Saturday, May 03, 2003


Is Bush v. Gore Sauce for the Goose?

At the end of his discussion of the appointments process, Juan Non-Volokh adds this interesting point, which I cannot resist commenting on:

[M]any of those on the right (myself included) see Bush v. Gore as the Warren/Brennan legacy coming home to roost. For decades, liberals generally supported an activist court that discovered constitutionally protected rights and discarded traditional restraints on an activist judiciary (e.g. much of the political question doctrine, as in Baker v. Carr). In the view of many on the right, the Constitution was "taken over by ideological extremists" during this period. (Nonetheless, the response was not to shut down President Carter's nominees, but to wait until more conservative judges could be nominated by a sympathetic president.) Therefore, when we hear Balkin or anyone else inveigh against Bush v. Gore, our gut reaction is to say "Well now you know how we felt about [insert Roe, Baker, Miranda, or some other outrageous case here]." So while I agree with Balkin that those on the right should try and appreciate the outrage of left over the election, I would also suggest that those on the left should try and appreciate that the right feels the left is simply reaping what it sowed.

I've heard this argument many times since Bush v. Gore was decided. I take the point, but I also think that the it's also a bit misleading in two ways.

First, there is an important distinction between Bush v. Gore and liberal decisions like Roe, Miranda, and Baker v. Carr. It is the difference between "high" politics and "low" politics. Here I will simply quote from my Yale Law Journal article:

Bush v. Gore was troubling because it suggested that the Court was motivated by a particular kind of partisanship, one much more narrow than the promotion of broad political principles through the development of constitutional doctrine. The distinction is between the "high" politics of political principle and the "low" politics of partisan advantage. The same five conservative Justices who formed the majority in Bush v. Gore had been engaged, for over a decade, in a veritable revolution in constitutional doctrines concerning civil rights and federalism. In those decisions, the five conservatives had been promoting a relatively consistent set of ideological positions like colorblindness, respect for state autonomy from federal interference, and protection of state governmental processes from federal supervision. But the decision in Bush v. Gore did not seem to further those values, at least not directly. Rather, the five conservatives seemed to adopt whatever legal arguments would further the election of the Republican candidate, George W. Bush. This is the "low" politics of partisan political advantage. Although few legal academics these days are shocked to learn that Justices' decisions are "political" in the sense that they promote "high politics"-larger political principles and ideological goals-they were quite disturbed by the possibility that Justices would use the power of judicial review in so prominent a case to promote the interests of a particular political party and install its candidates in power.

When we look at the decisions of the Warren Court and early Burger Court, most of them do not seem to be examples of Justices engaged in "low" politics-- making decisions that will help Democrats win future elections. Rather, most of them are examples of "high" politics-- promoting a liberal ideology. Indeed, many of the most famous liberal decisions of this era, including Miranda, Roe, and the busing case, Swann, actually harmed the Democratic party's electoral chances, because they made the Supreme Court a convenient target to run against. Both George Wallace and Richard Nixon used the Warren Court as a convenient foil in their campaigns, and so would many other conservatives in the years following. So Bush v. Gore seems to me to pose a quite different problem of judicial misbehavior than Miranda or Roe. It's not just a case of Justices "making stuff up" in order to promote a conservative ideology through the development of judicial doctrine. It's Justices "making stuff up" in order to put Republican candidates in office. In fact, the majority opinion in Bush v. Gore doesn't really promote any important values normally associated with conservative causes, and the most badly reasoned parts of the decision, the initial stay and the remedy-- stopping the counts instead of remanding for further proceedings consistent with the Equal Protection Clause-- don't have any particular ideological spin at all. They are simply unsupportable exercises of judicial discretion. This is not what liberal decisions of the 1960's sowed, for the liberal decisions in the 1960's could not plausibly be understood as attempts to boostap Democrats into office; indeed, they were done precisely with the expectation that many of them (like Miranda) would not be popular and would precipitate a backlash. Certainly Baker v. Carr did not immediately help Democrats, for it actually undercut the power arrangements that had propped up in the largely Democratic one party South. And anyone who thinks that Roe and the busing cases were thinly veiled attempts to get more Democrats elected to office has been smoking something very strong indeed.

Thus, conservatives might well object to the revolutionary work of the Warren Court, but that objection is somewhat different than the objection that liberals might have to Bush v. Gore. Here let me quote a passage from a Virginia Law Review article that I wrote with Sanford Levinson:

The distinction between high and low politics is important because it suggests two different sorts of criticisms that one might make about the Court’s behavior during a period of constitutional revolution. As we shall argue in more detail later on, constitutional revolutions always concern “high politics”—the promotion of larger political principles and ideological goals. This was true during the New Deal and it is true today. Thus, one might criticize [the Court's recent federalism decisions] because one disagrees with the political principles of the five conservatives, which, one believes, are false to the best understandings of the Constitution.

But the objection to Bush v. Gore is quite different. The result in Bush v. Gore is not easily explained as the promotion of principles of “high politics.” The five conservatives were the least likely, one would think, to extend the Warren Court’s equal protection doctrines in the area of voting rights. Indeed, one member of the majority, Justice Scalia, is on record as opposing novel interpretations of the Equal Protection Clause that undermine traditional state practices. It is hard to imagine that if the parties had been reversed—and Vice-President Gore had been ahead by 537 votes—the five conservatives would have been so eager to review the decisions of a Republican Florida Supreme Court that was trying to ensure that every vote had been counted. The unseemliness of Bush v. Gore stems from the overwhelming suspicion that the members of the five person majority were willing to make things up out of whole cloth—and, equally importantly, contrary to the ways that they usually innovated—in order to ensure a Republican victory and keep their constitutional revolution going. It was obvious to everyone—including the Justices—that many of the key cases in this revolution have been decided by a bare 5-4 majority, and that the party controlling the White House in the next decade would determine the fate of the revolution. Conservative Justices would propel it forward; liberal Justices would curtail or unravel it. With a Republican in the White House, conservative Justices could retire