feels that it is "extremely likely" that he will be confirmed. Nicholas Johnson, a lecturer at the UI law school, echoed his colleague. "I think it would be very difficult to prevent him being confirmed," said Johnson, who clerked for Justice Hugo Black.

An editorial in the July 21 Texarkana Gazette also goes right to the point:

Make no mistake here: Roberts is a solid Republican conservative and a politically savvy selection for President Bush. Roberts worked in both the Reagan and the first Bush administrations and in private practice argued 39 cases before the Supreme Court-mostly from a conservative legal standpoint. But supporters and opponents alike agree that, despite his credentials as a legal conservative, Roberts is no right-wing ideologue with a personal agenda to fulfill when and if he takes a seat on the country's highest court.

Court TV online (July 19) offered an opportunity to discuss the nomination of John Roberts with Ann Althouse, law professor at the University of Wisconsin at Madison:

Question from RachelC: Hi Ann. My husband and I discussed tonight that the timing of this nomination was to deflect attention from the Karl Rove issue. What are your feelings on that theory?
Ann Althouse: I think we can assume that Bush is politically savvy about the timing of things like this. I think a lot of Americans may be eager to hear some different news after so much attention to the Plame affair.

Dan Balz and Charles Lane of the Washington Post also characterize the nomination with A savvy choice to shift top court

President Bush moved boldly to shift the Supreme Court to the right Tuesday night by selecting U.S. Appeals Court Judge John G. Roberts Jr. to succeed Justice Sandra Day O'Connor. But in choosing a jurist with establishment credentials and bipartisan allies, Bush was also looking for a nominee who could still win confirmation with some Democratic votes.

Most to the point in terms of my concerns, this plaudit issued by Bill Schneider of the "CNN Political Unit", who, on July 22, crowned the nomination the "Political Play of the Week"

Some on the right, and many on the left, are suspicious of Roberts. But both sides may be forced to conclude, reluctantly, that Roberts is the best they're going to get. You can argue with Roberts' views. But there doesn't seem to be much argument over one point: that it was a politically savvy choice. And the Play of the Week.

Finally, the way that Peter Johnson of USA Today writes in "Bush takes media by the horns after days of trouble" shows the full sweep of the strategy employed for our political culture:

The White House dispatched former senator Fred Thompson, R-Tenn., to support Bush's choice on today's network morning shows. A savvy choice for those entertainment-oriented programs: Thompson stars on NBC's Law & Order.

Appointing a judge to sit for the next 30 years

2005-07-23T06:20:00.000-07:00

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

2005-07-23T06:08:00.000-07:00

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.

Balkanization on abortion -- a blog reflects the real world

2005-07-22T07:39:00.000-07:00

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.

What's conservative and what's controversial?

2005-07-21T04:22:00.000-07:00

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.

J.K. Rowling on Roberts and Other Controversial Nominees

2005-07-20T02:06:00.000-07:00

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."

John Roberts review: first observations

2005-07-19T22:14:00.000-07:00

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 Slate.com, 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

2005-07-19T18:39:00.000-07:00

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

My turn for predictions

2005-07-19T17:40:00.000-07:00

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

2005-07-19T17:24:00.000-07:00

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

2005-07-19T15:45:00.000-07:00

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.

Tags: Supreme Court, Edith Clement, Edith Jones, nominee

A woman to replace O'Connor

2005-07-19T06:46:00.000-07:00

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.

To Those Who would Use their Faith as a Cudgel against their Fellows

2005-07-14T23:14:00.000-07:00

Sorry for the moratorium; just got back into town. One quick poem before bed. You make your own sense out of it.

[....]
The Sea of Faith
Was once, too, at the full, and round earth's shore
Lay like the folds of a bright girdle furl'd.
But now I only hear
Its melancholy, long, withdrawing roar,
Retreating, to the breath
Of the night-wind, down the vast edges drear
And naked shingles of the world.

Ah, love, let us be true
To one another! for the world, which seems
To lie before us like a land of dreams,
So various, so beautiful, so new,
Hath really neither joy, nor love, nor light,

Nor certitude, nor peace, nor help for pain;
And we are here as on a darkling plain
Swept with confused alarms of struggle and flight,
Where ignorant armies clash by night.

The important question about any SCOTUS nominee

2005-07-11T05:53:00.000-07:00

I want to call your attention to this excellent post by Asheesh Siddique. He demonstrates how Democratic "litmus tests" like abortion, affirmative action, and gay rights distract from the real issue at stake: how the role of the government risks being fundamentally changed from what nearly all American think it should be. He frames much of his argument in terms of progressive political communications strategy, because he is writing for a progressive audience. But the merits of his argument should speak to any citizen, whatever their partisan affiliation. His brief history lesson also gives the lie to those who try to portray conservative schools of judicial theory, such as the "Constitution-in-exile" movement, as originalist. In fact, they are anything but.

A new Legal Framework for the War on Terror

2005-07-10T08:50:00.000-07:00

[Actually, a couple of months old. The below is just pasted from the website, where you can download the pdf of the full report.]

The major debates about balancing democratic freedoms with security - from the Patriot Act to recent Supreme Court decisions on detention powers to what constitutes torture - have provided very little guidance on long-term legal strategies necessary to confront ongoing national security threats. To address this deficiency, the National Memorial Institute for the Prevention of Terrorism and Harvard University's Kennedy School of Government and Law School convened a bi-partisan group of experts to consider the challenges ahead and how to design our laws to preserve both our security and our democratic way of life. The final report of the Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism includes analysis and specific legislative recommendations to deal with the thorniest - and most profound - legal challenges of this new era, including:
Is targeted killing ever acceptable? Against whom?
When can coercion be used in interrogation - and who decides?
After the Supreme Court cases, when is detention allowable? When should it be?
Should the government infiltrate religious and political groups?
What exactly do we mean by 'profiling'? When should it be allowed?
Should government collect bio-metric information to identify citizens?
What standards should the government use for using information on citizens from private databases?
The project was directed by Harvard Law Professor Phil Heymann and Juliette Kayyem of Harvard's Belfer Center for Science and International Affairs. The Project's Board of Advisors includes high-level security, military and legal experts.

Sunday roundup

2005-07-10T07:21:00.000-07:00

FindLaw on the rules of the nomination game for the Senate and the President.

What O'Connor meant (and didn't mean) for gay rights. She was certainly as crucial on this issue as she was on any other. And what she meant for women's opportunities on the bench; a lot.

Rabbis for religious and reproductive choice -- a perspective I had never considered.

Media Matters calls the Washington Post on its assumptions and confusions and then calls it on the difficulty it sometimes has understanding the text of its own story (on which also see my earlier post).

The ambivalence of Hispanics towards a potential Hispanic nominee.

The American Judicature Society on the irresponsible rhetoric that can come from too self-righteous an opposition to "judicial activism."

Ed Whelan of NRO's Bench Memos puts forth the interesting argument that a Justice Alberto Gonzales, because of his past employment, would have to recuse himself from a great number of important cases. It is interesting, but not necessarily right. Follow the links for the discussion.

The Washington Times has the principle right, I think, even if its application goes awry once it begins foaming at the partisan maw.

It's not as hard to be a reasonable Catholic as they make out

2005-07-09T04:21:00.000-07:00

I was a little distressed reading the sub-heading to this NYT article:

Cardinal Christoph Schönborn has suggested that Darwinian evolution might be incompatible with Catholic faith.

I thought I might have to title the post something about the Ghost of Galileo. But, no, it's all right. The Cardinal seems to endorse a version of intelligent design, but he does so because he misunderstands what evolution implies about God (Hint: nothing, one way or the other). Just having noted the 75th anniversary of the Scopes Monkey trial and knowing that a case about the teaching or not of evolution could make its way to a high court anytime now, I think it's good that people are pushing on this issue. As long as they push in the right places and end up making the proper distinctions. I think the grounds for any conflict between science and religion as such are entirely imagined. The only conflict is bad science vs. good science and bad religion vs. good religion. I am afraid the Cardinal instances a little of both of the first terms in the pairs.

Intelligent design is both bad science and bad religion. One can argue for purpose and design on at least two levels. The first level argues that the process of evolution was started, in some way, by God. God winds the watch, but after that it proceeds to tick forward in time on its own. Intelligent design is only one version of this argument. The argument as made by Michael Behe, a leading proponent, is that the theory of evolution cannot account for the biochemical complexity of the living cell. As I understand it (and don't assume that I do!), this organism is as far back as we can trace the process of natural selection. We can't say what it developed from; therefore, we can't say whether it developed from anything. But that's just an observation Behe makes. The second and more important part of his argument asserts that the cell is characterized by "irreducible complexity." In other words, each of the parts must be in place before it can work at all. Therefore, they must have been placed there already; the cell could not have evolved. The first claim is modest (though ineffective, as it depends on the coincidence that scientific research has not yet answered the question of where the cell comes from). The second claim is ambitious. Unfortunately, it's probably also wrong.

This presents a problem -- one might call it an irreducible problem -- for intelligent design, as it has been defined by Behe and his colleagues. By making irreducible complexity their lynchpin, they have argued themselves into a corner. But intelligent design is only one version of a broader argument and, as such, it's flaws don't present a problem for people who believe that God is responsible for creation. There is no reason not to assume a Prime Mover behind the entire process. The existence or non-existence of God, indeed simply the beginning of all things -- these are simply not questions for scientists any more than they are questions for mechanics, historians, or stockbrokers; and I don't know any scientist who has a problem with that. God is larger than science, and science lacks the tools to encompass those questions. Behe runs into difficulty precisely because he tries to shrink God. He makes God a matter of science and then makes poor scientific arguments. Bad religion, bad science.

Intelligent design -- again, as I understand it -- endorses the idea of evolution from the point of the living cell onwards. Cardinal Schönborn, on the other hand, appears to refute this idea, when he argues that

Evolution in the sense of common ancestry might be true, but evolution in the neo-Darwinian sense - an unguided, unplanned process of random variation and natural selection - is not.

But we need to be careful in defining and applying our terms. First, definition. 'Random' and 'unguided' are not good words -- reproductive success through natural selection is not random. Environmental pressures do push speciation in a certain direction. Biologists don't make claims about randomness on this level. The only claim they make about purpose on this level at all is a negative epistemological one: they can't demonstrate or, as scientists, know that the process is teleological -- that natural selection aims at a certain end. Which means simply that the process of natural selection is not itself endowed with intelligence. But that doesn't even address the possibility of positing an Intelligence somewhere in the system, much less rule it out. The search for a telos -- an end, a goal -- is not a scientific search. 'Teleology' came into usage through Aristotle, whom we regard as a philosopher, not a scientist. (The Cardinal, in fact, is thinking in terms of Aristotelian causality. Note his reference to "finality ... a philosophical term synonymous with final cause, purpose or design.")

Second, application. Let's get this right. While it is misleading to apply a word like 'random' to reproductive success per se, it might be appropriate to apply it to the process that enables differential reproductive success -- genetic mutation. I think biologists do assume that, within the limits of the system, mutation is random. Enzymes miscopy DNA nucleotides sometimes. As a result, offspring sometimes has DNA that its parents didn't have. This is mutation. Certain organisms are more prone to miscopying; certain kinds of miscopying (i.e., mutations) are more likely. This reduces the scope of the randomness, but it doesn't eliminate it. Biological sciences do not have an answer for why mutations happen at all or, I think, for why certain mutations happen, except to say that, well, they just do. I expect, as scientific research advances, we will actually be able to reduce the apparent randomness a lot more. And what if we can't reduce the randomness? What does randomness mean? It means precisely that we can't explain the process. Perhaps there is no answer, there is no process. But equally plausible -- or much more plausible, depending on your convictions -- is the idea that we ought to look to God for an explanation. We can posit a Prime Mover not just at the beginning of the universe but at the beginning of every instance of this process, as well.

With every question that scientists answer, they provoke new ones.

Yet all experience is an arch wherethrough
Gleams that untravell'd world whose margin fades
For ever and for ever when I move.

The ultimate questions recede at the same pace at which the scientific community seems to be progressing towards them. Why? Because they are on a different path; they can't be answered by the same query. (Please be aware that I am NOT suggesting that science is flawed as an enterprise or that its theories are inadequate to its claims -- as advocates of intelligent design incorrectly suggest with "irreducible complexity." I am making instead the simple point that, like any enterprise, science has its boundaries.) Is there a conflict between evolution and religious faith here? No. By the Prime-Mover argument, no part of natural selection is random, but nor is any claim made by the theory of evolution incorrect. Again, these are simply two sets of questions; scientists are only able to answer one of them, but they have answered that one quite well.

Nor does the Cardinal's argument, whatever he intends it to be doing, really oppose the theory of evolution. His express method is "the light of reason," not the scientific method. This is a more expansive tool capable of asking and (sometimes) answering questions scientists only think about in their off-time.

Dr. Kenneth Miller, a professor of biology and a Catholic says that

evolution "can fall within God's providential plan ... Science cannot rule it out. Science cannot speak on this."

The simple fact is that we need different frameworks for thinking about different questions. There is no contradiction between evolution and religious belief because they exist on different planes. Another way of stating this is to endorse philosophical pluralism. The Cardinal seems worried that scientists are making claims about God. That would indeed be strange; but they're not.

Francisco Ayala, a professor of biology at the University of California, Irvine, and a former Dominican priest ... said the cardinal seemed to be drawing a line between the theory of evolution and religious faith, and "seeing a conflict that does not exist."

The troubling aspect about this false controversy is not what science says about God; it is what those people who represent themselves as speaking for God say about science. We need good science, and we need people to respect and understand good science. There does need to be philosophical pluralism. We must allow each part of our society to pursue its own project according to its own rules; the production of the full knowledge of the world, ourselves, and what lies before and beyond us depends on a division of labor. I suspect the Cardinal doesn't sufficiently appreciate this.

There is a sad irony here. The Cardinal misunderstands what science is and what science does. He misunderstands its limits, its purpose, and the nature of its claims. Perhaps this is a willful misunderstanding, that he would perceive a contradiction where there is none. In any case, it is precisely this misunderstanding that causes him problems. Despite his bold claims about the inaccuracy of science, it is clear that he feels Catholic doctrine is threatened by scientific theories. There is no need for this insecurity; the insecurity itself does more damage to religion than a million Darwins on a million typewriters. The solution? He needs to understand science better. The better citizens understand the theory of evolution, the better they will be able to see that it presents no challenge to their religious convictions. To perceive a challenge gives science more credit for having the answers than it deserves, more credit than scientists themselves claim. One good reason to make sure people of faith really do learn science is so they can understand its limits as well as its contributions. The sadness comes when misunderstanding of science results in people trying to prevent science being taught in schools. That is the surest way to promote a conflict that doesn't exist and, in so doing, sow false doubt about both sides of the picture of reality.

I don't believe that this so-called conflict is really about knowledge or belief as such. It is about authority. The Cardinal intended to make clear above all that the church did not "acquiesce" to the theory of evolution. Despite the fact that no one is asking the Cardinal to give up anything he thinks about God, he clearly feels challenged. His op-ed piece, intentionally provocative, pushes back. When an evolution/intelligent design/creationism case reaches the courts next, it will not really be about knowledge or belief either. It will be about authority or recognition of personal identity. It will be about resentment and prejudice on both sides. It will be not about understanding the world, but misunderstanding each other.

UPDATE in the comments. I think it's going to be a long one.

Professors for the Judiciary

2005-07-08T09:22:00.000-07:00

Jack Balkin has an excellent post on O'Connor. It is not simply in starting out with Holmes that his argument is similar to Jon's from the other day on this blog.

Reading both pieces, you realize more urgently how the politics that surrounds our constitution needs to reflect the principles of that constitution.

UPDATE: Professor Balkin expands his argument in this op-ed

A new kind of Senator for a new kind of Nomination Process

2005-07-08T08:28:00.000-07:00

The New York Times observes that many of the Senators, preparing to participate in the confirmation hearings for a new Supreme Court Justice, have never had this experience before -- 56 out of 100, in fact. A lot of the arguments that we have treated on this blog recently -- how many, what kind of questions can Senators ask nominees -- depend on citing Senate tradition that many of the Senators and their aides lack. The Times' article is interesting, but I wonder if it is important. At least, there is something else that seems more important. Before deciding what arguments to make, Senators have to decide upon what they want their arguments to acheive. Ends dictate means. The goal of many Senators seems to be confrontation rather than compromise. Why is this? What the NYT raises about lack of experience points us toward a broader picture.

We have a lot of new Senators, yes. But, more important, we have a new breed of Senators. Many of the Senators recently elected regard the Senate in a different manner than did their predecessors. Two examples that come to mind are Rick Santorum (R-PA) and John Thune (R-SD). They feel less obligated to the institution as such. They feel closer to other members of their party, even in different branches of the government, than they do to their colleagues in the Senate. There has been partisan alliance since before there were parties, of course, but this new attitude is different -- different not just in degree but almost, it seems to me, in kind. Their willingness to employ the nuclear option, for example. Putting aside arguments for and against its legality, such an unprecedented attack on minority rights in the Senate would liquidate any comity or colleagiality in the Senate. It would destroy the culture of the Senate as (i) a deliberative body and (ii) a body that can work together to forge consensus. Right or wrong, the nuclear option does signal a new attitude towards the institution.

Part of this difference derives from the fact that, as recently-elected individuals, they have spent little time in the chamber with their colleagues. But part of it is because they represent a new kind of politician. The new politician differs from the old for reasons both new and even newer.

First, the change in transportation technology and in campaign finance allows Congresspeople to spend much more time in their home states, interacting with their constituents. This is a good thing, of course, by itself, all else being equal. But all else is never equal. Spending more time at home means spending less time with their colleagues in Washington. Less tennis games, less dinners, less interaction in the halls of the Hart Senate Building. As a result, Senators simply don't know each other as well as they used to. Lacking a thick or deep relationship, they find it harder to trust one another and easier to view each other as shallow caricatures or symbols, as ideological/partisan bogeymen. Political affiliations in Washington pressure members to regard those with opposing affiliations as enemies. The best way to resist this pressure is to get to know one another, become friends. This is a bulwark against unthinking and untrusting partisanship. This change began, I think, in the 60s and 70s. It has accelerated since then.

Yet more recent developments depend on the above conditions, but are the direct result of the more vicious partisanship that began in the mid 90s. It is easy to point to the Gingrich house and the Contract for America, which really does represent the beginning of this, but President Clinton has his fair share of responsibility too. Today's Senators are the children of that period. They were elected in on the basis of viciously partisan campaigns, during which they relied for votes on a distinct ideological bloc, itself divided deeply from ideological blocks represented by other voters. They were often elected, in fact, because of their expressed antipathy toward the Senate (or, more broadly, government). It should not be a surprise to find them antipathetic to their colleagues or to the Senate as an institution.

If this does become the most traumatic confirmation hearing in the history of confirmation hearings, the new kind of politician will bear a lot of responsibility for it.

Those Misers!

2005-07-08T00:59:00.000-07:00

We're selling a lifetime of jurisprudence and a seat on the Supreme Court for upwards of only a 100 million? Seems like a pittance. And a plunder.

A bit more on the future and character judgments

2005-07-07T18:52:00.000-07:00

Just to add a bit of my own thoughts onto Meredith's outstanding piece below, I think that emotional evaluations and character judgments based on personality of candidates is simply an absurd claim for anyone who calls themselves a lawyer to make. Besides, when did the Senate get to decide who the kool kids are and who aren't?

I understand that as either a prosecutor or defense attorney, playing the emotional or personality or character card makes winning easier because you move the jury away from the actual objective evidence to the more circumstantial and subjective 'evidence' that is personal judgments. It is that move that often creates the doubt in the jurors mind (which may explain how Michael Jackson got acquitted, but I digress).

As a judge, however, you should be held to a higher standard--one that doesn't only answer to the bar assocation or your personal ethics beliefs--but to the law itself. And when the Constitution tells Senators to "advice and consent" on nominees, your judicial philosophy and past jurisprudence are fair game. Moreover, when they ask you about precedent you have the obligation to tell them whether or not you support that precedent--and in turn the principle of stare decisis.

Oh, the indeterminacy of the future!

2005-07-07T17:07:00.000-07:00

My proverbial antennae are picking up a potential rhetorical trend in Republican-speak. As Chris posted below, the NY Times has Jeff Sessions (R-AL, and former boss of recently confirmed judge William Pryor, from their state attorney general days) pooh-poohing other senators' requests for detailed information about nominees. On what basis? "You cannot ask a judge to prejudge a specific matter."

This logic, such as it is, is reminiscent of the editorial written by Professor Gerald F. Uelmen of Santa Clara [CA] Law School, in support of Janice Rogers Brown's nomination to the federal appeals court, in which he also waves off those who would question Brown's track record as a reasonable indication of what kind of justice she would be: "...It's time to refocus the judicial confirmation process on the personal qualities of the candidates, rather than the 'hot button' issues of the past. We have no way of predicting where the hot buttons will be in years to come..." This editorial originally appeared in The Record, 8/9/2003 but it was also posted as the sole letter of support on the Department of Justice website devoted to Rogers Brown's nomination. (See my Monday, June 13 post, "Deliver us from rhetorical smokescreens" for more on Uelmen's piece)

Now, if these two were not people who had arguably "arrived" in their chosen careers, having gained public standing within their own communities, we might just dub them "masters of the obvious" and leave it at that. Unfortunately, this pat dismissal will not do, for we should all expect better argumentation than this from two lawyers. Yes, the future is indeterminate, by definition. However, that does not mean that it is completely detached from the past, either--can anyone seriously say that we have no idea what kind of cases the current Supreme Court will be asked to rule on, or that past judicial practice is a worthless indicator of future thinking? Nor should anyone actively dissuade people from engaging in enquiry about public matters this important by deriding the people's duly-elected Senators, those who think that investigation necessarily precedes "advice and consent", as Chris notes below.

The very idea of any Senator presuming to dispel concerns by simply waving his or her hands in front of the public's face and saying "Nothing to see here, folks, just move along into the wondrous and inscrutable mystery that we call THE FUTURE" is pretty disturbing, especially because it bespeaks their low opinion of the public and their discounting of our responsibility as citizens of a constitutional democracy to be informed, and to expect our elected representatives to hold federal nominees to a higher standard than just "Gee whiz, fellas, wontcha just take our word for it? He's a good man! (Or, She's a good woman!)"

In this case, I don't care about emotional valuations (what does "good" mean, exactly?), or if a person shared a cradle with a nominee. In fact, it might be better if s/he hadn't, because then the mind would not be clouded by the kind of sentimentality that naturally develops around friendships, but which is deadly for the integrity of governance. One of the heaviest burdens that a public servant has to carry is the responsibility to separate personal/private from professional/public relationships, and to be able to say "I'm sorry, but no" when a friend asks, explicitly or implicitly, to cross that line--and to recuse oneself when the conflict of interest is too great or risks setting propriety at nought. It takes incredible strength of character--it's no easy task, and the testing is constant. But that is part of why these public offices (and if they live up to it, the men and women who hold them) command respect: they demand a level of self-restraint in the use of power at one's disposal, in order to prevent corruption. It is up to us, the public, to see it done. (May I direct to the fracas in the House over the changes to the rules of the Ethics Committee--namely, that the Republican caucus decided to disable some key provisions and were publicly shamed into restoring them?)

If Democrats engage in the kind of reasoning that I perceive to be a common thread in both Sessions' and Uelmen's remarks, then shame on them, as well. In general, the kind of people who want trust (to go about business as they personally see fit) without the appropriate level of accountability tend to be oligarchs, not democrats--self-appointed aristocrats (since a democracy should have none who consider themselves the best with respect to power, which is what "aristo-crat" means) who shun the transparency that spurs questions. In our democracy, fortunately for us, certain kinds of safeguards with respect to transparency in government exist, and even aspiring oligarchs must make some gestures toward the public's right to be informed. But it is up to us to exercise it, because such rights fall into the "use it or lose it" category faster than you might think. For example, may I direct your attention back to a previous post on the enormous increase in executive privilege that Bush has built for himself and Cheney--with the aid of another nominee in the waiting pen, Brett Kavanaugh? (Tuesday, June 14: "Partisans and privilege")

Questioning the SCOTUS nominee

2005-07-07T15:48:00.000-07:00

I don't understand how Washington Republicans don't understand the 'advise and consent' clause in the United States Constitution. Evidently they don't think asking questions about ideology or judicial philosophy would be appropriate questions for potential life-time appointments of Supreme Court justices.

From the 4th's New York Times:

"But Senator Jeff Sessions, an Alabama Republican who sits on the Judiciary Committee as well, said the push for such detailed positions was highly objectionable and suggested that Democrats might be forming a strategy of trying to derail a nomination on the ground of withholding information.

"You cannot ask a judge to prejudge a specific matter," Mr. Sessions said. He pointed to other cases in which Democrats had raised objections to Bush administration nominees in part on the ground that information was being withheld, including the nomination of John R. Bolton to be ambassador to the United Nations. "If the Democrats are pushing that, then they are trying to create an issue," he said.

And Senator Orrin G. Hatch, Republican of Utah and former chairman of the Judiciary Committee, said in an interview: "Any member of the committee can ask whatever they want, no matter how stupid. But I don't think nominees have to answer certain questions. They don't have to answer questions about how they are going to vote in the future. They don't have to answer stupid questions. They don't have to answer argumentative cases."

Mr. Hatch said senators in past confirmation hearings had tried, with varying degrees of success, to divine the views of potential justices on critical cases facing the court. "But never has it been to the degree that Senator Schumer is suggesting," he said.

A senior White House official, who insisted on anonymity in discussing the early phases of the nomination, echoed Mr. Sessions and other Republicans on the Judiciary Committee, saying, "There has been a long-term standard that the appropriateness of questioning does not include asking judges to take specific sides or positions regarding cases they may hear one day.""

Look, the Senate has the duty to 'advise and consent.'

Interpret that as you may, it still involves questioning previous decisions, asking about your jurisprudence, and setting certain standards to consent on the nominee.

If the Washington Republicans were in the Democrats shoes, they'd want to do the same thing that we're doing. We don't want justices to be a surprise once they get to the bench--just like David Souter ended up being for Bush I. Just because they're in power doesn't mean they can circumvent decades of procedural tradition just to expedite their own power-grabbing desires.

And don't forget the Specter standard from his 2000 auto-biography:

"[T]he Senate should resist, if not refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues. In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate's philosophy, but should be able to judge on the basis of the candidate's expressed views."

It is obvious--any politician has the right to question the nominee.

And if anyone doesn't like it, they can get over it.

NB: The WaPo took on a similar article on Monday, but it is effectively shot down by Kevin Drum and MediaMatters. Essentially, just because one 'moderate' Washington Republican says that you can't question doesn't mean that you should listen to him.

Also, this was posted previous at my personal weblog, The Political Forecast.

The Scopes Trial

2005-07-07T13:53:00.000-07:00

We just celebrated (or not) the 75th anniversary of the Scopes Monkey Trial, argued by Clarence Darrow and William Jennings Bryan. The latter was one of the great American orators at the turn of the century (his "Cross of Gold" ranks among the greatest of political convention speeches). I thought it might be fun for people to read a transcript of some of the highlights of the trial. .

Stare decisis and maintaining balance on the Court

2005-07-07T06:42:00.000-07:00

On Monday, the Washington Post published a fascinating article detailing what they described as Associate Justice Anthony Kennedy's recent "move to the center" in the 2004 term of the United States Supreme Court.

Reporter Charles Lane writes:

"In three crucial cases this term, Kennedy, a 1988 appointee of President Ronald Reagan, defected from the five-member right-of-center bloc that Chief Justice William H. Rehnquist nominally leads.

Kennedy joined with the court's liberals to abolish the death penalty for juvenile offenders, to give local governments a green light to take private property for economic development and to endorse a broad theory of federal regulatory power that denied states the right to override a federal law against homegrown medical marijuana."

Because of the juvenile death penalty case and eminent domain case, Kennedy is now public enemy number one for right-wing judicial interest groups.

Now, it should come as no surprise to most Court followers and aficionados, like myself, that Kennedy is being classified as a Centrist. There is nothing new about that assignment. In my spring semester class on Supreme Courts and Elections at Drake University, my professor made sure to break down the court into distinct voting blocs.

On the Right, of course, were Scalia, Thomas, and Rehnquist. On the Left were Souter (appointed by Bush I), Ginsberg, Breyer, and Stevens. Some in the class immediately tried to call Kennedy a conservative judge and arguing with my professor. It seems he had run into this argument before. He pulled a packet out from his lectern, silenced the class, and read off a long list of cases where Kennedy either: 1) sided with the liberals on the Court; or 2) dissented from the majority (the Conservative bloc plus O'Connor and Souter) but would not agree with the dissent from other justices. O’Connor and Kennedy are always considered the swing votes. If you can get one of them to your side, then you’ve got a pretty good chance of winning.

That centrist nature comes from the pragmatic nature of the two judges. While they may be some of the most activist judges (when activist is defined in terms of overturning bills that Congress has passed), they hold a clear love and respect for the principle of stare decisis--let the decision stand.

In my mind, stare decisis must be the overarching legal principle that any potential nominee must adhere to--before ideology or anything else. A simple faith in the jurisprudence of your predecessors is something that any appointee to the Court should have. Overturning precedent must be justified clearly and flatly. Room for confusion must not be allowed.

As for the balance of the Court, I see O'Connor's position being securely squared away by an independent Justice Kennedy. One of the joys and reliefs of being a lifetime appointee is that you're no longer beholden to partisan interest groups the way most politicians today are.

Later today, I'll write about questioning the nominee and what defines "extraordinary circumstances."

Aristotle for a Consensus Nominee

2005-07-05T18:44:00.000-07:00

The great problem for the ancient Greek polis was stasis, civil conflict within a community. The great political thinkers made solving the problem of stasis one of their priorities -- Thucydides, Plato and, of course, Aristotle in the Politics and Ethics.

Aristotle (A.) concerned himself especially with distributive justice, the attempt to ensure that everyone in the community receive an equitable share. This is known as proportional equality; it dictates that each get social goods according to his social worth or contribution. A social good might be wealth, status, a vote, political office, or any number of other things; the kinds of social worth that justifies receipt of a social good might include wealth, noble birth, free-born/citizen status, or virtue (aretê). A.'s preference is for the last (which is why he also uses simply axia, 'worthiness', to denote virtue; they are synonymous). A. also thinks he has an answer to what virtue is, but he also recognizes that grounds for social worth are disputed between and among communities. In practical politics -- A.'s real concern -- social worth, as well as the morality that grounds it, is as much an ideological as a philosophical truth. That is to say, there is a true answer -- virtue -- but (a) it is hard to recognize virtue and (b) people will disagree about what it consists .

There are three causes for stasis.
1. A group's feeling that it is suffering injustice at the hands of others, either because institutional arrangements are unfair or because power is being abused within an otherwise equitable institutional framework.
2. The pursuit of gain (kerdos) or social esteem/political power ('honor', timê) or a desire to avoid loss of that material wealth or honor. A. means by this, mostly, that some people cause stasis by pursuing or attempting to keep these social goods in a measure that goes beyond their equitable claim to them.
3. A variety of different causes -- gain, honor, insulting arrogance (hubris), fear of one's political opponents, overweeing preeminence (huperokhê), etc. A. means by this that people react against a system that supports the unjust acquisition of social goods by others, even if they are not interested in claiming these goods for themselves.

The first cause is a very general one, but we need it to understand the second and third. A. believes that there is an objective standard for correct distribution, virtue, which we can use to measure people's worth and therefore their just dessert of social goods. But A. also knows people well enough to recognize that they tend to be self-interested and self-aggrandizing. In other words, their interpretation of their own just desserts tends to overstate what they are actually owed. As a result, people perceive injustice; they perceive that they are not getting their due, whether in terms of material gain, social esteem, or political power -- even when they actually do possess a fair share of social goods. When this happens, they will act to overthrow or alter the political system. That is, people who possess the power they need to acquire the goods they want will institute a particular set of political arrangements that will gratify their desire for money, honor, or power. To them, setting up such a system will seem just, because they will claim that they possess the relevant social worth, be it noble birth or (their idea of) virtue or any other. If they are able to acquire the disproportionate amount of social goods that they want, however, others will resent this fact and act themselves to overthrow the system. These others will claim that the standard of social worth the powerful use to justify their power is mistaken or it is insincere (i.e., propaganda). This is a real bind; stasis results from either circumstance.

The common element in the two situations is greed. The Greek word for this is pleonexia. In fact, it has a much broader meaning than simply 'greed'; it means, in an etymological sense, 'overreaching' or 'having too much,' and its object can be any of the social goods we have been referring to. Greed causes civil strife.

Aristotle, as it happens, is important to thinkers like the philosopher, Alisdair MacIntyre and the theologian, Stanley Hauerwas, who are the foremost critics of Rawlsian pluralist liberalism taught in seminaries in the United States. They trace from him an alternative way of talking about ethics and politics. Sometimes they focus on virtue (rather than moral problems, "quandry ethics"); sometimes they emphasize their belief that ethics and politics don't work unless embedded in a tradition (and they see in the universalizing impulse of liberalism the absence of such a tradition). As such, A. is important, at least genealogically, to Christian approaches to judicial rulings, which seek to ground moral decisions in an ideologically (or theologically) coherent community.

It is worthwhile, however, to read A. also for his warnings about what causes communities to fragment, and one can readily do this from an Augustinian (Christian) perspective. First, A. warns that one's conception of virtue may well be flawed; this accords well with the Christian humility that comes from the full knowledge of human imperfection as measured against the standard set by Christ. Second, Aristotle warns that overreaching based on any conception of virtue, when you do not have the consent of your fellow citizens, will prompt in them the alienation and resentment that results in civil strife, even civil war. This corresponds with the Christian conception of charity. (For an example of this logic applied to judicial controversy, see Bill Stuntz [hat tip: Jack Balkin].)

Many so-called secularists argue from or implicitly accept the principles of Rawlsian liberalism. This demands of them that they do not make public arguments without ascertaining general premises that can be accepted by their fellows. Their hope is that this should result in persuadability and consensus. Christian thinkers (rightly, in my view) reject the Rawlsian principle as limiting, even tyrannical. But some of their own most important philosophical forebears provide independent and compelling grounds for consensus.

We can see clearly the danger that the power now enjoyed by the Republican leadership will cause them, in their political greed, to overeach their proper social dues (stasis cause #2). So too the Democrats may demand too much out of a judicial nominee (#2) or rebel against what they perceive as oppressive Republican domination of the government (#3). Civil strife would result in any of these scenarios. The solution is to limit one's ambitions, avoid pleonexia. In choosing or responding to a judicial nominee, don't be greedy.

Citations.
For Aristotle's discussion of justice, including distributive justice, see the Nichomachean Ethics, book 5.
For his discussion of stasis, see the Politics, book 5.
Much of this analysis, some of it lifted word for word, comes from Ryan Balot, Greed and Injustice in Classical Athens (Princeton: Princeton University Press), 44ff.

Red, white, and blue--or imperial purple?

2005-07-05T14:41:00.000-07:00

Continuing on the theme of "color" that I see in the blog posts recently, we've caught another glimpse of the president blithely muddying the distinct red, white, and blue of the American flag into a royal purple. The occasion? Preemptive criticism of Alberto Gonzales as W's choice to replace O'Connor on the Supreme Court. I had mused in an earlier post on the rationale behind the strident defense of candidates for the appellate courts, which seemed tinged with the purple bruise of patronage--a black eye to the very tenets of a constitutional democracy that claims to provide equal protection and equal opportunity. And now, how does W defend Gonzales? According to a Q&A with USA Today, "Al Gonzales is a great friend of mine. I'm the kind of person, when a friend gets attacked, I don't like it. We're lucky to have him as the attorney general, and I'm lucky to have him as a friend."

Sounds reasonable enough--if the speaker were anyone BUT an elected public official! It's one thing for you or I to do a favor for a friend, so long as we wield no special power or influence within our national system of merit and punishment. The parallelism between the nation being fortunate to have such a public servant and W being fortunate to have someone as a private friend is also disturbing, as if there is little or no separation between the public and private worlds of George W Bush.

As a private citizen, it's all well and good to stick up for your personal friends, and to act on the implication that you'll do something to protect that friend, as s/he would you. However, it is wholly unreasonable for the president of the country to level such latent threats at those who would oppose "his friend" on other than personal charges. In fact, difficult as it may be, it is incumbent upon a president to check his own abuse of power and influence. The emperor Augustus--while trying to make Rome live under the public fiction that the Republic had been restored, when it was still under his effective personal rule-- found it necessary to stay out of court in order to not prejudice the jurors' decision, even and especially when the case involved a friend of his. Because Bush's message here is: "Back down, people, that's my private, personal friend you're talking about. Or else you're going to find out what I mean when I say 'I don't like it' when a friend of mine is attacked." Well, when you seek to enter the highest sphere of power, any candidate must be prepared to run the gauntlet of criticism, whether deserved or not (and 'deserved' according to whom?), because it is the right of any citizen in our democracy to speak freely. And if the criticism is total crap, then other people will ignore it.

If a candidate can't defend himself or weather the storm, then arguably he or she does not have a strong enough sense of self to hold the reins of power within a democracy, or any branch of its governing apparatus. Does Bush really want to create the image of Gonzales hiding behind the president's proverbial apron from those mean, mean critics and their words? Yeah, that'd make quite an image for a Supreme Court justice--especially if W's personal friend should ever be called upon to decide on a case of, say, executive privilege concerning, oh, say, the alleged manipulation of intelligence leading up to the war in Iraq, or Cheney's meetings with Enron over national energy policy, or even the recent allegations that it was Karl Rove who was behind the leaking of covert CIA agent Valerie Plame's name all along.

Color me slightly pleased

2005-07-05T09:34:00.000-07:00

Bush is defending Alberto Gonzalez from attacks from the far-right. Now, I think there have been real problems with Gonzalez's work in Texas and in the White House. Still, Gonzalez is still clearly a more thoughtful and moderate man than some of the people whose names are being bandied about.

Credit where credit is due.

Defining the Extraordinary

2005-07-05T05:08:00.000-07:00

The Memorandum of Understanding (MOU) that defined the filibuster compromise laid out this guideline for future judicial filibusters: "Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."

The filibuster compromise attempted to restore ordinariness to the Senate. But the fact that a compromise resulted only in the 'ordinary' indicates how far beyond the ordinary the situation had moved ('extra' is Latin for 'beyond'). In other words, the filibuster controversy demonstrates the process of shifting baselines, by which one side makes bolder and bolder claims for itself, and by the very extremity of those claims, succeeds in establishing a new and self-interested definition of what is normal. The Filibuster for Democracy group recognized this at the time of the compromise. Even while hailing it, we asked

That having been said, it is a strange sort of victory, isn't it? If you believe that Senator Frist's nuclear option would have been illegal and unprecedented - as we do, along with many constitutional scholars and political analysts - then the Republican leadership should not have considered it in the first place. Is it a victory when the world is returned to what it should be? Do we celebrate normalcy?

(This strategy is typical of much of the political logic employed under the tutelage of Karl Rove: it has become common for the right-wing punditry base of the Republican party, from Rush Limbaugh to Tony Perkins, to issue outrageous statements such as calling Justice O'Connor a traitor. The politicians, who represent these voices, can then disown the outrageous statements and appear moderate in contrast. The statements themselves, however, have already shifted expectations so far out of the norm that they leave room for the politicians to endorse still-extreme positions, which now look reasonable. That is, the unbelievable ideological wackiness of the right-wing base cause the standards for calling something extreme to rise dramatically.)

I would suggest that we are still far beyond the ordinary. I had written at the time of the compromise that the MOU

has shifted the grounds on which future similar controversies will be argued. The great problem with this controversy, as I said above, is that the baselines shifted to embrace the inconceivable, making the conceivable-yet-extreme look palatable, even normal. The great victory is that the compromise shifts the baselines back. It grants the essential legitimacy of the filibuster in the Senate. In the future, the debate will be about extraordinary circumstances, not the filibuster itself. That is, the debate will be about the controversial nominees. This is what the minority party wants. The compromise had to happen first, in order to reassert the proper field of discussion.

I assumed that at least the participating Senators would honor the compromise. I have reconsidered my position since, and it seems sadly naive. Senator Orrin Hatch (R-UT) for example, denied on Sunday that there could be "any circumstances where a filibuster would be appropriate." Any? Ever? At all? This is an extraordinary statement, and we should not let it shift our expectations away from what's properly normal. The very fact of this statement indicates just how extraordinary this confirmation situation is. People limit themselves overmuch in discussing the possibilities of defining extraordinary circumstances. Some Republicans argue that only an ethical or personal failure could constitute extraordinary circumstances (though this begs the question of why they think it appropriate to deny Democrats acess to FBI files on nominees). There is no room to consider ideological extremism extraordinary, they assert, even when personal ideology has profoundly affected a nominee's jurisprudence. That is ridiculous on its face. Why shouldn't we consider this extraordinary?

One argument might be that Janice Rogers Brown and Priscilla Owen were confirmed under the filibuster compromise. Both are ideological extremists, especially the former, and their decisions have reflected this. If anyone should be filibustered for ideological extremism, it is these two. Therefore, one could claim, that their confirmation to the Circuit courts has defined extraordinary in such a way as to rule out ideological inclinations entirely. Putting aside the fact that this argument in fact concedes their extremism, it should be clear that this was a practical decision on the part of the Democrat compromisers: they allowed through the nominees in order to secure the compromise in advance. I see no reason this should define the compromise in hindsight. This is another case of shifting baselines, in this instance moving so far to the right that ideological distinctions lose all meaning. Moreover, as Mark Scmitt argued,

If Bush appoints anyone other than Gonzalez, the nomination will be the product of a blatant litmus test on ideology. It would be outrageous for any Senator to refrain from asking questions about ideology, or opposing a nominee based on ideology, when the entire nomination is based on ideology. [I don't think Gonzales is the only nominee, who could fill the non-ideological criterion -- this is baseline-shifting in the other direction -- but the greater point is entirely correct -- Peter. Hat tip: the always politic Matt Langer.]

There are, in fact, good grounds, then, for defining extraordinary in such a way as to allow Senators to ask whether candidates' ideological commitments disqualify them from interpreting American law as part of an independent judiciary.

But I would like to point out another aspect of 'extraordinary circumstances,' which I believe has gone unremarked. The above definitions of extraordinary focus solely on the candidate in question. Can we not consider that the circumstances of the nomination process itself be extraordinary? Lyle Denniston of SCOTUSblog reminds us that

There has never been a Supreme Court opening amid the circumstances that now prevail in the Senate, where gridlock is almost a predictable development if a consensus nominee is not put forward. So, past experience with the nomination process, at least as it applies to the Supreme Court, may not be a reliable indicator of the conditions that may prevail as the process unfolds over the summer.

Remind yourself of what you have read in the newspapers over the last couple of weeks. This confirmation battle has the potential to be the most fierce and divisive such process ever. Ever. In American history. This is something that all politicians and activists, from all sides, agree on. Is that not extraordinary? This nomination will be for the Supreme Court (another difference between this process and the confirmation of, say, Owen to the 5th Circuit). The Supreme Court has especial importance simply because it is our high court. The fact that we will be replacing the moderate justice who provided the swing vote on several major statutory and constitutional decisions edges the importance farther toward the sky. But the real point: in this political and culture climate, what is especially important becomes also extraordinarily divisive. We know that one of the driving causes of contemporary division is the conviction, on both sides, that the country is engaged in a culture war; some are hyperbolically calling it a civil war. The judiciary plays a major role in deciding several questions, to whose answers both sides have fundamental and intractable commitments. (I think the metaphor of war is inaccurate and, worse, counterproductive, but I will follow it for the time being.) One of the major battlefields in this war is the arena in which (so-called) religion and (so-called) secularism clash. The Supreme Court itself in its 10 Commandments rulings lamented the consequences of the resulting bitterness and mistrust for civic culture. All the Justices seem to feel this is a major problem, even if they have different solutions to it. What makes the situation worse -- even more extraordinary -- is that the majority party, controlling both the legislature and the executive branch, considers itself beholden to one of the armies. I don't mean to suggest as part of my argument here that the Republicans ought not act to implement the commitments of these citizens. But the simple fact that they do can only further polarize the country, increasing the sense of resentment and persecution in each camp, solidifying mistrust of the other side. The nuclear option itself, which would be not only illegal but oh-so-destructive to the very culture that sustains the Senate, proves the extraordinary character of the present circumstances.

If the President does not put forward a consensus candidate, he will be doing so (a) in violation of the MOU's stipulation that the Constitution requires him to consult with the Senate in the act of choosing his nominee and (b) with clear knowledge that he will be widening and worsening the chasm that separates citizen from citizen, neighbor from neighbor, red state from blue. The President famously claimed that he wished to be a uniter, not a divider. To generate further division would, in these circumstances, be extraordinary indeed.

UPDATE: I wish also to draw your attention to Think Progress, which has a lot of very smart observations about consenus in this process.

Wheels within wheels

2005-07-04T09:40:00.000-07:00

A lot of people will have read Ed Kilgore over at TPM, who argues that the President will nominate a judge sought after by his social conservative, pro-life base. Say, Emilio Garza. They may not have read the astute nuancing of the political situation by Matt Langer, however. There's more to this political machine than Bush and Dobson, and factoring in the other levers, ropes, and pullies is a desideratum.

Also: always happy to see a progressive, who doesn't think reproductive rights is the alpha and omega of the policy world.

Senatorial Precedent

2005-07-04T07:13:00.000-07:00

The most important issue for the Senate right now is the argument between Republicans and Democrats about what should be considered proper behavior in evaluating a judicial nominee. Democrats argue, more or less, that Senators have the right to learn about a nominee's inclinations and commitments. An anonymous senior White House official interprets the Democrats' position more narrowly and argues, "There has been a long-term standard that the appropriateness of questioning does not include asking judges to take specific sides or positions regarding cases they may hear one day."

The parties are debating the extent of Senatorial power and the appropriateness of its use. The debate turns in part on how we understand the limits accepted and the powers claimed by the Senate in past confirmation hearings. Is the Republican tactic to limit Senatorial privilege self-serving or insincere, as I suggested yesterday about some of the rhetorical identity-politics played around female judicial nominees? Certainly the tactic is designed to bolster the strategy, designed in turn to make it possible for the President to appoint a judge with as little input from Democrats as possible: "shrink the target of attack on any nominee by limiting both the questions that may be posed and the time between the nomination and the hearings." But the fact that the argument serves political ends doesn't mean that it is not also fair.

How do we determine what constitutes appropriate review of the nominee? I have a few thoughts on the question.

1. Senators do have the right to filibuster a nominee, whom they determine is woefully inadequate for the seat. This right was accorded to them in the Memorandum of Understanding (MOU) that defined the filibuster compromise. The right to filibuster is therefore an explicit part of the tradition of Senatorial conduct. Orrin Hatch (R-UT) said that he could not see "any circumstances where a filibuster would be appropriate." In making this assertion, Senator Hatch is repudiating the MOU, which allows for the filibuster in extraordinary circumstances; he is repudiating the very tradition that his political allies seek to use to define Senatorial conduct. This is hypocritical.

The filibuster is to be used in extraordinary circumstances. How do we recognize extraordinary circumstances? It is not up to us. The Filibuster for Democracy group argued

It is the constitutional responsibility of each United States Senator to decide what constitutes extraordinary circumstances. The procedural mechanism of the filibuster is designed for extraordinary circumstances. If the circumstances are not extraordinary, the laws or nominees in question will be able to win the supermajority needed for cloture.

This is not to claim that the simple fact of a successful filibuster would define the circumstances as extraordinary after the fact. That would be unfair. It simply means that the filibuster is appropriate to extraordinary circumstances, and that each Senator must decide herself when it becomes proper to use the procedure. Anyone who denies outright the possibility of the filibuster fails to follow traditional and time-honored Senate conduct.

2. Any debate over Senatorial conduct should not obscure the President's responsibility to conduct himself in the appropriate fashion, as well. The MOU also made explicit that he should consult with the Senate in the act of choosing his nominee; this simply recognizes the advise and consent clause as it is written in Article II, Section 2 of the US Constitution. The headlines in all the papers indicate the extent to which the administration is keeping its selection process secret. If the President does not consult with the Senate -- and we should recall that President Clinton, in selecting his nominees, did -- then the Senate needs to be able to assert its constitutional authority by other means. An open and thorough examination of the nominee seems the proper way to do it.

3. There is something to the idea of precedent and understood rules of behavior -- how the Senate has conducted itself in past hearings should set general lines for its conduct now. That would provide a common understanding, a framework that allows political opponents to work together to do their job. But there is also something to disclosure and examination. Senate Democrats should restrain their inquiry, in my opinion, and literally asking a nominee to prejudge an issue would be inappropriate. In fact, it would be asking for an answer that only a judicial activist like Clarence Thomas could give, whose decisions stem not from the law but from personal conviction. A reasonable judge would want to consider the specifics of the case in question, what precedents bore on it, what scope the case suggested for a decision, etc. But, by the same logic, that line between what is appropriate and not has to be drawn in practice, during the hearings. To set general and theoretical limits on the advise and consent clause before knowing who the nominee is would be to prejudge a particular confirmation situation in exactly the same way.

This argument recalls another distinction that needs to be made clear. It would be inappropriate for a judge to decide how to rule before hearing the case, on which they would be ruling. It is not inappropriate, however, for the Senate to try to divine a judge's pre-legal, as it were, inclinations. This is a necessary part of advise and consent. If issues like abortion and gay marriage are hugely important to their constituents -- and they are -- Senators have a responsibility to find a judge whose decisions are not likely to be offensive to the citizenry. Judges and Senators play different roles in the process. The right of the Senate to develop a sense of the commitments of a nominee is a corollary of the separation of powers that distinguishes the responsibility of Senators and judges.

4. The final consideration is this: given the shadow the secrecy of the Bush administration casts over this process, it seems proper to err on the side of providing the Senate with more information. We need to right the balance in the general area of excecutive power. An independent judiciary seems like a good place to start.

UPDATE: Here's the WaPo on the potential effects of the filibuster compromise on the upcoming confirmation hearing. I think the headline is misleading. Look for the remarks by Senator's Nelson and Biden in the text of the article. I find them reasonable. The upshot is that an ideologically extreme nominee could be filibustered. What people are forgetting also is that, whether the filibuster is used appropriately or not, the nuclear option is simply an illegal remedy. (Am I allowed to update an update? Let's assume so, and let me point you to a well-balanced analysis by Steve Soto, which concludes that the Republican leadership lacks the political capital to implement the nuclear option. Hat tip: Matt Langer.)

UPDATE 2: I just re-read the NYT article I linked to above with the phrase"keeping its selection process secret." This is something I somehow, er, missed on the first skim:

Mr. Bush is to consult with a bipartisan group of senators about the Supreme Court vacancy at the White House on July 11, and Republicans said the president was unlikely to nominate someone in the first few days after that.

My bad. The President's good.

What do we want from the new O'Connor

2005-07-03T05:46:00.000-07:00

This article gives brief background summaries on some of the potential Court candidates, about whom you haven't heard as much. Not much information here, just something that allows you to add to your list. What strikes me most, however, is the logic of this section:

Unlike Rehnquist, a reliable member of the court's conservative wing, O'Connor was a swing vote, casting the deciding ballot in a large number of cases across a spectrum of issues including college admissions, abortion, prayer in schools and medical care by HMOs.

On many of these issues, O'Connor, who announced her retirement Friday, voted with the court's liberal wing.

Depending on whom he appoints, President Bush could give the court a firm shove to the right. At the same time, the president will be under pressure to acknowledge O'Connor's legacy as the first female justice and maintain a sense of gender or ethnic diversity with her replacement.

It is not as simple as just finding a good judge, who can sustain the professional progress of women that O'Connor has come to symbolize. Anyone who followed the debate in April and May over the Appelate Court appointments will be familiar with the rhetoric the Republican Leadership used to argue for such judges as Janice Rogers Brown and Priscilla Owen. The centrally-coordinated strategy was to stress their life histories and social identities. Brown, for example, has a truly inspiring story -- the daughter of an Alabama sharecropper, she would be the first black woman on the Supreme Court. That really is exciting. In contrast, however, those Senators, who opposed her appointment, expressed substantial doubts about her record on the bench. This side of the argument doesn't make nearly as a good a tv-movie, but it does speak more directly to the issues involved in selecting a judge.

The two types of arguments exist on entirely different planes and choosing a woman does not -- it hardly needs saying -- necessitate choosing a bad judge. O'Connors tenure demonstrates exactly that. But, of course, O'Connor was a good judge not because she was a woman but, in part, because she was a moderate. Her swing-voter role kept the Court from moving too far away, in general, from mainstream American expectations of what the judiciary should be, do and say. A far-right or far-left judge would have pushed the court towards extremism. It is certainly possible that President Bush will choose to replace the moderate O'Connor with a judge endorsed by right-wing extremists. Brown, for example,

is seen by some as a judicial activist, meaning she will stray from a strict interpretation of the Constitution to make a point. That could make her anathema to some conservative purists, who insist the job of a justice is to render decisions based on a close reading of the Constitution.

Similarly, Alberto Gonzales himself has found in Owen's record "an unconscionable act of judicial activism." This sort of nomination would give rise to the same rhetorical disengagement as characterized the appelate nominations. If, say, Owen or Brown were to be nominated for the SCOTUS seat, however, the right-wing talking points will certainly attempt to portray any objections to their candidacy as somehow discriminatory. They will ratchet up the rhetoric on this point in an attempt to make the issue heroic personal qualities and to obscure any straightforward evaluation of jurisprudence.

This tactic obviously just latches onto the nearest political selling point. The real reason Brown finds support in the Republican leadership is her radical feelings about the role of government in public life -- her opposition, for example, to zoning laws, on the grounds that putting a strip club next to an elementary school is only the correct interpretation of the scope of property rights. Owen finds support because she is seen as likely always to rule in favor of corporate privileges. That is, these nominees appeal to the Republican leadership for ideological reasons. Fair enough, but let's have that debate, rather than pretending people who object to judicial records on substantive grounds are simply sexists or racists.

In fact, it is ironic well past the point of hypocrisy for the Republican leadership to make this argument.

1. The right-wing base defiles O'Connor because they see her as a liberal. (It is ridiculous to claim that O'Connor is a liberal. The assertion shows just how extreme their political views can be and how far to the right the baselines have shifted. It is itself a symptom of the take-no-prisoners approach to ideological warfare that characterizes the dominant voice of the right-wing. Note also the use of the word 'traitor'.) The hypocrisy comes in evaluating one woman Justice on her ideology and evaluating another woman nominee on her personal story.

2. One of the issues on which right and left disagree most prominently is affirmative action. Opposition to affirmative action is one of the litmus tests that conservatives are likely to apply to judicial nominees. I heard a conservative commentator on the radio last night object to a Gonzales nomination because the Attorney General is "wrong on affirmative action." Yet Republicans are essentially adopting the rhetoric of affirmative action in arguing for some of these nominees. Whatever your position on affirmative action (and mine is ambivalent), this particular contextual dissonance should demonstrate the extent to which the rhetoric is self-serving and insincere.

More de la conversation, le good and le bad

2005-07-02T07:12:00.000-07:00

About the court. Some of it rather one-sided, however. Alas. The moral morlocks of our dystopia are starting to come out from underneath their moss. The crazies are coming out of the closet (no, not that closet; certainly not; perish the thought -- and then the homosexual, likely).

I reserve this flippant disapprobation for the guests at our common political party, who mistreat the host and spill drinks on the carpet. I have great respect, as I hope to have demonstrated, for the moral and ideological commitments of serious and thoughtful people, whether or not their commitments or the conclusions derived therefrom chime with my own. I have written as much about both gay marriage, abortion, and (I think) affirmative action. But there is a minimum standard for my respect. I expect to be treated with respect, as well, and I expect my fellow citizens to be shown the same courtesy. It is a procedural question, this respect, and a democracy needs it to work; it is the invitation you need to have to attend the party.

Let's look at some of the crashers, then.

This guy would definitely make your other guests uneasy. Too comfortable by far with the rhetoric of warfare. It comes too trippingly to his tongue. (Light of my life, fire of my loins. My sin, my soul. The tip of the tongue taking a trip of three steps down the palate to tap, at three, on the teeth. Screw. The. Court. [The other problem is that it is just too goshdurn easy to bait these fellows. Didn't everyone who passed through junior high school learn not to open yourself to being teased so readily?]) Of course, he does us the inadvertent service of speaking honestly about the consequences of the nuclear option. Half the Senate lying in smoldering ruins, their children weeping, their women sold into slavery. Senator Frist as not only Emperor Palpatine, but also Agamemnon.

Another thing about serious respectful conversation. One is obliged to consider sincerely the motives of those who disagree. Janice Rogers Brown should be nominated to replace O'Connor, argue some. Fair enough, though I disagree and want the Senate to have a conversation about that. This, however, is below-the-belt: her nomination to the DC circuit court was contentious only "because Democrats blocked her and other conservative nominees because they did not think the way people in their class (women, race, etc.) are supposed to think." Is that really the case? Here are some good reasons, mind-control notwithstanding, for worrying about a lifetime appointment for Brown to the highest court in the land. I hope you find the rhetoric of respectful and reasonable disagreement refreshing. Contrast it, if you will, with this continued dismissiveness:

To know why Judge Brown should be elevated to the Supreme Court one need only look to those groups that opposed her confirmation to the D.C. Court of Appeals: the AFL-CIO (labor unions hate people who believe people should work for a living and not have two hour lunches), Americans for Democratic Action, Americans United for Separation of Church and State (have to remove all the crosses on all the seals and before long in military cemeteries), the Congressional Black Caucus (they only like liberal blacks), Endangered Species Coalition (did Judge Brown want any species to become endangered? I don’t remember), the Feminist Majority, NAACP (see Congressional Black Caucus), National Urban League (see NAACP), Planned Parenthood Federation of America (yes to killing babies, no to black women on courts), Union for Reform Judaism (why confirm a black when you can eat all the pork you want?), and Amigos Bravos (any group that calls themselves friends of rivers should be ruled out as a serious opponents to a judicial nominee) – just to name a few.

Okay, some of that is pretty funny stuff; but, still, wrongheaded in its approach to conversation. And then: "Knowing who opposes a person is likely to give an idea about the reasons they do." That is actually backwards from what's correct. Fair evaluation of reasons comes from, well, evaluation of the reasons, not a pre-conceived notion of the person offering them. The writer here suggests we use prejudice as a tactic for understanding our interlocutors. That is a novel idea, certainly, but it doesn't seem to have worked very well in the past. The real shame is that, when the writer discusses the virtues of Janice Rogers Brown, he does so reasonably and responsibly. You might disagree but, when you read his evaluation of her, you think, well, this is a person I can talk to! It is when he talks about those who disagrees with that he becomes unreasonable. You want to talk -- you do -- until you realize that he is not interested in talking to you, you river-loving reprobate with your mud-bank muskrat motives.

Who do we want to invite to the party? There are some attractive guests out there, as well. Seem like they'd be good pictionary players.

Examine this press release from the (liberal-seeming) Congressional Hispanic Council and this from the (conservative-seeming) Project 21. It may very well be that you disagree with either of their standards for evaluating a potential justice. It may very well be that you mistrust their likely application of these standards. But do you also see how the way they expressed their views allows those who disagree with them to engage them, and even (theoretically, not necessarily actually) convince them that their views are wrong? Even if there is no convincing, if people talk to one another in the manner used by the CHCouncil or Project 21, there will be a chance to try again at the next disagreement. This also is a great piece, with methodological detail and historical perspective. I disagree with its conception of originalism, its thoughts on the place of originalism in constitutional interpretation, and the conclusions it draws from these starting points. But my reaction? I am excited to engage the argument -- there's some real substance to it -- and I plan to in the next couple of days. It makes me want to listen, to learn. I would buy the writer a beer in a second, if he had some time to chat. There can be no such engagement with the stridency shown by the pieces in the above paragraphs.

True Colors Showing with O'Connor Retirement

2005-07-01T12:24:00.000-07:00

While President Bush is saying he wants a dignified approach in the Senate to his upcoming judicial appointment, his closest allies are celebrating the retirement of a dignified Supreme Court Justice. Justice O'Connor, it seems, offended the conservative base by serving as a voice of reason. Notch this one up to the continual campaign to politicize everything. The role for swing votes on the Supreme Court is apparently gone. Non-wingers need not apply.

Replacing O'Connor

2005-07-01T10:26:00.000-07:00

People are speculating that the President will announce his nominee to fill O'Connor's seat on the Supreme Court within 2-3 days. Political calculus cuts both ways. On the one hand, a quick announcement would give the President and his allies the jump on the contest to frame the nominee (you can be sure that the White House will let at least some political action groups know who the candidate is before publicly announcing the name, and that none of those PACs will be progressive). On the other hand, announcing it too soon could give his political opponents the chance to really fill up the airwaves before any actual nomination hearing, making it more difficult for the President to push through a controversial nomination.

So. Will the nomination be controversial? The big difference between the Rehnquist retirement and the O'Connor retirement is that Rehnquist is a conservative and O'Connor is a moderate. In replacing Rehnquist with an extremist nominee, the President could do some damage, but he wouldn't really be changing the balance of the Court. O'Connor, however, has been the very definition of the swing vote. Replacing her with a right-wing extremist would substantially change the way the Court is likely to decide on several issues. (see Marty Lederman's list of precedents that would be jeopardized by such an appointment). Janice Rogers Brown is one such appalling possibility. Tom Goldstein thinks the President will go nuclear: nominate and force through as right-wing a nominee as possible.

There has been some substantial talk about Gonzales as a replacement, specifically, for O'Connor. He is viewed as a general moderate, likely to play a similar role on the Court to that which O'Connor has played. Here is the Supreme Court Nomination Blog's overview of Gonzales. We have also published a couple of posts on Gonzales as a nominee. The view from this blog is generally favorable, though in the first of the posts mentioned, I did express some real reservations about Gonzales' record on Executive privilege and civil rights in the context of the war on terror.

As always, SCOTUSblog and its talented sister, the Supreme Court Nomination blog are where you should go first to look for links and analysis.

Sandra Day O'Connor will resign

2005-07-01T08:03:00.000-07:00

Read the New York Times article here.

Our fight begins now, ladies and gentlemen. I'm going to begin preparing posts on each of the potential nominees from the possible shortlist.

I recommend that my fellow bloggers here do the same. Leave your thoughts on who you think the nominee should be and why.

I just hope and pray that the nominee is someone like Judge O'Connor--a moderate, pragmatic swing-voter. Somehow I have a bad feeling it will be a very conservative judge though.

Expect an announcement of a new nominee by next Tuesday or Wednesday.

Anthony Kennedy, "The Most Dangerous Man in America?" WWOWHS (What would Oliver Wendell Holmes Say"

2005-07-01T07:04:00.000-07:00

The impending Supreme Court nomination continues to be a partisan tinderbox. This past week, the Times offered an article here outlining many a conservative Republican’s qualms, if not outright enmity toward Supreme Court Justice Anthony Kennedy and the prospect of appointing another “Kennedyesque” jurist. I thought I would see if Oliver Wendell Holmes through his writing may have weighed in on the issue of Justice Kennedy, partisan politics in jurisprudence, democracy, and the Constitution. And he has, but first to the details.

The replacement nominee for Robert Bork, Kennedy was presumed by many on the right during his early years on the bench as an ideal replacement. However, when deciding controversial cases in the early nineties he disentangled his personal and political views from his jurisprudence, much to the dismay of many religious conservatives. In the words of Focus on the Family Founder, James Dobson, Kennedy is the “most here dangerous man in America,” Dobson’s remarks relatively innocuous in comparison to the disastrous calls for the impeachment of judges as well as the vile remark here made by a trustee on the Conservative here Caucus Foundation while attending a conference in D.C. when he parroted a thinly veiled deathhere threat, first uttered by Joseph Stalin, toward Justice Kennedy.

However it seems that the reason why many partisans on the right are savaging him, is precisely the reason why a jurist cut out from a similar fabric should be appointed for the looming vacancy. And I assert that from a purely non-partisan angle, shorn of any disagreement for their views. I am sympathetic to the importance so many bestow upon religion; but I robustly disagree because democratic aims should and must trump any partisan populist aims, as well as the need for limitation on role of religious influences in our statehood, which as my friend Peter, highlighted here is under a flagrant assault.

Oliver Wendell Holmes, the iconic Supreme Court jurist and eloquent writer, mused about the Constitution and our democracy, and would be appalled at the attempts to politicize the bench with nominees beyond the pale of consensus politics. He would laud Kennedy’s integrity and prudence rather than demonize and threaten. “But a constitution is not intended to embody a particular theory,” Holmes wrote, “It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question of whether statutes embodying them conflict with the Constitution of the United States.”*

In another opinion, Holmes was even more grandiloquent in writing about the essential nature of compromise in fostering democracy and the sobriety with which judges must approach the bench. “Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only relatively fundamental rules of rights, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus.”* For in a democracy, particularly today, everywhere always and by all, does not exist.

Holmes would abhor the baldly partisan attacks on not only the Supreme Court nomination but also would be adamantly opposed to any fringe jurist that could not be appointed by a consensus. He would applaud Justice Kennedy. And most importantly if Holmes were alive today, he would urge President Bush to appoint a consensual conservative to the bench, an appointment agreed upon by both sides of the aisle. Of course Holmes has since passed, but he lives on through his writing. Here’s to hoping that Bush listens.

*Excerpts taken from Law and Politics : Occassional Papers of Felix Frankfurter, 1913-1938, ed. Archibald MacLeish and E.F.Prichard Jr. (New York: Harcourt, Brace, and Co, 1939), 72, 75.

Gay marriage passing the ultimate test

2005-06-30T13:53:00.000-07:00

The Canadian House of Commons' vote to allow gay marriage deserves praise. Canada is a different country from the United States, of course, and in such a way that made this decision easy for them. I have argued before that the United States should withhold legal decisions on gay marriage until the cultural conflict has been better resolved. That it will be is suggested by what I have come to think of as the "Will and Grace syndrome." Homosexuality is rapidly being normalized. The most vocal opponents of gay marriage are often members of conservative religious communities, but even the children of such families, now reaching adulthood, find the prejudice troubling. According to the Economist,

The Catholic Church, which is still recovering from its paedophile scandal, is much less trenchant on gay marriage than it is about abortion. So are young evangelicals, who dislike any appearance of intolerance. The religious right is targeting them through groups like Teen Mania Ministries, but, as Mr Eskridge points out, even the students at his own Christian university “have grown up watching ‘The Simpsons'.”

Indeed, on this question, the Canadian public has undergone "a relatively swift turnabout of opinion over a period of several years." Readers should make sure to look at the very smart essay by Kenjo Yoshino of Yale Law School -- his observations about the 'banal register' speak very much to the Will and Grace Syndrome.

In this spirit, let me suggest that the most important stride forward for gays who want to be able to marry is the demonstration that gay marriage can be just as awfully tacky as straight marriage:

American couples have been wed [in Canada] since lower courts began to legalize same-sex marriages in some provinces in 2003. The marriage in Ottawa this month of a gay American couple from the popular television show "Amazing Race" is the latest high-profile example.

Ah, publicity; ah, Entertainment Weekly. Tom Cruise and Katie Holmes have nothing on this. All we need now is Elton John ranting at Matt Lauer,

No, you see. Here's the problem. You don't know the history of the legal grounds for gay marriage. I do. And Rehnquist doesn't understand the history of these legal grounds. He-- He doesn't understand in the same way that you don't understand it, Matt. Oh, Matt, Matt, Matt, if only you had my wisdom and professional expertise. I've done the research, gosh darn it, I've done the research. I'm passionate about learning. I'm passionate about life, Matt.

God bless America and its institutions -- marriage and reality TV, both -- and God bless its conviction that there is no such thing as bad publicity. May the pursuit of one's 15 minutes always be equal opportunity.*

On a related subject, you know -- do you not -- the intent behind the erection of the 1o Commandments monument in front of the Texas state capital, which SCOTUS just found to be constitutional? It was one of several monuments donated to cities and towns across the country in the 50s in order to promote Cecil DeMille's epic movie "The Ten Commandments." This promotion was not only constitutional, it speaks from the very heart of our great country. Surely no claim can be more persuasive than one based on "The Greatest Event in Motion Picture History" (tagline used then).

(*I have been trying to be funny the last couple of days. Must be coming down with something [Yes, a healthy skepticism for the future of the American judiciary -- ed.]. Just to draw a clear line between humor and reality: I know nothing of the Amazing Relationship and there is no reason the gay couple ought not get married -- unlike the case of Tom and Katie. Nor, certainly, am I suggesting that the arguments in favor of gay marriage have the merits of Dr. Cruise's argument to replace psychiatry with scientology. I am teasing the Amazing Relationship more for appearing on the TV show in the first place. Once you do that, pretty much everything you do afterwards, exactly to the extent that it is publicized, can't help but to be tacky.)

The Shrinking Senate

2005-06-29T19:04:00.000-07:00

TJ brings up a serious problem with the current confirmation process, that is actually most apparent in the case of John Bolton. The White House, in denying bi-partisan requests for documents related to the nominee, has effectively sent the message that it believes the Senate subordinate to the Executive. This was obscured in the recent filibuster fight by the partisanship of that battle, but was clearly present in the rhetoric of a "fair up or down vote," to which the President was supposedly entitled.

If you'll indulge a little bit of political analysis, I suspect that this behavior will lose its effectiveness as the 2006 elections draw near. The President's low approval ratings as well as his lame duck status should make it easier for Senators to assert their independence. Here's hoping, anyway!

The Question that Troubles by Its Absence

2005-06-29T15:29:00.000-07:00

Two of Peter's recent posts, "Judicial Wedge Issues" and "Conversation, from a Different Perspective," touch on an issue which I have found to be under-analyzed in various media outlets: This is the question of party unity in voting for or against judicial nominees. Regardless of whether a given person is for or against a particular nominee, it is striking that no one I ask about this issue takes it as a given that the Republicans will vote one way, and the Democrats another. As a Pennsylvanian, this point is annoyingly close to home: the pacification of Arlen Specter concerning Senatorial independence from the White House demonstrates that party unity is not a given, but the issue is not brought into focus or attention nearly enough. In some ways the more troubling corollary is that it was taken for granted that Specter, had he persisted in asserting independence, would have lost his Senatorial seat. The astonishing aspect of this, of course, is that who holds a Senatorial seat is not supposed to depend upon party decisions handed down from above. It is now taken for granted by many that such is the case.

The question of an independent judiciary therefore immediately collides with the question of an independent legislature. But we have become so used to rhetoric of separation and contrast that people pay no attention to the topic; we have grown used to bloc taxa ("the Religious Right," for instance). We need to figure out why, because otherwise it is precisely the few issues which will continue to decide (or be perceived to decide) votes over judicial nominees, both in Congress and in public opinion. As was the case with Specter, history demonstrates that this state of affairs was the product of deliberate action; this only makes the issue more pressing and worthy of public attention.

Evidence that we all want a fair and balanced judiciary

2005-06-29T06:54:00.000-07:00

Thanks to James Dobson, responding to the Supreme Court's decision in McCreary:

People in churches across America had better get busy and demand the right kind of appointments to this court. There is no bigger issue on the Christian agenda.

It would be funny, if it weren't so ... no, wait, it's plenty funny.

Innocence and Death, a Woody Allen absurdist film

2005-06-29T05:14:00.000-07:00

The Washington Post cuts to the chase:

The court has never quite said it is unconstitutional to execute an innocent person.

Is it just me, or is this a red flag?

The last of McCreary (he says now)

2005-06-28T23:58:00.000-07:00

This is my third post on McCreary. I would also like to state here for the record that I find quite weak the notion that the 10 Commandments can be displayed in a courthouse because of its important role in the development of American law. Many of the arguments that would allow such a display depend upon this assumption. (An important earlier decision, Lemon, declared that the government can evoke religion as long as it has a secular purpose in doing so.) Again, I could know my legal history much better, but I really don't think Moses' tablets had much at all to do with the foundation or development of American law. I think that the farthest possible reach into antiquity for such purposes is the Roman code, which I understand to have been the foundation for Western law in general. The 10 Commandments might have been used rhetorically in reflection upon American law; it might have served as a mythic reference, as a kind of a moral charter. But to make that important for the development of American law is precisely to elide the two fields of law and, say, ethics. Ethical thought can, with total legitimacy, be the product of religious traditions. But it is not law, and the relatively vast scope of ethics should caution us against trying to make it like law or law like it. The actual place of the 10 Commandments in American legal tradition depends on it having been filitered through a multitude of different thinkers, places, and times, until it was very much not the 10 Commandments, but rather, e.g., Locke's conception of natural law. Unless I am missing some big facts, any claim about the 10 Commandments being in any way historical precedent for American law reflects nothing more than a basic misunderstanding of how history works.

More on Scalia in McCreary

2005-06-28T21:42:00.000-07:00

For you legal eagle blog readers out there, this is old news. Jack Balkin posted his unease with Scalia's dissent in McCreary County v. ACLU on Monday. I would like to emphasive one of Professor Balkin's arguments and question another. Balkin writes that, according to Scalia's explicit logic,

If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us.

In fact, I think that disregard is integral to persecution. It may not itself constitute persecution, but it lays the groundwork; it enables persecution. Punishment of a class of citizens depends on the mental maneuver that separates them from us. Once the separation is made, persecution becomes plausible and, in some cases, because of the maneuver, even desirable. It was my impression that the Justices were supposed to guard against exactly this kind of slip towards such a treacherous slope.

But I disagree with Professor Balkin when he writes, in response to Justice Scalia's argument,

Why can't government support flow only to monotheistic religions? Because that would discriminate among religions, or between religion and non religion? Why then can government engage in such discrimination in its public symbolism? Is it because money is more important than symbols, or because symbols are more important than money?

My understanding of the context makes perfect sense of Scalia's distinction between funding religious groups and putting up the 10 Commandments. The Justice does not articulate a justification per se for his distinction, but his argument allows us to assume that one exists. His point is precisely that constitutional tradition assumes such a distinction. According to tradition and practice, it is in fact unconstitutional to fund religious groups in the way that Balkin alludes to. It is not, apparently, unconstitutional to invoke a Christian god on all sorts of benches in the public square. Though Justice Scalia's conclusions make me uneasy myself, and though I find some of his reasoning not only wrong but offensive, this is the one very important part of his claims that I don't quite know how to argue against. Justice Scalia notes the preponderance of Christian symbolism . He argues convincingly that the Establishment Clause gives us little guidance beyond vague prescription for religious freedom and that the clause is properly understood as having been defined in practice by various invocations by our government of the Christian diety:

Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto“IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.”

Now, I don't know my history well enough to know whether Scalia is prejudicing the facts in his favor. Other aspects of his dissent lead me to think that entirely possible. Indeed, Souter's opinion states that he has, even as it seems to accept his interpretive methodology. But let's assume Scalia is in fact correct. What then?

I am hard pressed to find a hard distinction between putting up the 10 Commandments in a courthouse and having that court open each and every session with an evocation of "God." What allows the latter but forbids the former? Justice Souter references the principle of neutrality in his opinion:

the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.

It seems to me that the principle, evenly applied, would also forbid the instances of religious evocation that Justice Scalia uses to make his case. Neither Souter nor Justice O'Connor in her concurrence give reasons to make the distinction.

My instinctive response, therefore, takes me in two opposite directions. Either we eliminate all of the instances of governmental evocation (and, inevitably, therefore, endorsement) of Christianity or we allow the government to take any symbolic stand which it wishes. I find the first much more palatable than the second, but neither is a good solution.

As in most difficult definitional questions, it is a matter of drawing a line. Scalia has his argument, but it can clearly be taken too far. The thing about Scalia's dissent that makes me uncomfortable is that he doesn't give any indication on where that line would be drawn. To take one example -- his irrelevant (and inaccurate*) claim that 98% of Americans worhip the through the same broad Judeo-Christian-Islamic religion tradition. So when do we reach a number too low to justify displaying the 10 Commandments in a court? Is it 90%? 70%? 51%? Clearly, our courts must draw the line somewhere, and Justice Scalia gives no indication of where even to sketch that line, in any of the several places where it needs drawing. One suspects that he is fatally uninterested in that question.

I think the court was right in drawing the line in such a way as to exclude the Kentucky courthouse display. But, if we had an entirely secular dollar bill, and some mint starting putting "In God We Trust" on it, I would also want the line to exclude that. In other words, I have no principle with which I can determine which non-neutral statement should be allowed and which shouldn't.

In sum, I share Justice Scalia's confusion about how much Christianity in public affairs is too much, but I do not agree with the conclusion he derives from that confusion.

*I have no idea where Justice Scalia gets this number. He doesn't tell us. I know for a fact, however, that well over 5% of Americans do not subscribe to any religious system, in either belief or practice. (I think the number is closer to 20% than 2.) Either Justice Scalia's numbers are flat wrong or he is assuming that a person's heritage -- what their ancestors might have believed or done -- makes them a follower in the faith of their ancestors, which assumption is flat wrong. In either case, the number can't do nearly the work that the Justice wants it to do.

Resignation anxiety

2005-06-28T13:19:00.000-07:00

Despite rumors that Chief Justice William Rehnquist would retire at the end of the Supreme Court's session, that date has come and gone without his departure. Now that we have entered yet another eye of the judicial storm, a moment of reflection on the implications of the non-retirement, and also of the rumor that advertised the non-event.

Two reasons for anxiety about any resignation from the Supreme Court are clear.

First, the question of who would be nominated, with the Democratic apprehension that it would be a divisive figure similar to the last ten of Bush's judicial nominees who are trudging through yet another Senate hearing. The Supreme Court is somewhat precariously balanced as it is, but then again, since Rehnquist is no flaming liberal, if he were to be replaced by another conservative, no great change in that balance.

The second reason, in the event that the nominee is not merely conservative (a perfectly valid ideological position to occupy in the absolute sense, if not appealing to me in all of its policy implications) but appears to be a partisan hack, or some kind of political client of the faction of the Republican Party that is holding the reins of power, or a former lobbyist for private industry--concerns I have about a number of the "Filibustered 10"--then we might be going back into the ring for another 10 rounds over the fate of the judicial filibuster. Sens. Reid and Frist have basically promised as much: Reid, asserting that of course the filibuster is fair game as a parliamentary tool in the future, including with respect to judicial nominees; Frist declaring that the speciously-named "constitutional option" (aka the "nuclear option") is still on the table. In all likelihood, this would prove highly unpalatable to the general public, who did not look too favorably on the last filibuster fight.

Another concern is less about the politics outside the court than the workings of the Supreme Court itself. The Chief Justice is not just a ceremonial position; the office also carries administrative responsibilities, and Rehnquist, whatever his ideology, is considered highly competent and even-handed by his colleagues. While the fight in Congress and among special-interest groups revolves mostly around certain hot-button issues that might advance or return to the Supreme Court should its composition change, the ability of the justices to act in a collegial manner and produce decisions efficiently is crucial. So any vacancy caused by Rehnquist raises two questions: one, who would become the ninth justice, and two, who would rise to become Chief Justice? A much more complicated puzzle, indeed.

But lastly, what of these rumors of Rehnquist's imminent retirement? As the court recessed, they seem to have been false. The Financial Times had quoted Sen. Arlen Specter, Chairman of the Judiciary Committee, observing that Rehnquist looked to him "remarkably fit". I ran a quick Google search and found that the source, although officially anonymous, was described as "very close to the Bush administration" on the 6/21/05 post on stopanncounter.com . CBS News "Judiciary Rumor Mill" also seemed to be following that tip (although every time I try to load the link, my browser quits, so please check it yourselves!). It's clear why the Bush admin would seem a credible source, if the resignation would be submitted to the president. But what does it mean when the source, if indeed close to the admin, had been giving out patently false information? Was it to spur Rehnquist to resign? To create news that did not exist--but to what end?

Scalia's America

2005-06-27T13:11:00.000-07:00

Needless to say, it is somewhat ridiculous for me to argue with the logic of a Supreme Court Justice. But, some might claim, these are ridiculous times: I can’t, for the life of me, make sense of some of Justice Scalia’s reasoning in his dissent (pdf) against the Court’s declaration that a Kentucky courthouse’s display of the 10 Commandments was unconstitutional. (I say this as someone who finds the majority ruling in Van Orden reasonable.)

When Scalia opines that “Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality,” he does not specify a certain kind of religion. [Clarification: this was part of his argument concerning the distinction b/n religion as religion and non-religion. It is more reasonable to say the government can endorse a worldview informed by the fact of religious faith. But he goes on to define that faith more narrowly, as monotheism.] Yet his opinion would elevate a particular religion, Christianity to the position of moral guide par excellence. He has no such argument pertaining to the social good, when he states that the government be allowed to endorse monotheism. His grounds, rather, are that a large proportion of the American population is monotheistic – 98%.

First, this is a specious argument for the case at hand. In contemporary society, precisely as a function of the cultural debate around religious monuments, erecting the 10 Commandments at a courthouse would be understood to be an endorsement of Christianity. We all know this; Justice Scalia’s willful blindness does not make it any less true. Moreover, the argument would remain specious even in a different political and cultural context. Muslims, as people of the book, accept the importance of Moses and the 10 Commandments, but it does not have the centrality for them that it does for Christians and Jews. Muslims also acknowledge Jesus as an important prophet. Does this mean that to erect a gigantic crucifixion scene in front of the Capital building would not indicate an official preference for Christianity over Islam?

Second, the religious convictions of the population will change. More or less people will practice religion. More or less people will worship the Christian God. Imagine that, in the next 100 years, as India and China grow more wealthy, increasing numbers of Indians and Chinese immigrate to the United States, even as the birth-rate for American Christians shrinks. Imagine that they are almost all Hindu or Buddhist. Both are entirely plausible suppositions. What of Justice Scalia’s 98% then? It seems to me that, the living constitution notwithstanding, Justices should interpret the 1^st Amendment in a somewhat less empirical manner with a somewhat less ephemeral result.

Third is most important. Were the government to endorse this view, it would delegitimize other religions as well as secular moralities. Justice Scalia’s 98% tries to cover this but it fails. Given the failing, we are left with the brutal and naked fact of a government invalidating by implication the religious beliefs of millions of its citizens. To my mind, this would clearly violate the intention of the founders that people be free and unobstructed in their practice of the religion that speaks to their convictions. The founders intended the 1^st Amendment to protect minority rights against the heavy convictions of the majority. The founders were, in fact, thinking of the minorities, who had come to the new world to escape religious persecution in Europe. Seen from this perspective, Justice Scalia's willingness to let a 98% majority rule over the 2% is not simply insufficient; it is egregiously offensive.

With respect to the third point, I find it troubling that Justice Scalia began his dissent with reference to 9/11. The reference was more or less gratuitous, but it was telling in that it is precisely the type of emotions stirred up by the terrorist attack that can, in unreflective times, lead to unjust oppression of minority populations. It is not inconceivable that Muslims qua Muslims could have become the target of government coercion, and with popular approval. The constitutional violations perpetrated at and by Guantánamo constitute precisely the sort of cruelty that follows on fear and anger. The prominence Justice Scalia assigns to 9/11 – popularly conceived as an attack from the Muslim world – in an opinion where he argues in favor of erecting symbols of Christianity in American courthouses suggests a fundamental insincerity in his use of his 98%.

The shortlist

2005-06-26T22:55:00.000-07:00

Slate.com offers in great detail the judicial histories of eight potential Supreme Court nominees to succeed the resigning (When? Maybe tomorrow or sometime this week?) Chief Justice William Rehnquist.

The 'Elite Eight', as some have begun to call those on the shortlist, are quite the group of judges.

First off, let's list all eight judges. (Current position in parentheses)

Michael J. Luttig (US Court of Appeals for the 4th Circuit)
John Roberts (US Court of Appeals for the DC Circuit)
Emilio Garza (US Court of Appeals for the 5th Circuit)
Michael McConnell (US Court of Appeals for the 10th Circuit)
Alberto Gonzales (Attorney General of the United States)
J. Harvie Wilkinson III (US Court of Appeals for the 4th Circuit)
Edith Brown Clement (US Court of Appeals for the 5th Circuit)
Samuel Alito (US Court of Appeals for the 3rd Circuit)

Of those on the list, I classify three of the judges as absolute "No" votes for nominees. They are John Roberts, J. Harvie Wilkinson III, and Samuel Alito.

Those classified as questionable or maybes are Michael J. Luttig, Emilio Garza, and Alberto Gonzales. I'm expecting outrage at listing Gonzales on my list of questionable/maybes. While his memos and judicial thinking on the issue of the Guantanamo detainees is quite disheartening, I think that his overall jurisprudence would outweigh the compelling interests he faced as White House counsel and as a member of the Bush Administration. Simply, as a Supreme Court Justice his job isn't on the line. His moderate rulings on abortion and affirmative action make him a qualified candidate simply because the balance of the Court would effectively stay the same.

Finally, only two judges are on my approval list. The first is Michael McConnell, long mentioned as the bipartisan candidate of choice with the support of many in liberal academia. Moreover, his independence has shown through in his jurisprudence possibly moreso than any other name on the shortlist.

The other judge is Edith Clement Wilson, the lone woman on the shortlist. Her rulings seem pragmatic and consistent with the principle of stare decisis. Moreover, the lack of controversial rulings or statements makes her immune to campaigns from interest groups on both sides of the political spectrum. Unfortunately, a conundrum still exists because we don't know the true entirety of her jurisprudence.

Now, this is all just preliminary speculation and reading on my part. This week will undoubtedly include a lot of reading on these potential nominees from sources on both sides of the aisle. Truly though, should Rehnquist resign America is destined for quite the divisive battle.

Nevertheless, a common approach exists and that is bipartisan compromise and shared negotiations. That was the way many Supreme Court nominations have proceeded in the past, and it is one that both People for the American Way and myself subscribe to.

Luttig and Roberts

2005-06-26T16:02:00.000-07:00

Here is a profile of two of the leading candidates for an open Supreme Court seat, J. Michael Luttig and John Roberts, Jr. I found this passage about Luttig particularly interesting, and wholly endorse the procedural principles articulated in it:

As a judge, Luttig is widely considered an ardent conservative, but his record reveals his independence, as do recent analyses of his opinions by several political scientists. He has stressed, to his law clerks and in a recent speech, intellectual honesty and adherence to precedent. He tells law clerks they will be fired if they fail to show him contradicting authority on a particular issue or tell him exactly how they view the case, even if they do not share his views. His clerks praise him as a teacher - and 40 of 42 have gone on to clerk at the Supreme Court, an unparalleled placement record.
Luttig has been highly critical of judicial activism on both sides of the ideological spectrum, in which he believes judges have decided cases based on a desired outcome instead of adhering to established law and taking that where it leads.

"At the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and is at the pleasure of no one," Luttig wrote in a 2001 case.

As a result of that approach, Luttig sometimes reaches decisions that cannot be called conservative. In one recent case, for example, he departed from conservative colleagues to find that some people convicted of serious crimes had a constitutional right to get DNA evidence if it could prove their innocence.

My one question: is it really "conservative" to deny a defendant right to exculpatory evidence?

A picture of the judicial left and of the values endorsed by power

2005-06-26T07:46:00.000-07:00

This may be interesting. It is a list of the members of the Coalition for a Fair and Balanced Judiciary. I provide it to show what sort of advocacy groups on the left are weighing in on judicial issues. It is not fully comprehensive, but my sense is, it's not far from comprehensive either. The one advocacy community perhaps under-represented, though certainly present, is the one dedicated to the virtues of judicial and democratic process, over and beyond questions of policy substance (we are one such group). My impression is that right now there tend to be more of these groups on the left than the right. The reason, I think, is that people, whose right-wing sympathies trump procedural concerns, are naturally happy to see the government endorse their perspectives, even when that comes at the cost of balance and the diminishingly fair representation of the full spectrum of political values of the American people.

A particular version of right-wing ideology has indeed come to dominate the government. People who endorse that ideology would be undermining what they hope to acheive, if they advocated in favor of democratic process over anti-democratic domination. When one ideological faction dominates government, it is to be expected that members of that community will support the domination. Certainly, if left wingnuts controlled all the branches of American government, their supporters would be silent on the problems that fact caused for American democracy. Indeed, the Heritage Foundation is quite capable of making principled stands on the importance of democratic process; only, it won't do so until those stands support its home team. This all is well illustrated by the filibuster controversy. This year Republicans have made specious constitutional arguments in favor of abolishing the filibuster. As little as five years ago, the Democrats wanted to abolish the filibuster and Republicans wanted to preserve it. The sole difference being, of course, that Clinton was president then and not Bush.

Conversation, from a different perspective

2005-06-26T07:23:00.000-07:00

The real problem with the political culture surrounding the judiciary isn't with the issues of substance or legislative policy, which judges rule on within the framework of constitutionality. Indeed, the real problem isn't with judges at all. The question of which judges and how different people hope they interpret the law is contentious, because the substantive issues provoke fundamental disagreement. But the real problem is the sort of conversation that these fundamental disagreements give rise to -- mean, dismissive, disrespectful, insulting discourse; you can't really call it conversation at all. The inclination to attack and dismiss rather than exchange and converse is the real problem because, as long as political advocates treat each other in such a fashion, the substantive disagreements will never be resolved; they will grow more intractable. Reverend Jerry Fallwell provides us an edifying example of the problem. This is a list of the words he uses in characterizing those he perceives as his enemies:

panic-stricken
frantically
whining
typical (i.e., "have, in typical fashion, attempted to rewrite history")
MTV generation
frenzied assault
agressively disrespectful (double-standard alert)
bitterly (double-standard alert)
angry rhetoric (double-standard alert)
empty and hysterical
radical
I often wonder how their supporters take them seriously

Needless to say, the Reverend made no attempt to find virtue or reasonableness in the positions or motives of those he disagrees with. I thought I would also find similarly unbalanced language -- but positive -- applied to those he perceives as his allies. Interestingly, I did not. This is itself a symptom of the disease: the Reverend Fallwell is much more interested in attacking and blaming the other side than he is in defending and praising his own side.

UPDATE: I forgot to mention this book I have been reading, Democracy and Tradition, by Jeffrey Stout, a professor of Religion. It speaks to precisely this problem of mutually productive conversation between people with different fundamental commitments. Described thus:

Asking how the citizens of modern democracy can reason with one another, this book carves out a controversial [not really] position between those who view religious voices as an anathema to democracy and those who believe democratic society is a moral wasteland because such voices are not heard. Drawing inspiration from Whitman, Dewey, and Ellison, Jeffrey Stout sketches the proper role of religious discourse in a democracy.

I would have said it is an attempt to resolve the contradiction between contractarian instincts (e.g., John Rawls) that we can't talk fairly without common premises and the easily observable fact that, well, tough, people do have different premises, this ain't gonna change, it oughtn't to change, and they still have to talk -- with particular reference to how this contradiction plays out when religious premises are part of a pluralistic, democratic conversation. It is smart, enlightening and, sometimes, inspiring.

Conversation

2005-06-25T22:20:00.000-07:00

If you have been reading this blog, you understand the high value we put on political conversation. In that spirit, I want to urge readers to comment on the posts. It would be fun and interesting, don't you think? I have a hard time imagining that our posts leave nothing to be said on the chosen subject. I know you have to register with Blogger to comment, which stinks. But just make up a name and the other information. I like to use Frank Hardy, of the Hardy Boys. We really are interested in hearing what you think.

I also wanted to thank SCOTUSblog for linking to us. It is no coincidence that there is some conversation going on under the post they linked to.

Judicial wedge issues, or the autonomy of the American conscience

2005-06-25T20:20:00.000-07:00

When the President addressed the Southern Baptist Convention and its 16 million members the other day, he promised them he would work to ban gay marriage and abortion. This is how the Economist starts its piece on "America's Religious Right". It then proceeds, without blinking, to discussion of the filibuster controversy and the expected battle over the Supreme Court nomination.

Why should we accept the assumption that the abortion and gay marriage are linked to judicial nominations? Why should we think that American evangelicals would prefer a extreme right-wing nominee to a more moderate choice? Indeed, why should we accept the over-used and under-theorized phrase "the religious right"? Why should we think that evangelicals, Catholics, or Orthodox Jews should necessarily be affiliated with one party? It does a disservice to these religious communities to pigeonhole them in this way and, as such, it is another signal of the disrespect with which many religious Americans feel treated by pundits and politicians alike.

Of course, the Economist is a smart rag. It is worth heeding the assumptions it makes. The majority of each of the religious communities I named did vote for Bush over Kerry. But so did a lot of other Americans, of all sorts of communities. The question for us here is, why would the religious communities in question support an extreme right-wing nominee of the President's? As the Economist points out: abortion and gay marriage. (Let me refer only to evangelicals and Catholics now, as those are the communities I know more about, being myself a member of one of them.) These are contentious and complicated issues, and proponents and opponents tend to reduce their complexities to single talking points. Gay marriage, for instance, is either about showing respect and humanity to admirable and loving homosexuals or it is about showing respect and reverence for traditional and proven conceptions of family and marriage. Both are laudable in themselves, but the opposing positions tend to pass one another like two ships in the night. The contradiction is more implied than argued for. But this is inevitable when people with very differently articulated (though, again, not necessarily contradictory) fundamental commitments attempt to have a conversation. I personally support the principle of gay marriage -- strongly -- but I also think that the country needs time to sort through its varied and complex feelings on the matter. It needs to discover the coherent and mutual assumptions on both sides and get used to the way they are expressed by the other side. In other words, it is not time for a court ruling on gay marriage. If the court were to strike down as unconstitutional one of the state bans recently passed (as I think it would have to, given the 14th amendment), that would serve only to drive both sides farther from mutual comprehension. It would be a shallow salve to a deepening wound and encourage the festering, not the forgiveness, of past offenses. Abortion is yet more intractable an issue and there is even more urgency for a committed conversation there.

I dispute the Economist's description of the political and cultural issues pressuring the judiciary not with a counter-description, but with a prescription. Let's not turn the judiciary into a gladitorial arena for combat to the political death. Let's talk some more before going to war; let's arrest the issues of contention. If we can do that, we can also set free individuals, whose religious commitments on abortion and marriage now compel them to make hard choices about whom to support. The Economist, deeper thinking than most of its peer publications, underscores the contradictory political commitments that can stem from coherent religious commitments.

This drive towards co-ordination [by the "religious right"] is complicated by an attempt to broaden the message to issues such as the environment (“creation care”) and poverty, both traditionally associated with the left. Many leaders are suspicious about cosying up to leftish types; others see it as a way of strengthening the coalition. So far, the main alliances with the left have been in the relatively safe field of foreign policy. Rick Warren, a preacher whose “Purpose Driven Life” has sold 20m copies, recently wrote to Mr Bush urging him to cancel the debts of poorer countries, and the religious right joined up with black Democrats to pass the Sudan Peace Act in 2002.

In fact, an evangelical is just as hard to define as any other thinking, conscience-driven individual. Let's structure political debate in such a way that members of religious communities are allowed to define themselves, in their own terms. There is a lot of room for thinking and conscience-driven people of all religious inclinations to find a judiciary that they can trust and respect.

For your pleasure and edification

2005-06-25T14:14:00.000-07:00

Interesting book review by Anthony Lewis in NYRB -- Speaking Freely: Trials of the First Amendment. It starts with a nice reminder about the living character of the constitution (cf. "judicial activism") and, along the way, gives just due to the potential importance of dissenting opinions on the Supreme Court (cf. O'Connor on Kelo?).

Students for the Judiciary

2005-06-24T10:56:00.000-07:00

Hurtling Towards 'Victory'

Opening salvos, war chests, savage battles, and total warfare. The nuclear option, Armageddon, armistice, cease fires, truces, and treaties. In the current Americanist political temper, the politics of democracy have devolved to zero sum political warfare, and military metaphors such as the above litter the print world and unfortunately accurately encapsulate the current terms of the Supreme Court nomination debate. Both sides have ratcheted up strategies, funding, and organizing efforts, and are poised for the day when President Bush submits a Supreme Court nominee to the Senate. Such activism and resolve are to be commended, and indeed are essential to the sound maintenance of a democracy. More disconcerting and more detestable, however, are the means by which certain groups are pursuing their goals, means that are hurtling them beyond the pale of our democracy and democratic principles as they pursue their 'victories.' And such means to a 'victory' should be abhorred by all, irregardless of political stripe for they represent an affront to the principles our society is based upon.

Both sides to date have continued to express an unwillingness to compromise on nominees. Although developments between Senate Democrats and the Bush White House Press Secretary Scott McClellan, yesterday suggest at least an acknowledgement of the need for consultation, President Bush has still left unanswered the letter drafted by 43 Democrats and one independent, James Jeffords. Regardless of this public avowal, which one certainly hopes will reflect the ensuing debate so a consensual conservative can be appointed, the rhetoric of aides, lawyers, and lobbyist involved in behind the scenes maneuvering and planning suggest that patent and uncompromising partisans, limited debate, and democratic malfeasance, all of which eclipse our democractic principles, are more likely to set the tenor for the nominations to come. In the vein of such acrimonious and uncompromising sentiments, M. Edward Whelan III, President of a highly influential public policy organization and former clerk for current Supreme Court Justice Antonin Scalia, remarked to an AP writer, "If you're ready to compromise, you're probably going to end up with someone pretty bad." Good for democracy, bad for partisan interests advocated by Whelan and those of a similar ilk.

As Bush is strategically moving forward in naming a judicial nominee, White House officials have publicly stated that they are pondering two tactics for naming a nominee, neither moving significantly the terms of debate beyond the sentiments voiced by Whelan. One White House strategy seems dangerously subversive to democracy and a blatant affront to such principles, while the other seeks to frame democrats as obstructionist, both tactics illustrating the apparent unwillingness of the Administration to engage in a principled debate over potential jurists; but the former seems most reprehensible. This tactic, according to Jesse J. Holland, AP writer, "favors a quick pick," and then "Senate Rupublicans push for a quick vote." Such a maneuver seeks to subvert democracy by limiting debate and baldly outstripping the minority party's ability to vet any potential nominee. And moreover, suggests that any advise and consent on the part of the senate minority party, is nothing but mere platitudinal rhetoric.

Critical thought, thoroughness, and vigorous debate seem in today's political climate limited, lest such proceedings foil a potential nomination. This seemingly is at least something that hinders the case of J. Michael Luttig, a jurist on the fourth Circuit court based out of Richmond. Luttig has an extensive record compiled over his fourteen year service. And rather than suggesting that such extensive experience prove as a worthy characteristic of a Supreme Court nominee, it has proven to be a fundamental drawback. Such experience according to Peter Baker, another AP writer provides not potential merit as a jurist to serve on the Supreme Court, but rather "ammunition." Fodder for the war.

When facts prove nothing but 'ammunition,' for debate, it seems only a small degree of ideological slippage to when we begin to disavow the necessity of debate. If debate is viewed as patently partisan, acrimonious, and nothing but petty squabbling, it calls into question the merits of debate itself. What is the point of debate some might begin to ask if merit and non-partisanry are cast aside and all rhetoric and arguments of the debate are viewed as tendentious, purely subjective? There is no exchange of ideas taking place. I've gotten a bit sidetracked, but debate and critical analysis should never be viewed as inimical to a democratic society. And one is not being a hack to assert that such sentiments are at least being undermined in the current political climate, a fact which should unnerve us all as Americans. When the importance of debate is waning, then the same can be said of democratic institutions.

What extensive debate, critical analysis, and thorough vetting of nominations at the present moment do seem to prove inimical towards is the pursuit of partisan populist interests at the expense of democractic interests. We as a democratic society should embrace debate, not seek to subvert and limit it. We should acknowledge and incorporate the voices of the minority party and the constituents that they represent for America is a democratic society, not populist one. We, as Americans, who embrace democracy should then hope that the President as well as Senators on both sides of the aisle, maintain a transcedent vision of democracy, placing the ideals of America beyond the reach of immediate partisan ones, and conduct the nomination and debate, with prudence, integrity, and forthrightness, for we deserve nothing less. And 'victories' that can be attained with out these qualities, are truly pyrrhic ones and victories which no American should what to claim.

Shrinking Political Capital

2005-06-23T09:59:00.000-07:00

Steve Clemons of the Washington Note has been doing a bang-up job following the Bolton nomination. His post this morning details the increasingly bi-partisan feeling in the Senate that the Bush administration should make available the documents, which Sens. Biden, Boxer, and Dodd have requested from the White House. All this implies something bigger -- and something interesting for anyone following the fortunes of the judiciary.

On the one hand, the inflexibility of the administration bodes poorly for any debate over the suitability of a judicial nominee. If the President likes the nominee -- as his supporters are proud to point out -- he will stick with the nominee. By the same token, the stubborness suggests that President Bush is unlikely to take into account the explicit instructions in the Memorandum of Understanding, which resulted from the filibuster compromise: that he choose nominees in full consultation with the Senate, rather than picking them on his own and simply presenting them to the deliberative house for approval (a problem Chris treats below).

On the other hand, the Bolton nomination troubles indicate that the President may have more difficulty "going it alone" with his judicial nominees than he might anticipate. First, because of the filibuster controversy, the Bolton controversy, and the very controversial character of Supreme Court appointments, whatever nominee the President selects will not only be subject to a high degree of Senatorial scrutiny but will also be the object of great attention from the public at large. Second, many Republican Senators are simply tired of the President's mode of operation. The Republican half of gang of 14, which forged the filibuster compromise, those Senators who now call upon the President to let the Senate perform its constitutional duties -- these officials are adamant about doing what they were elected to do. They are also sick of the divisiveness of this administration. It is impossible to predict, of course, but the signs point to a strong centrist body in the Senate, who will find it unreasonable if the President nominates an extreme or unqualified person for the Supreme Court.

Things tend to work in cycles or, if you prefer, on the motion of a pendulum. The President has pushed the public confidence he won in the aftermath of 9/11 too far; he has absorbed too much power into the White House. The Senate is asserting itself and the pendulum is swinging back to the center.

New Chief Justice speculation and a strategy for confronting a nomination

2005-06-23T09:35:00.000-07:00

Today's Christian Science Monitor has a great article on the readying battle over Chief Justice William Rehnquist's seat on the United States' highest court.

According to CSM, the announcement that he is resigning could come as early as next week. Others speculate that it won't happen this term, he'll do it next term. Essentially, no one knows what Rehnquist's plans are--not even President Bush.

Instead of speculating on possible nominees, I think it is worthwhile to look at the PR battle that will emerge when a potential nominee is being considered, when he or she actually becomes a nominee, and how Democrats should fight this battle.

Here is how the CSM defines the structure of the PR battle:

"The public can expect a two-phase PR blitz, first when a justice announces retirement, then when the White House nominates a replacement. The gap may be a matter of minutes, a few days, or even a few months, depending on White House strategy."

Now, I know there are hundreds of files floating around liberal and conservative groups on the pros and cons of each potential candidate, so the minute after the announcement is made, we'll be seeing massive emails sent out from activist groups to members and the pundits from every imaginable perspective will be on TV.

How should be approach a candidate that doesn't really appreciate his or her place in the judiciary? Well, first of all, President Bush, at least in this second term, has been especially inept at defining an adequate frame for his nominees--judicial or otherwise (such as the Bolton nomination). What we should do is quickly obliterate any framing the White House may try and create. Unleashing our strong opposition at full force is a critical step--at least for a Supreme Court nomination.

Second, if the candidate is chosen without bipartisan consultation, we need to stress that for as much as President Bush spews the rhetoric of compromise and bipartisanship, his negotiation and communication skills with the opposition are non-existent.

Finally, for any Washington insider who thinks the Democrats should offer an alternative nominee, that is just ridiculous. We should have a list for the consultation--should it happen--but if we don't like a nominee, we shouldn't have to give other names we'd find more acceptable. Why? Because at that point we start giving up positional footing to the Washington Republicans.

Nevertheless, we shouldn't be caught up entirely in strategic details. This is most likely going to be a challenging and tough battle, but one I believe we can win.

One important consideration is Sen. Majority Leader Bill Frist and his ability to bring back the Nuclear Option. I'll talk more about how to confront that in a post later today.

The Growing Imbalance between Freedom and Security

2005-06-22T13:21:00.000-07:00

In my last post, I wondered whether Alberto Gonzales' poor, poor record on safeguarding American liberties and freedom would make him a worse Supreme Court Justice than some of the other possible nominees of President Bush. I wasn't able to answer that question for myself.

I might have seemed to be begging another question, however. Isn't it necessary to compromise freedom for the sake of security? No. Absolutely not. This is a false tradeoff, and the assumption that security and freedom are mutually exclusive is a dangerous one. Indeed, our goal in defending ourselves against terrorists is precisely to ensure our way of life, our liberty, and our pursuit of happiness.

Make no mistake: the security debate itself, such as it is, does much harm and little good. A very important piece in the Washington Post demonstrates this beyond any reasonable doubt. (It is the first in a series you can reach through links alongside the article.) It concludes that for all the damage done to American freedoms, the administration has made very little progress in protecting us against terrorism.

The numbers are revealing.

President Bush, with Alberto Gonzales by his side, claimed that "federal terrorism investigations have resulted in charges against more than 400 suspects, and more than half of those charged have been convicted."

The Post demonstrates that this claim is not only misleading, but flat-out untrue. Of the 400 claimed by the President:

* 39 people were convicted of crimes related to terrorism or national security
* Only 14 people convicted of terrorism-related crimes have links to Al Qaeda.
* The rest of the purported "200" were convicted of relatively minor crimes, which had nothing to do with terrorism, such as making false statements and violating immigration law
* Among all the people charged as a result of terrorism probes in the three years since Sept. 11, 180 showed no connection whatsoever to terrorism or terrorist groups.
* For the entire list of convictions, the median sentence was just 11 months.
* 10% of the list of convictions claimed by the administration is made up by 20 Iraqi truck drivers who were publically absolved of any connection to terrorism in 2001, four years ago.

These numbers do not include the people held at Guantanamo Bay or at secret locations around the world. Nor do they include many of the approximately 50 people the Justice Department has acknowledged detaining as "material witnesses." It is clear that the great majority of these people, detained and many of them tortured, have as little connection to terrorism as the President's 400.

Here are two examples of convictions the President includes as part of his claims that his administration is effectively stopping terrorists:

* Hassan Nasrallah, from Dearborn, Mich., was arrested because of a false tip and because he has the same name as the leader of Hezbollah. He was convicted of minor credit-card fraud.
* Francois Guagni, a French national, was arrested because he illegally crossed the Canadian border with box cutters in his possession. He uses the tools in his job as a drywall installer. He pleaded guilty to unlawfully entering the country.

These numbers mean one of two things.
1. The Administration's attempt to locate sleeper terrorists is fundamentally flawed; it has failed to uncover the threats that exist on U.S. soil
2. There is very little threat to the United States from sleeper terrorists in the first place.
The second is far more likely.

The consequences, however, of the over-eagerness to investigate, arrest, and detain people with no connections whatsoever to terrorism are frightening. Detentions, interrogations, infringements on civil liberties, substantial damage to the lives of innocent people rise much much faster than any progress towards greater security.

The conclusion: there is no balance. Faux security is destroying true freedom.

Gonzales as a Justice

2005-06-22T12:03:00.000-07:00

Alberto Gonzales does not appear one of the two or three most likely candidates to become the next Supreme Court nominee, but he is creeping up there pretty quick. He features prominently in the most recent analysis of nomination scenarios, from Jan Crawford Greenburg of the Chicago Tribune (hat tip: SCOTUS nomination blog).

Gonzales raises a hard question. One the one hand, he is likely to be the most acceptable of the potential candidates to Democrats, because of his liberal to moderate stances on abortion and affirmative action. It would be a relief to see an easy confirmation, on which Republicans and Democrats were able to find consensus. Moreover, for the same reasons he would be confirmed with relative ease, we can be confident that his legal views respect mainstream American opinion. On the other hand, Gonzales infamously wrote the memo justifying torture of (innocent) detainees. He has also acted to shield the executive branch from scrutiny in general. Both of these stances represent a real danger to our democracy.

There would be a symbolic problem, of course, with putting a man with that record on the Supreme Court. But the real problem is very much a substantial one. It strikes me that the most important future cases on both the questions of rights and the question of the prerogatives of the government will arise from security concerns. We will not eliminate international terrorism during the course of his tenure, and we will never be able to be 100% sure that there is not a potential bomber hiding somewhere in, say, Missouri. That means there will always be pressure to restrict liberties and to expand the government's reach into the lives of its citizens; there will always be those who want to abandon the US Constitution. Gonzales should be expected in general to side with government power over individual rights and democratic transparency/accountability in this legal arena as well as others.

How should we respond, if he is nominated? It seems to me to be a question of weighing his generally reasonable approach to the law -- how much good would this do, relative to another potential judge who would take much more extreme and harmful positions? -- against the harm he would do if given the chance to infringe upon constitutional liberties in the context of the security debate. I do not know enough about Gonzales' positions on other isses to answer this question.

(I personally do not find abortion and affirmative action to be nearly as clear-cut as many progressives do. I do find his attitude towards mandatory sentencing disturbing and counter-productive in exactly that way that people who put rhetorical morality over practical solutions to real problems can be.)

What would an "imperial presidency" be without patronage?

2005-06-21T18:49:00.000-07:00

I've been hearing this phrase "imperial presidency" bandied about with respect to the current administration to evoke its non-democratic behavior. Some might take offense at this label, but I thought I'd consider whether this is anything but the kind of everyday backbiting that goes on in heated partisan debate. A free and independent judiciary is a necessary part of a healthy democracy because it is the branch that arbitrates disputes between all parties, from the individual to branches of government themselves.

One feature of non-democratic societies is that those who are not already in the inner circle of power (the aristocracy or oligarchy) must rely upon the beneficence of an insider to advance in his or her career. Nepotism is a similar circumstance: one candidate receives unfair advantage because of private ties, potentially leap-frogging over more qualified people--and the concern is that as a result, those private arrangements result in a loyalty that puts the good of the patron above the institution--in this case, the citizens and government of the United States of America. Nepotism is generally considered an unethical practice--see the current brouhaha at the UN--and patronage falls in the same boat, especially when it occurs in the public sector. This is troublesome because, ostensibly, we DO live in a democratic society, one of equal opportunity, where merit should outstrip inside connections and "I'll scratch your back if you scratch mine" behavior. If regular citizens like you or I are forced to function in a society in which your rights are guaranteed not by the sovereignty of the law but rather by whom you know, that's not a constitutional democracy.

Looking at the roster of Bush's second-round judicial nominees, there are definitely grounds for suspecting patronage. A number of them have served the Republican Party with either financial aid or services, and the question of whether improper 'payback' is being given them in the form of career advancement and the guarantee of lifetime employment must at least be asked. I am not suggesting that this info alone constitutes final damning proof--it would have to be cross-referenced with other data, concerning positive professional qualifications (e.g. rate of reversal by higher courts, compared to the national average and to other judges who sit on the circuit courts, i.e. who were successfully confirmed).

William Myers: He has never been a judge. He is a lawyer who has never even participated in a jury trial. The only opinions he issued as Solicitor of the Interior (a political appointment by W) were in favor of transferring land from the public to ranching and mining--two industries for which he used to be a lobbyist.

David McKeague: From 1985 to 1992, he was a member of and general counsel to the State Central Committee of the Michigan Republican Party. His further state-level partisan activity includes membership or leadership in:
--Ingham County Republican Committee (1979-1989)
--Sixth District Republican Committee (1981-1987)
--In 1988, he worked on Bush the Elder's campaign, including fending off legal challenges by primary competitors Pat Robertson and Jack Kemp
--Michigan Republican State Committee (1985-Present)
--Sixth District Chairman for the Reagan-Bush Victory 1984 Committee
--State Co-Chairman for the Bush-Quayle Victory 1988 Committee
--the National Steeering Committee for Lawyers for Bush
--Member of the Engler Exploratory Committee and Chairman of Lawyers for Engler (former governor of MI)
--Sixth District Chairman for the Jim Dunn for Congress Committee in 1986.

According to the Alliance for Justice (see page 2, and fn 5), McKeague's 1992 appointment to the federal bench by out-going Pres. George HW Bush was considered by some to be a parting gift.

McKeague himself has donated to the Michigan Republican State Cmte - $1000 (1990), and his wife Nancy, who is also a public figure, has contributed to George W. Bush - $1000 (1999)

William Haynes: In his Senate Questionnaire under the "conflict of interest" section, Haynes write that in 2000, "I volunteered to make phone calls on behalf of now President Bush." Since 2001 he has served as General Counsel at the Department of Defense, the Pentagon's top lawyer. He has contributed a significant amount of money to George W. Bush - $1500 (2000-2003).

Thomas Griffith: He was Senate Legal Counsel from 1995 to 1999, including during the Whitewater II investigation. More importantly, he has personal connections with former Senate Judiciary Committee Chairman Orrin Hatch (R-UT). According to The Hill, "Some conservatives have focused their criticism on what they allege is Hatch’s favoritism toward Thomas Griffith, a longtime acquaintance and fellow Utah Mormon whom President Bush has nominated to the U.S. Court of Appeals for the District of Columbia. " Those critics included Richard Lessner, the executive director of the American Conservative Union (ACU) and Kay Daly, head of Coalition for a Fair Judiciary.

Brett Kavanaugh: From 1994-1997, he was Associate Counsel under Kenneth Starr during the Whitewater investigation; he then went on to become a partner in Starr's private firm, Kirkland and Ellis until 2001. From 2001 to the present, he has served George W Bush in the Office of the Counsel President. In 2000, he served as the Lawyers for Bush Cheney Regional Coordinator for Pennsylvania, Maryland, Delaware, and the District of Columbia. He traveled to Daland, Florida in November 2000 to "participate in legal activities related to the recount." He served recently as an attorney in the Office of the White House Counsel. He has contributed substantial amounts of money to a number of Republican campaigns, including to the Republican National Committee- $500 (2000), George W Bush - $1000 (1999) and former Senate Judiciary Chairman Orrin G Hatch (R-UT) - $1000 (1999) .

Terence Boyle: An active Republican booster at the federal, state, and local level, with respect to both eletion campaigns and party conventions. In 1973, he served as Legislative Assistant to Sen. Jesse Helms (R-NC). In 1976 and 1980 he was an alternate delegate to the Republican National Convention. From 1977-1984, he was the elected chairman to the Chowan County North Carolina, Republican Party. Boyle was previously nominated to the Fourth Circuit by Bush the Elder.

Now, should any nominee to the federal bench have never, ever participated in American politics? Of course not. But there are degrees of connection that should be considered when seeking out an arbitrator, as opposed to a legislator. And given the number of lawyers and judges in the United States, I find myself continually asking, "Why THESE people?"

Abortion, Politics, and the Law

2005-06-21T04:43:00.000-07:00

I expressed my hope the other day that pro-choice Democrats -- Senators, lobbyists, activists -- take a broader view on any potential Supreme Court nominee than the abortion debate suggests they would. Already press releases are being disseminated and new task forces are being formed by pro-life groups for the nomination. This is not to say that pro-life groups will defeat pro-choice groups; rather, if this battle continues, everyone will lose. It is especially in the interests of progressives with wide-ranging concerns -- secular, evangelical, Catholic -- not to let the question of reproductive rights prevent them from making genuine progress on other fronts of equal or greater moral urgency.

In fact, it seems that there is a public agreement on most issues that the Democratic normally champions over and against the priorities of the Bush administration and the Republican Congressional Leadership. (I put it this way because the Republican party is fractured between at least two camps, and it would be unfair to say that the people now leading the party represent the Republican viewpoint as a whole. Look under "Responsibility, Fiscal" for a case in point.) A strongly religious Democrat friend of mine just wrote me this email, which I think is spot-on:

The polling data I've seen suggest that there's a broad consensus on environmental protection, corporate accountability, and civil rights except for affirmative action. The consensus includes gay rights -- except marriage; there the national consensus is against. That gives a lot of common ground, from which many of the Bush nominees are excluded. Just as aspects of fundamentalism scare me, so does secularism scare evangelicals. There are some "religious Republicans" we can't welcome: the ones who want to ban Darwin & demonize gays -- the ones Bill Frist is now courting for 2008. But look at the national reaction to Frist's sucking up to the religious right in the Schiavo case. Visibly including people motivated by religion (not just Republicans) can go a long way to easing the anxieties of folks with whom you and I would agree on most issues that come before SCOTUS (see first sentence). And anyone who genuinely wants to build some degree of consensus -- and thus keep off the bench the worst kind of Bush appointees -- has to accept that the Republicans have won most of the elections for the last 20 years and look likely to keep winning. [slight changes made; point preserved in its entirety]

The fact that the Republicans have won more elections doesn't translate at all into the fact that right-wing policy positions actually enact the desires of their constituencies much less their moral instincts. But, on the whole, I think the email is right and reasonable. Factionalism isn't just a problem on the right, and the left-wing extremists have just as hard a time sympathizing with real moral concerns that they don't happen to share. The solution to the problem is as simple as the problem may be, nevertheless, intractable. Recognize (a) that we live in an ethically pluralistic society and (b) that some issues, like abortion, have to be decided in ways that, no matter what, will make a large section of that society unhappy. If you are on the losing side, accept it, and keep firmly in view that our best good depends on maintaining a system that can fairly balance these disagreements, now and in the future.

Having said that, however, it is important that pro-life constituencies, who are advocating for a Justice, also make broader judicial virtues a priority before rigid ideological stances. This is the only proper 'litmus test.' American Life League President, Judy Brown, fails the test when she says,

"Abortion is not 'settled law'; it is the unconscionable taking of an innocent human person's life. We're not talking about nuances and intricacies of law here. We're talking about flesh and blood -- and murder. Any nominee, or potential nominee, who holds such a 'settled law' position is inherently unfit to serve."

The law is the way democracies enforce moral necessities. I am uneasy with the assumption -- not that there are distinct and even higher sources of moral judgments than the law; that I think myself -- but that the law is an insignificant consideration. People (a) find higher moral sources in different places (Koran, New Testament, Old Testament, as well as non-religious, like family/community moral traditions or ethical philosophy) and (b), even when they look to the same source, their moral conclusions can be radically different (James Dobson [mean, spiteful], Jim Wallis [kind, generous]). This is not only inevitable; in my book, it's wonderful. I wouldn't want to live in a world where this didn't happen. But, as a society, we need to find a way to balance these different sources and different interpretations, so that we can go along together. That's what the law does. It is written by people popularly elected to make it; it is interpreted by people either elected or selected by those who have been elected. The writers are closer to the electorate; the interpreters are more distant, because the winning side in an election only represents slightly more than half the people, and the interpreters must be responsible to the whole people. That is also why the Constitution is so difficult to amend. It needs a super-super majority to be changed -- 2/3 of both houses of the US Congress and then 3/4 of the state legislatures. The final say must be that of the whole people.

So let's return to the question of abortion and the law. This is something I wrote on an old blog, in a post about abortion:

We endorse killing all the time in our society, for the greater good of that society. War and the death penalty are the most obvious examples. But there are innumerable others: the refusal to regulate certain sectors of industry or to amend policies on social problems lead to many deaths – from traffic accidents, from pollution, from drug-related killings, etc. I can’t give numbers, but I am certain that these deaths occur in much greater numbers than abortions. The point is not that we should regulate the industries in question more (though perhaps we should); it is that we make choices all the time to balance the preservation of life against other social goods. Indeed, these choices are inescapable. One may oppose a certain war, but very few oppose the principle that the state must, at times, send its youth to die to defend its (often, very abstract) interests. None of these instances raises exactly the same questions as abortion, of course. The death penalty is used against people who have committed great wrongs (excepting the several documented cases of wrongful conviction), while the potential/unborn child is innocent of wrongdoing. The soldier makes the choice to enlist (although the socio-economic profile of the US army demonstrates that his choice is determined in large part by conditions over which he has no choice), while the potential/unborn child has no agency. But neither do any of these instances raise the same questions, exactly, as any other one of them. We make choices about death all the time, and my point is precisely that they are always very, very complicated ones.

What I didn't write then, but which is true, is that we make these choices through the writing and interpretation of laws. Some choices are good, some choices are bad; some necessary, others tragically unnecessary. But the law is the only way we have to make them, and the worst choice possible would be to stop using the law or to subordinate the law to narrower moral programs, to which only a faction of the American people subscribe. Right and left both can be guilty of this anti-democratic instinct. By all means, advocate for your positions. But don't presume that yours is the only possible course of action. We already have an excellent process for deciding what to do. You have a place in it, but you do not control it alone.

Experience a Must

2005-06-20T11:45:00.000-07:00

I would like to take some time to discuss William Myers, the nominee for the Ninth Circuit Court of Appeals. When I think of judges that are being appointed to life long positions, I think of experience. Recently appointed Janice Rogers Brown had experience as a California Supreme Court Associate Justice, Priscilla Owen was on the Supreme Court of Texas, and William Pryor had at least filled an openng by recess appointment before being appointed officially.

William Pryor has no experience as a judge. He has worked as US Department of the Interior Solicitor under the current administration and has worked as a lobbyist for a livestock trade association, but he has never worked as a judge.

The senate should not allow appointments to go through for inexperienced nominees.

The Damage the Media does to the Judiciary

2005-06-20T08:14:00.000-07:00

The good stuff that came out today or yesterday in the last post. Elisabeth Bumiller, on the other hand, published a useless article in the NYT about the upcoming partisan battle for the court seat. Its substance consists merely in stating over and over again how ready each side is to go to war with the other -- how much money will be spent, what war rooms have been prepared, what preparation the administration will give its nominee. I'd like to point out that this is the only discussion in today's Times about the Supreme Court. (Contrast this to the two substantial articles about Supreme Court decisions the Post put on its website.) The LA Times published a similar article, which isn't much help either, but at least managed to provide some historical and political context for how political debate is changing with changing media technology and political tactics.

These pieces are worse than useless, however. This is the sort of article -- more and more common -- that treats partisanship per se as news. What does the LA Times think is the real excitement?

The vacancy could spark a political drama the equivalent of an extended championship bout.

So what? First, this focus deprives us of the chance to learn about important aspects of the process -- who are the nominees? what can we predict from them? Even: what are the reasons Republicans and Democrats are likely to oppose each other so fiercely? what is the political and cultural context for these reasons? Is this really the whole picture (the fact of the Gang of 14 suggests not)? Second, and yet more damaging, it inures us to partisan rancor. It creates the idea not only that such ill-behavior is normal, but even that it -- as news, as the way things are done -- is admirable. Readers of the newspapers are encouraged to think that their best and only choice is to pick sides; and that picking one side entails wholesale dismissal and flat-out destruction of the other side. Not nice, not true, not necessary. Not responsible.

More SCOTUS speculation

2005-06-20T07:30:00.000-07:00

The QuandO Blog has some comments on the WaPo article I discussed Saturday. While McQ appears not necessarily to endorse this position, s/he generally concentrates on abortion as the important issue for Democrats in evaluating a candidate's fitness. I hope the Democrats don't apply a litmus-test philosophy in their evaluations, especially if it is abortion. There needs to be a post about this. Give me time.

Tom Goldstein discusses the same article. Read his thoughts. He's a very smart person. Anyone interested in the Supreme Court should read regularly the SCOTUS blog and its sister blog on Supreme Court nominations.

John McCain discussed the filibuster compromise and the likely upcoming Supreme Court opening on Meet the Press yesterday -- it's about halfway down the transcript.

Boyle, Pryor, Toil, and Trouble/Fire Burn and Cauldron Bubble: Civil Rights on the Bench

2005-06-20T04:29:00.000-07:00

One of the gentlemen President Bush may nominate for the Supreme Court is James Harvie Wilkinson III. Many consider him to a judicial activist, "using the courts to rewrite laws to his liking rather than simply interpreting them." Wilkinson defended his judicial temperment in addressing the Duke Law school last month. He advocated for some judicial activism by citing the "judicial intervention" of Brown v. Board of Education, which famously outlawed racial segregation in public schools.

This tactic echoes the rhetoric of a number of right-wing statements on the judiciary; the similarities indicate that the rhetoric is centrally coordinated by Republican strategists. For example, in the their fight against the filibuster, many Republican senators continuously employed the talking point that the filibuster had been used to obstruct civil rights legislation. Yes, it had been, thanks to Strom Thurmond, who remained a prominent Republican Senator up until three and a half years ago. (Strom's hatred of African Americans gave him superhuman strength and endurance: he set the record for filibustering by one person, going a whole twenty-four hours. Talk about the power of the Dark Side of the Force. "Feel your anger, Luke.") That's exactly what's so despicable about this argument. The rhetoric attacks procedural principles -- strict interpretation of the law, the mechanism of the filibuster -- by arguing that they do substantive harm. But the party that is attacking the procedures is the very party that caused the harm in the first place!

So let's look at the judicial records of some of the judges nominated by the President and pushed by the Republican leadership in the Senate. Are these politicians sincere in their concern for civil rights?

Terence Boyle was just sent out of committee to the Senate floor for confirmation to the 4th Circuit Court of Appeals. Keep in mind that the rulings of this particular court have a profound influence on the African-American community. The vote to send him out of committee was entirely on party lines. The Republicans, party of Lincoln, defender of civil rights, all want him as a federal judge.

So what do others say about Judge Boyle? Well, his nomination has been decried by black congressional leaders, civil rights groups, police, and advocates for the disabled. Bobby C. Riddle, president of the Professional Fire Fighters & Paramedics of North Carolina, wrote:

“Judge Boyle has not shown the sensitivity and respect for the fundamental rights guaranteed by our Constitution, such as the right to free speech, the right to free association, and the right to due process, that are the primary bulwark protecting public employees here in North Carolina from arbitrary, unfair and retaliatory actions.”

Marc H. Morial, the President of the National Urban League, a group that works to establish rights and opportunity for black Americans, wrote:

"Judge Boyle's decisions during his years on the district court display an astonishing disregard for civil and individual rights and lack of respect for judicial precedent. His repeated failure to follow the law and his history of curtailing civil rights protections show that he is significantly out of step with mainstream American jurisprudence and makes him the wrong nominee at the wrong time for a lifetime appointment to the Fourth Circuit Court of Appeals."

Indeed, Boyle has been reversed more often than any other federal judge nominated by the President. Specifically, he has been repeatedly reversed on civil rights rulings in the 4th Circuit, which is regarded by many as the most conservative federal appeals court in the country. In other words, his position is beyond extreme in its disregard for civil rights.

So, no, Judge Boyle is not a friend of civil rights for the black community, no matter what the Right-Wing Center for Talking Points would have you believe. What about the civil rights of other groups? Margaret Moore, director of the National Center for Women & Policing, asked senators to reject Boyle for refusing to address gender discrimination. Michael Adams, a gay rights advocate, said that, when ruling on civil rights, Boyle has undermined the fairness and integrity of judicial proceedings.

“The bottom line is that Terrence Boyle has a history of unremitting hostility to the Americans with Disabilities Act, which is the most import federal law that protects people with HIV. When Boyle rules, as he has done, that an employer’s irrational fears about a disability is a sufficient defense, we can imagine what this would mean for people with HIV.”

Judge Boyle has consistently demonstrated his hostility to the civil rights of African-Americans, women, and homosexuals.

William Pryor, Jr. was just confirmed to the 11th Circuit Court of Appeals. His attitude to homosexuals makes Boyle look like a model of compassion and tolerance. When he was the Attorney General for Alabama, Pryor was the only Attorney General outside of Texas to file an amicus brief endorsing Texas' sodomy statute. In this brief, he advocated punitively singling out same-sex relations, despite the fact that the statutes in his own state regarded heterosexual and homosexual relations as equal under law. He explained his participation with one of the most hateful sentences I have read in a long time. He equated homosexual love with “prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia.” Necrophilia? Bestiality? A gay person is neither a corpse nor an animal. Anyone who thinks so has no business distributing justice; justice is impossible with such a cruel prejudice. But there he is, on the bench for life.

Tell me honestly, now, do you believe Judge Wilkinson when he equates himself with the heroes of the civil rights movement?

Bill Frist, young man and old

2005-06-19T13:46:00.000-07:00

David Brooks give an interesting perspective on the character of Bill Frist and the way it has changed since he became a Senator. It doesn't justify his decision to threaten the nuclear option in order to put unqualified and extreme judges on the bench. In fact, it bolsters what everyone knows -- that Senator Frist is using the U.S. judiciary for personal political gain. He is hoping to make himself a hero to the voting bloc of extreme social conservatives often misrepresented as evangelicals. But it does put the Senator's political calculus in a larger context that allows us to feel sympathy for his having become something he likely never wanted to be.

God bless America, land that I love

2005-06-19T05:26:00.000-07:00

In the middle of the desert, there is a flower blooming. I have had a lot to complain about, watching the lifeless Washington landscape, seared by partisan conflict. I may sound grumpy but, you know what?, I'm right. You need to be grumpy when your elected officials have abdicated their responsibility to the common good. But there is also a time for joy and due praise. Senators Bob Nelson and Mel Martinez of Florida, a Democrat and Republican, are reestablishing a joint judicial nominating commission to review federal judiciary appointments coming from Florida. They will find candidates who can appeal to both of them, in terms of ideology and professional qualification. It is an excellent answer to the sort of question asked of them by Circuit Judge Terry Lewis of Tallahassee:

why a party would select judges who appear to have extremist views when those people would probably take extremist positions on the bench instead of assuring an independent judiciary.

The spirit of compromise and consensus, embodied in this decision, echoes the procedure laid down by the Memorandum of Understanding that the President must consult the Senate in the act of choosing his judicial nominees. This is the full and proper affirmation of the advise-and-consent clause of the US Constitution. Americans should urge their Senators to adopt a similar democratic and moderate practice in selecting nominees from their state. I hope the White House is paying attention too.

Bob Graham, the former Senator from Florida, a man I admire, gave this the proper emphasis. He was asked to answer a question about the fact that Senator Martinez's office called the Terry Schiavo tragedy 'a great political issue.' He refused and said that he preferred to concentrate on the two Florida senators working together.

"There are some important issues that are coming and one of them is the question of how do we go about selecting our federal judges in Florida. Really going back to the time when Lawton Chiles was relatively new in the Senate, our two senators have seen this as a joint responsibility. We've done this when there was a Republican president and a Democratic president and when there was a Republican Senate and a Democratic Senate. That's been the tradition that's served the state well, and I am going to try to maintain a position to allow me to be constructive in encouraging that."

The high road gets you where you want to go a lot faster than the low.

The facts are the first casualty; the world is the next

2005-06-19T04:30:00.000-07:00

I wrote a post a little bit ago, in which I expressed concern about the White House's decision-making.

I support many things President Bush has said and I believe that he is a good man at the bottom; I think I would like him, were we to meet. But there can be no question that his administration has a record of putting personal ideology ahead of important facts about the public good. This may explain why he sees no problem with judges who do the same.

One of the reasons I had to doubt the President's commitment to serious evaluation of facts over his political agenda was his having hired an oil-industry lobbyist to rewrite government reports on the science of global warming. Once the New York Times broke the story I linked to, the administration was forced to let the lobbyist go. But today the Guardian reveals that the administration's commitment to ideology over truth on the science of global warming is deep and pervasive. The President's men are using the same tactics to undermine Britain's efforts to slow global warming. Is this the scientific version of the Bush doctrine of pre-emption -- take anyone out, who might acknowledge the reality of climate change, before they get a chance to do so? There is a fundamental procedural connection between the White House's science policy and its foreign policy, as suggested by the Downing St. memo: secretly fixing the evidence in order to present its desires as truth.

The biggest problem for me, strangely enough, is not that the Bush administration is encouraging the single greatest threat to worldwide human happiness and prosperity -- i.e., climate change -- nor is it that he might have made the deliberate decision to send young Americans to pointless slaughter in Iraq. I feel callous just writing this -- these are horrible things to have done, beyond my capacity to describe -- but my deepest unhappiness is the way the President is compromising our democracy. Democracy needs decision-making to be public; it needs open debate on important questions. Our system of governance was designed to work through the cooperation of its distinct parts, no one office overriding the others. Democracies can be fickle in the short term, but ultimately there is wisdom in their consensus. Democracies will make the right decision, given time to balance the different views of their constituent parts. Open discussion, honest debate, and uncompromised decision-making must come first. This is a more important consideration than the needless American deaths in Iraq precisely because, if we had been allowed to make this decision as a democracy, we would not have sent soldiers to the desert in the first place. Tocqueville famously wrote that democracies are slow to go to war, because of the debate required, but once committed to war, they are dogged in their determination to see it through. Right now, only 37% of Americans support the Iraq war. If the President had had the patience and wisdom to present the truthful case for the war, either we would not have gone at all, or we would have gone (a) with a plan more likely to succeed and (b) with the moral courage and conviction to see that plan through to its fulfillment. But the President did not trust his democracy and now the democracy does not trust him.

Pay Street

2005-06-18T12:06:00.000-07:00

What is it about judicial nominees that matter so much? Put simply, the judiciary was intended by the framers of the Constitution to be the most independent branch of our government. Independence is integral to fair and equitable interpretation of law and, indeed, the Constitution itself. Equal justice under law means that partisanship, conflict of interest, or unusual ideologies must be kept out of the judiciary.

Unfortunately, we live in a land and time where the reverse is happening, not just on the courts but in every aspect of government, even the unofficial parts. Elizabeth Drew has recently published a piece in the New York Review of Books detailing the ruthless partisanization of K Street, where the lobbyists in Washington live, work and feed. It is not balanced, it does not seek common ground; but neither do those she is reporting on. She offers a valuable perspective on an under-reported but fundamental shift in political power towards one faction of America and the distasteful methods used to effect it. The culture of "work with us or die" is typically found on the extreme margins of political life. But these days it is burrowed into the heart of that life. Read to the end for Drew's thoughts on how political corruption has effected the ability of Congress even to think, in the ways they need to, to govern effectively.

Likely nominees for the Supreme

2005-06-18T10:42:00.000-07:00

The Washington Post has two articles from the AP on candidates President Bush is said to be interested in filling an opening on the Supreme Court. Ex post considers it possible that Rehnquist will announce his retirement as early as Monday; with eight of the nine justices over 65, there may well be multiple openings.

I'd like to look at two candidates. One appears to me not a good choice, the other seems eminently reasonable.

If the President nominated James Harvie Wilkinson III, it would be a shame. He has a reputation for judicial activism, for one thing. For another, the Post reports that

he was part of a panel that ruled in 2003 that the government could indefinitely detain without legal rights American citizens captured overseas in the war on terror.

The present High Court has already repudiated this policy firmly and with near-anger at the President's eagerness to place his policy inclinations over the Constitution. Another potential nominee is, of course, Alberto Gonzáles, the author of the legal opinion sanctioning torture.

Micheal McConnell, on the other hand, appears a solid nominee, likely to win approval from Senators of both parties. He has bi-partisan support in the academic community. He opposed the Clinton impeachment and the Supreme Court decision for Bush v. Gore. This suggests that, unlike other recent nominees to the Appelate Court, he is likely to put his understanding of the law ahead of whatever political sympathies he might have. The likeliest objections to McConnell from Democrat Senators would stem from abortion.

He has criticized the legal reasoning in Roe v. Wade and as a law professor, used Life magazine photos of fetuses to spark student discussion of whether abortion amounts to a taking of human life.

He has said, however, that he would follow precedent and not seek to overturn Roe. In any case, a lot of people find the reasoning in Roe dubious; critiquing it is not a radical legal position. And, as a teacher myself, I find it admirable that he would bring controversial material into a classroom in order to push his students to confront the moral limits of legal decisions. There has been some talk recently in Democratic circles (a) that the party needs to try harder to understand the legitimate moral anxiety that many citizens feel in response to abortion and (b) that the Roe v. Wade decision, while protecting reproductive rights, has damaged the progressive agenda in other, potentially more serious ways. I hope this balanced perspective prevails among the Democratic Senators if the President does indeed nominate McConnell. Making speculation about how someone would vote on reproductive rights the sole test of suitability for the Supreme Court would, at this point, offend people from several ideological communities.

If you are interested in reading a conversation about abortion, please visit my old and very defunct blog for a pro-life colleague's take on the question and my pro-choice response. Civility matters, often more than the substantive positions people take in oppostion to one another.

UPDATE: Re: the Rehnquist retirement. On the other hand, there's a real possibility that he'll stick around for another full term, according to this (hat tip: SCOTUS blog). Basically, Rehnquist is the only one who knows.

Judges for Corporate Interests

2005-06-18T08:54:00.000-07:00

I’m sorry to keep linking to Balkinization, but they’re just so darn good. Brian Tamanaha tells, briefly but effectively, the story of how the US Chamber of Commerce is implementing its exclusively corporation-friendly agenda by helping a certain stripe of judge get on the bench. They spent $53 million last year to assist this interest group. His post is excellent background on why judges like William Meyers are being nominated to the federal court.

Webstreaming the Democratic hearings on the Downing Street Memo

2005-06-17T20:07:00.000-07:00

See it on www.c-span.com

House Judiciary Cmte. Democrats Meeting on Downing Street Memo and Iraq War (06/16/2005)
Rep. John Conyers (D-MI), Judiciary Cmte. Ranking Member, on Washington Journal (06/16/2005)

Reflecting on the Conyers hearing

2005-06-17T17:37:00.000-07:00

I am watching CSPAN's rerun of the Conyers hearing on the Downing Street Memo. Cindy Sheehan understands the issue exactly. She is the mother of a soldier, who was killed in Iraq. She says that the war in Iraq is not a partisan issue; she's right. She says that her son, Casey, wasn't marched off to Iraq as either a Democrat or a Republican; he left, and died, as an American. She says that her concern is not for party, but for her son, first, who is now gone, and then the Constitution. She's way beyond caring about who wins the next election.

Privilege and the Downing Street Memo

2005-06-17T14:28:00.000-07:00

As Peter points out in his post below, the Downing Street Memo is finally receiving its due notice in Congress and in the media. And quite frankly, it's in the best interests of the country as a whole and the president himself that this matter be investigated in the way that only a true democracy can: with transparency, fairness, and accountability if/when merited. Only then will the country either root out and begin to make amends for an illegal act, or the president will be vindicated. This requires a 9-11 style bipartisan commission, with reasonably broad investigative powers--including access to documents and government personnel.

And that's where things will start to get sticky. As I noted in a previous post ("Partisans and Privilege"), a number of Bush's nominees to the federal judiciary have troublesome backgrounds--because either they are deeply indebted to the Republican Party for their careers, or they support very broad presidential privilege--or both. Trying to pry necessary documentation out of the White House is already not easy while the president it sitting--but since the president, his heirs, AND the vice-president have now secured uncontrolled discretion over the disposition of their papers even after they leave office, investigating just about anything may be very, very difficult--in a most undemocratic way.

House Party

2005-06-16T15:33:00.000-07:00

John Conyers (D-MI) just finished holding a forum on the Downing Street memo and associated evidence of presidential malfeasance. As you all know, we face the increasingly real possibility that the Bush administration decided -- on its own -- to go to war long in advance of any public discussion or decision. It may even be that his administration manipulated intelligence in order to bolster the case for war. If that is the case, then the President lied, and he lied about the most serious of matters.

I am not saying that the President did lie. We don't know what happened. But, precisely for that reason we know what needs to happen now. The White House must address these questions publicly and fully; the President must satisfy the doubts and justify his action. A healthy democracy is a transparent democracy, and its leaders are accountable for their decisions. Unfortunately, the President's Press Secretary indicated that the President has no intentions of entering into dialogue with his fellow citizens: "This is simply rehashing old debates that have already been discussed," he said. That's simply stonewalling; there has been no discussion, no debate. Congressman Conyers held the forum and wrote an open letter to President Bush in order to start this conversation. He wants to make public this shadowy affair. All I'm asking for is that I can confidently trust my leader. But trust requires communication, and we need to begin that openess.

What can you do? House party. CSPAN 2 is airing the forum again tomorrow night -- Friday -- at 8 pm EST. Why don't you gather with your friends and families to watch it? Let's learn about the questions and about what we need to do to get answers. Bring a date, order some pizza; sit around, watch, and talk. Let's be a democracy. Nothing wrong with having a party while doing it.

Finding the balance

2005-06-16T13:24:00.000-07:00

Between civil liberties and security, that is. I was happy to learn that the House of Representatives, an infamously fickle body, has been able to think more clearly recently about the whole problem of protecting a democracy -- from internal as well as external threats. Yesterday members blocked that controversial provision of the Patriot Act that would allow the FBI free and unjustified access to information about what people read in libraries. Reading, of course, and the pursuit and transmission of knowledge generally, is foundational for an empowered citizenry. In other words, democracy depends on it. That's one side of the question. The other side concerns the need to identify terrorists before they launch an attack. That is pretty darn important too. But the FBI can get the information they need on suspects; nothing is stopping them -- all they have to do is show cause, as the US Constitution normally has law enforcement work. This particular provision of the Patriot Act would unreasonably increase the power of government at the expense of American democracy and Americans themselves. It is a shame that President Bush is using the false spectre of terrorists run amok to suggest that, without this provision, libraries will become "a haven for terrorists." Really? Libraries? Iraq is certainly a haven for terrorists, thanks to the administration's failure to plan an occupation strategy sooner than a couple of weeks before the invasion; but I don't think we have to worry about the Nancy Drew section. Praise to the 38 Republican Representatives who voted for common sense and country.

It's arrived!

2005-06-15T18:43:00.000-07:00

Where does this here communicative medium meet up with the U.S. Constitution and healthy democracy? If you said, "Students for the Judiciary," well, thank you -- but what are you thinking?! It's the Legal Guide for Bloggers from the Electronic Frontier Foundation, of course. They really are wonderful people.

The Bolton nomination and the Senate's place in the government

2005-06-15T08:48:00.000-07:00

I posted this before, on the old filibuster for democracy blog, but with Bolton being in today's news, it seems reasonable to put it up here too.

****************

We over here at Filibuster for Democracy have, from the beginning, been concerned primarily with process. We have argued that the rules and modes of governance are more important than any particular substantive issue. Given this, it has been interesting to follow the fortunes of the Bolton nomination for ambassador to the UN.

The substantive questions are, to my mind, insignificant. Likely, John Bolton will not make an effective representative of US interests to the United Nations. His defenders say that his confrontational style will help him stand up to critics of the United States. That is a strange thing to say. Are we to imagine that another ambassador will be inclined not to stand up to critics? Would this alternative ambassador end up not acting in American interests? Of course not. The person who takes this job will need to persuade those critics to see things from the American perspective, will need to get them on the same page as the United States. Confrontation is clearly not the way to effect this goal; the chances are that it will rather further alienate critics of the US, making them even more intractable, harder to work with, and liable to obstruct American interests all the more.

So, no, John Bolton is not a good choice for UN Ambassador. But that hardly seems important. Who imagines that the position of ambassador to the UN will play a major part in the present Administration? Who imagines that critics of that administration would reevaluate their animosity toward it if the right person were chosen to work with them?

As a substantive issue, then, it seems to me that the Bolton nomination is not worth much bother.

So why are the Democrats effectively filibustering the Bolton vote? Process. The filibuster is designed to extend debate -- often, less floor debate than the behind-the-scenes negotiations that allow both parties to find common ground -- and to give that debate access to more information. The Senate has a constitutional obligation independently to evaluate the President's nominees and several other kinds of presidential decisions. To do that job at all, the Senate must have access to information -- both information that the President uses to make his decisions and information that will help them understand why the President made certain decisions. This is what the Senate is asking the White House for now.

Anyone concerned with process, with the way the government works, will have found herself uncomfortable with the secrecy of the White House. Some of the consequences of this secrecy have been profound. Whatever you think about the war in Iraq -- and I am sympathetic to some of the post-facto justifications -- it is certain that it was begun under false premises. It is certain that the Congress, to which the US Constitution explicitly gives the power to declare war, did not have the information it needed to play its constitutional role. The declaration of the war against Iraq collapsed the separation of powers, giving the executive branch a primacy that the framers of the Constitution would have shuddered to know of.

The Senate is seeking to set that balance right. They are asking the White House to provide information on Mr. Bolton's role in an intelligence dispute over Syria and the handling of intelligence reports from the National Security Agency. The way the White House used intelligence and hid its decision-making process behind assertions about classified data is precisely the trouble with how we began to send troops to Iraq. According to the New York Times, the White House spokesman says that the Senate has the information they need. This is patently untrue and, sadly, a predictable response from the White House. Senator McCain, in contrast, who is asking the White House to make available to Senators some of this information, says that the Senators "have some substance to their argument." The two Senators leading the call for more executive transparency, Sens. Dodd and Biden, convinced enough Senators to make a filibuster possible by arguing that this was about "standing up for the Senate and its prerogatives against incursions by the executive branch." This is the simple truth, and a much more important question than how bad an ambassador to the UN John Bolton will be.

The political effects of the filibuster compromise?

2005-06-15T05:20:00.000-07:00

Too soon to tell, of course, and in any case, if it becomes important, it will be the spin that determines the meaning of the compromise for the political fortunes of independent Senators. But, while insignificant for the issue at hand, this is still interesting perhaps in suggesting what sort of things what sort of Senators benefit from.

The interpretation of facts

2005-06-15T04:26:00.000-07:00

Mark Graber of Balkinization explains how high-level judges not only interpret the law but also interpret and evaluate facts. His example concerns questions of racial discrimination. Unfortunately, it appears that the judges, whom President Bush and Senator Frist find most amenable, refuse to recognize racial discrimination in nearly any set of facts.

Progress

2005-06-15T04:15:00.000-07:00

We know the numbers by now -- before the filibuster controversy, President Bush had the vast majority of his judicial nominees approved by the Senate without fuss or mention. Why such a controversy over a small number of judges? First, it is important to understand that it was a controversy the Republican leadership created. There is nothing unusual about a few nominees not meeting approval, especially when they are nominees such as this. Let's rephrase the question, then: why did the Republican leadership -- executive and legislative branches both -- care so much about such a small part of the judical branch?

It's a long history, but it can be told in short order. The judicial branch, in the past 30 or 40 years, has expanded individual rights and group protections in some fundamental ways. This appeals to citizens on the political left. However, many citizens on the political right feel that the expansion of these rights infringes inevitably on the rights of others. Abortion and affirmative action are two good examples -- the rights of the unborn, in the language of social conservatives, and the rights of non-minority applicants to places at jobs and colleges. (Categorizing either of these as rights is controversial, and that's the essence of the disagreement.) As such, the court has become a concern for social conservatives, who feel as if the life they wish the country to lead is being corrupted by unelected judges. The reasons, for which the framers of the Constitution decided that federal judges should not be elected but appointed, are germane here. They were aware of the power the interpretation of law has over a society, and they deliberately placed that power out of the direct reach of an often fickle or unreasonable public sentiment. Indeed, they understood well that elections can have the effect of totalizing what is in reality only partial: a judge elected (as President Bush was also) with little over half of the votes would nevertheless by making law for the whole land. This is, in fact, the reason we ought to be especially careful with judges, and especially cautious about the desire of ideological camps to place judges on the bench, whom they expect to implement an agenda that speaks only to their hopes and fears.

So the real clash is not over judges, but over visions of the country, and the real question is: are the visions compatible? This debate is often characterized as religious vs. secular, or even evangelical vs. non-evangelical. This is inaccurate. The vision of social conservatives, as it would be enacted by a controversial nominee like Janice Brown, does not reflect even the evangelical constituency. For example, Janice Brown envisions a radically weakened federal government and a world in which the most wealthy have free reign to pursue their material ambitions. The latter contradicts the basic value many evangelicals put on fairness and social justice; the former would play havoc with programs essential to a vision of realizing equality of opportunity. Evangelicals and other religious communities who endorse such programs as social justice and stewardship of the earth, as God’s creation, have begun to make their voices heard.

Much of the fuel that feeds this fire is the sense among social conservatives that their values are under attack and that their community is being dismissed. This, however, assumes that the two competing political sides are also competing on an ethical plane that divides communities. Politically savvy social conservatives, who wish to ride this feeling of resentment to a position of great power in, say, the Senate, encourage the belief that the political divide on which they base their careers corresponds to a fundamental moral divide. I am glad to see, then, that the religious communities of the right and the religious community of the left are taking it upon themselves to find shared values and, on that basis, to work to help each other realize a compatible vision of America. Once we realize that a compatible vision, based on shared values is possible for people who now find themselves political opponents, I suspect we can find some judges everyone is confident will represent those common interests.

Partisans and privilege

2005-06-14T12:28:00.000-07:00

You know, I never used to wonder about the federal judiciary and how the justices got into those positions. Maybe ignorance is bliss. Because the more I learn, the more uncomfortable I become, both about the professionally incestuous nature of the relationship between the Bush administration and a number of these nominees, and because the question of privilege keeps coming up.

Take the case of Brett Kavanaugh, a nominee to the DC Circuit, one of the two most powerful in the country. As Dana Milbank of the Washington Post puts it, "As a lawyer working for Kenneth Starr during the Whitewater investigation, he was devoted to restricting the powers of the president [by demanding access to documents]. Now, as a lawyer in the Bush White House, he is devoted to expanding the chief executive's powers." The battle over executive (presidential) privilege is already an issue for the Bush (43) presidency (see my earlier post, "The effect of these investigations) ; almost immediately upon entering office in his first term, Bush had Kavanaugh (now working for the administration) draft an executive order further restricting access to such presidential records, but deferring to former presidents and their families. The President Records Act, which he sought to modify, was a product of--you guessed it--the Nixon debacle.

The trigger for Bush's directive? According to the National Security Archives, "[Bush] was notified of a scheduled release of Reagan presidential records (68,000 pages of records). His legal counsel requested two successive 90-day extensions of time to review the records prior to their release followed by a third request for an indefinite extension of time so that the White House could evaluate the legal framework and process that would govern release of the records. This was followed on November 1, 2001 with the issuance of Executive Order (E.O. 13,233) that gives the White House and former presidents uncontrolled discretion [my emphasis] in deciding whether to deny the release of documents requested by journalists and scholars." For the first time, Vice Presidents are also included. Among the documents ultimately withheld:
--a six-page 8 December 1986 memo to the President and Director of Public Affairs entitled, "Talking Points on Iran/Contra Affairs"
--a series of memos dated 22 November and 1 December 1988 for the President entitled, "Pardon for Oliver North, John Poindexter, and Joseph Fernandez"
--a two-page memo for the President from the Attorney General, "Appeal of the Decision Denying the Enforcement of the Anti-Terrorism Act of 1987"

Ironically, it was not politicians but primarily historians (including the Natl Security Archives) who got up in arms, filing suit in November 2001. The case was ultimately dismissed in March 2004--mistakenly, according again to the same NSA doc I link to above: "A federal judge's dismissal last month of a landmark open government case was based on two factual misconceptions and deserves re-opening". I have not seen any docs online noting any new action.

Eeeenteresting. Back to Kavanaugh: how does one defend arguing against presidential privilege in the one case, and not only buttressing but significantly expanding it in another? Two possiblilities, in Milbank's article: either it's the difference between a criminal inquiry in Whitewater (which trumps privilege) and a civil one (which doesn't), or it's because he's just a really good lawyer, acting in the interests of his client (see also: William Haynes, nominated to the Fourth Circuit).

Let's leave aside the first possibility under "benefit of the doubt"; that sounds like a valid distinction. Moving onto the second, I begin to feel a bit uncomfortable. Because while Kavanaugh has clerked for judges, he has never been a judge. His experience has always been advocating for a client. And for the past several years, his client has been George W. Bush. Coming back to our "benefit of the doubt", on the question of whether Kavanaugh would challenge Bush's presidential privilege in a criminal case, Milbank quotes one of the nominee's former colleagues from Starr's office: "You might have to reassess based on what Brett does at that point."

You know, I just don't understand why we as a nation should have to live with that doubt. I mean, is it me, or does it just seem like a guy who
a) has never been a judge, only an advocate
b) has deep ties to not only the Republican Party in general, but has served in the administration of the sitting president
c) may have to hear cases regarding privilege in re Cheney's Enron/energy policy meetings, and--well, Lord only knows what's coming down the pike with the Downing Street Memo or other inquiries into how our intelligence could have been so wrong about Iraq's WMDs...

Is there really no other candidate in the entire United States that is better qualified to fill a spot on the bench? Seriously. This is not the kind of doubt that should be banished by faith in the president. Have we as a nation come to installing inexperienced partisans with direct patronage ties to an administration that is already noted as one of the most secretive in American history and which has already invoked executive privilege (in the Enron/energy inquiry) and may do so in the future? Well, maybe some Republicans in the Senate will feel that's a risk they don't want to take with the integrity of our Constitutional separation of powers. Why not drop your senators a line?

http://www.senate.gov/

Stunned Sense(nbrenner)less

2005-06-13T16:42:00.000-07:00

For folks like myself who didn't understand how this relates to the blog's regular content, Rep. Sensenbrenner is chairman of the House Judiciary Committee. You want to talk about senseless behavior? Follow the link in Matt's post to read more about how "live on C-SPAN... Sensenbrenner abruptly gaveled the minority-called hearing on the USA PATRIOT Act to a close and stormed out, ordering the witnesses dismissed, the microphones turned off, the record closed, and even had the official stenographer threatened for continuing to take notes on what the stunned Democrats he left behind were saying."

Whoa. I emailed my rep to the House. I hope you do the same. Find his or her contact info at

http://www.house.gov

Committees Should be Seen and Not Have Hearings

2005-06-13T13:57:00.000-07:00

The always-good (often-great) Kagro X rips James Sensenbrenner a new one for his unconscionable actions in the committee hearing last week when Sensenbrenner shut down the hearing when Democrats started...asking questions.

It really must be frustrating. Your party takes over Congress and that pesky opposition still has the temerity to ask questions.

Deliver us from rhetorical smokescreens

2005-06-13T13:15:00.000-07:00

When I was researching Janice Rogers Brown, of course I came up with a hundred clearly partisan sources for analyses and opinions. It's hard to say who is trustworthy when people are incredibly upset over complex issues. So I went to the Department of Justice hit, figuring that's where the Republican leadership would put its best foot forward, with the most optimistic and thorough defense possible. Silly me.

Maybe I simply don't understand how a nomination is convincingly shepherded through the Senate by a White House that earnestly believes in its nominee on merit. Even though she has been confirmed, I'm posting what I found--because it is clear that in order for the democratic process to work properly, we've got to demand a higher standard of accountability and quality from our public servants and the media. That starts with calling out the underperformers and the hacks. So, here's the only posted support letter the Department of Justice saw fit to give a nominee to their own department, with my own commentary bracketed in between paragraphs:

Gerald F. Uelmen, Professor, Santa Clara University School of Law
http://www.usdoj.gov/olp/brownsupport.htm
[originally printed as "Janice Rogers Brown has demonstrated all these qualities in abundance." Op-Ed The Record, August 9, 2003, page 5.]

"Too often, the best advice for those who want to rise in today's judiciary is 'keep your head down.' Unfortunately, the surest path to confirmation in this climate is anonymity. Judges who have compiled a track record of strong positions on controversial issues will be passed over. They shouldn't be, because a willingness to stick your neck out and accept criticism is often the hallmark of a great judge. A president or a governor should be willing to occasionally risk a
bruising confirmation battle to elevate a jurist with great potential to make a difference."

[I read: There are two kinds of judges, ones who prudently but spinelessly "keep their heads down", and ones who "stick their necks out and accept criticism" --often, the "great" ones. Furthermore, the right kind of leader (the great one?) is willing to go to the mat for this bold and ehem, presumably intellectually and ethically worthwhile nominee, bloody noses and all. To your corners!]

"That's precisely what President George W. Bush has done in nominating California Supreme Court Justice Janice Rogers Brown to the D.C. Circuit U.S. Court of Appeals. He should be applauded for this appointment, and she should be promptly confirmed. But that's unlikely to happen. The judicial confirmation process has become mired in 'payback' and special interest politics. Justice Brown will be targeted by liberal [sic] because of the opinions she authored in controversial abortion and affirmative action cases. On both of these issues, she voted the same way as Stanley Mosk, a great 'liberal' jurist with whom Justice Brown had a lot in common."

[I read: In this corner, the fearless W, fighting to "elevate a jurist with great potential to make a difference". Now, without my saying it, you know what kind of difference I'm talking about--because in the other corner, we have the "special interests", the same who force lesser anonymous judges to uphold laws that you and I find distasteful--but so far, have been broadly upheld by the Supreme Court as Constitutional. Ehem, I won't say if she and the great "liberal" jurist I refer to used the same reasoning on the cases, which I likewise strip of all potentially relevant details, just that they voted the same, which chances are about 50/50, assuming a choice of voting either for, or against.]

"Although I frequently find myself in disagreement with Justice Brown's opinions, I have come to greatly admire her independence, her tenacity, her intellect and her wit. It's time to refocus the judicial confirmation process on the personal qualities of the candidates, rather than the 'hot button' issues of the past. We have no way of predicting where the hot buttons will be in years to come, and our goal should be to have judges in place with a reverence for our
Constitution, who will approach these issues with independence, an open mind, a lot of common sense, a willingness to work hard and an ability to communicate clearly and effectively."

[I read: Now, regardless of the elaborately sympathetic set-up I have just built, I have to interject at this point that, speaking as a professor of law, in which capacity I write this column, "I frequently find myself in disagreement with Justice Brown's opinions". But who wants to talk about the LAW when we have a classic American success story on our hands! Let's go back to putting people into positions of great responsibility not because of their proven facility in a specialized field, through which that person will wield immense power, but because of their "personal qualities"--like in high school! Besides, who cares about looking into nominees' records to find out their opinions (and record of reversal) when there is significant doubt that any future Americans will continue to argue about those hot-button issues of "the past"--you know, like
* under what circumstances Constitutional rights supported by judicial precedent are suddenly to be considered alienable;
* who gets to make that decision;
* what is an inalienable right and what is not;
* once such decisions are enacted as laws, the interpretations of those statutes in their application to a given individual at a given time.]
________________________
Maybe this is one of those cases when a professor is asked to write a recommendation that s/he really doesn't want to , but can't think of a plausible way to get out of it, and so does a hack job. I certainly hope so. Because the idea of anyone engaged in the field of law, and
a faculty member to boot, using these kinds of practically content-less arguments to advance a nominee for the second highest court in the entire country is pretty disturbing.

To begin with, the opposition between anonymous judges and those that speak out is overly simplistic. At no point does Professor Uelmen include actual legal knowledge as an important factor to consider when distinguishing between judges who dissent, and those who come to consensus on a ruling because of their knowledge of the Constitution, the laws on the books, precedent, and professional ethics that prevent personal opinions from bleeding over into legal ones. Would he have us believe that mere bold contrariness carries the same weight as speaking truth to power? Is independence praiseworthy per se, or only when conjoined with deep learning and prudence? There is no mention of how to distinguish one of these dashing and correct judges from a bold yet incorrect one. If a jurist if going to make "a difference" (an empty, hack phrase), please explain how, don't force people to read between the lines.

Moreover, employing a flattering image of the president and throwing out some divisive partisan issues--abortion and affirmative action--to shield the almost complete lack of commentary on the nominee herself is not an honorable way of making a case in favor of someone you truly believe in.

When Uelmen finally does get around to talking about Rogers Brown herself, he doesn't have much really to say at all. Maybe if we were nominating someone to host a cocktail party, wit would be a prime requirement. In the interpretation of the law, I think not. Maybe I'm
missing something, but shouldn't a candidate for just about any job have these qualities: can work independently, not stubbornly closed off to new ideas, has common sense, puts in top effort, can communicate well with others? Yet again, I am struck by the total lack of any testimony to her LEGAL capabilities--or rather, the one clear admission that this "supporting" law professor often disagrees with her LEGAL opinions!

The main theme is really a metaphorical combat wherein this brave nominee is being wrongfully attacked by factions who would defy Bush's praiseworthy efforts to bring Rogers Brown rightful recognition on account of "her independence, her tenacity, her intellect and her
wit." How about being able to recommend her for--or even mentioning--unimpeachable ethics, depth of learning, respect of her peers, and record of consistent and dispassionate opinion-writing? Whatever legitimate qualifications Justice Rogers Brown may have to offer, Uelmen does service neither to her nor to his readership. I certainly hope his students fare better.

States' Rights Trampled--by Republicans?!

2005-06-12T02:56:00.000-07:00

Something that is not much talked about is how the Republican leadership in the Senate is trampling on a long-held tradition of that chamber--and I'm not talking about the filibuster battle (which is likely only on hiatus until a Supreme Court vacancy occurs).

Federal circuit courts are districted geographically, and so each comprises a number of states. Further, federal law directs that each state in a given circuit be represented by at least one judge on that circuit's court. Interpretation of 28 U.S.C. section 44(c) has established that seats are reserved for each state to ensure fair representation of states' laws. Because the confirmation process happens in the Senate, these elected representatives speak for their own states, and have been accorded the privilege of unilaterally blocking a nominee from getting an up-or-down vote. For example: If one senator from North Carolina disapproves of a presidential nominee who will fill a North Carolina-allocated seat on his/her circuit, s/he does not return the "blue slip", and that nominee doesn't come out of committee for a floor vote.

At least, that's how it worked when Clinton was the nominating president. But no more:

The Fourth Circuit: Under Clinton, despite a large number of unfilled vacancies, Senators Jesse Helms (R-NC) and Strom Thurmond (R-SC) refused to allow hearings or votes on several Clinton nominees, supported by then-Chief Judge J. Harvie Wilkinson. The only two nominees the Republican-controlled Senate confirmed to that court included one originally appointed by President George H.W. Bush (41). But George W. Bush (43) heard a different tune from Senators Helms and Thurmond; the new president nominated former Helms aides Terrence Boyle and former Thurmond aide Dennis Shedd (confirmed), and re-nominated Roger Gregory (VA, confirmed), plus Allyson Duncan (NC, confirmed), Claude Allen (VA) and William Haynes (VA).

The Sixth Circuit: Then-Senator Spencer Abraham (R-MI) refused to allow two of President Clinton's nominees to the Sixth Circuit to advance from committee. Despite repeated entreaties from not only fellow Senator Carl Levin (D-MI) but also the Chief Justice of the Sixth Circuit, Abraham stood on his traditional privilege, and it was accorded him by Sen. Orrin Hatch (R-UT), then-chair of the Judiciary Committee. Senator Hatch, and now current Judiciary Committee Chair Arlen Specter (R-PA), have negated the respect so recently accorded to this Senate tradition by advancing all of President Bush's nominees to the Sixth Circuit over the "blue slip" objections of not one, but both of the Michigan senators. Senators Carl Levin (D-MI) and Debbie Stabenow's (D-MI) offers to set up a bipartisan commission to negotiate a compromise have been rejected. According to the Alliance for Justice, McKeague and fellow Michiganders Richard Allen Griffin and Henry Saad are "the first three nominees ever to be granted a hearing over the objections of both home-state senators."

"The effect of these investigations by the press, the courts, and congressional committees was profound"

2005-06-11T21:48:00.000-07:00

The recent revelation that W. Mark Felt, former #2 man at the FBI, was the "Deep Throat" whose information helped Washington Post reporters Woodward and Bernstein on the stories that exposed Nixon for what he always claimed not to be--a crook--might seem a bit far afield from the issue of what kind of ethics members of the federal judiciary rule by. However, the fantastic and historically expansive piece in Newsweek ("A Long Shadow" by Evan Thomas, June 13 edition) on the impact then and the meaning now of Felt's disclosures, puts it quite starkly: "Watergate did not just spell the end of the Nixon presidency. It started a chain reaction of investigations and prosecutions that eventually exposed all manner of secret wrongdoing by the FBI and the CIA: black-bag jobs, illegal mail opening and CIA plots to assassinate foreign leaders. The effect of these investigations by the press, the courts, and congressional committees was profound."

While the article makes clear that in some cases it seems the government intelligence and military branches have become too cautious as a result, it raises the important issue of the treatment of executive privilege, which presidents can and have used as a reason not to share information or evidence with inquiring parties, especially Congress and the judiciary. In the article, Thomas does not shrink from drawing a line between Nixon's tarnishing of executive privilege, which he tried to use to conceal his careerist wrongdoing, and the current administration's determination to assert it: "There is no doubt that Bush wishes to expand executive power, to restore it to pre-Watergate days. Vice President Cheney has been particularly outspoken about guarding the prerogatives of the executive. At press conferences (most recently this week), Bush has shown a kind of casual disdain for Congress and the press, his two main foes in the Washington power game."

One of the questions we raise about the nominees to the federal judiciary concerns their professional ethics. Two nominees who were just confirmed, Pryor and McKeague, have long-standing ties to the Republican party and in particular to its leaders. Would they have the guts to challenge a claim of executive privilege where it is merited? For that has been the basis of, for example, Cheney's refusal to disclose the notes of the meetings he had with former Enron executives about energy policy. Would they support Congress should that body feel it necessary to perform their Constitutional duty to check the Executive Branch's exercise of power through an investigation? Another nominee, Henry Saad, has a record of holding the right of privilege (e.g. between doctors and patients, lawyers and clients) to such a strict standard that even in cases where both the plaintiff and the defendant have already viewed the documents legally, he ruled them inadmissable to prove, for example in a labor-laws dispute, that a nurse was made to perform tasks she should not have been.

Another relevant concern is the fate of various provisions of the P.A.T.R.I.O.T. Act (let's not forget, it's an acronym, not to be confused with actual patriotism). It occurred to me that perhaps the administration is fighting so vigorously because the post-Watergate spotlight made the kind of activities formerly undertaken by the FBI and CIA more difficult--because they were illegal. Their solution: legalize it. Here as well, we will need a judiciary that is independent from the political power brokers, whoever they may be, to protect our Constitutional rights. We all want to be as safe as possible, but at the price of losing our identity as a nation that protects and cherishes the rights enshrined in our founding document? Surely not.

Two More

2005-06-09T21:30:00.000-07:00

Two More of bush's judicial nominees made it through, bringing the total to five since the deal to stop the "nuclear" option went through. Richard Griffin and David McKeague were both apointed 6th Circuit Court of Appeals, confirmed with 95-0 and 96-0 votes respectively. Thankfully, the filibuster on William Myers, a nominee with no experience as a judge, is expected to hold.

It is yet to be seen, who the president will try to push through when a seat opens up on the supreme court, but hopefully his choices will be much more wise and a little less partisan.

William H. Pryor confirmed

2005-06-09T18:11:00.000-07:00

In an interesting vote today, Judge William H. Pryor, allowed to get past a filibuster by virtue of the compromise, was confirmed. The vote was 53-45.

The New York Times explains the vote breakdown:

"Three Republicans voted against confirmation - Senator Susan Collins and Olympia Snowe, both of Maine, and Lincoln Chaffee of Rhode Island. Two Democrats voted in favor - Senators Ben Nelson of Nebraska and Ken Salazar of Colorado. Two senators did not vote - James Jeffords, Independent of Vermont, and Lisa Murkowski, Republican of Alaska."

Had the Democratic caucus voted together, with the power of Jeffords and Murkowski, Judge Pryor still would've been confirmed by a 51-49 vote. It would've have been the closest vote yet for a Bush judicial nominee.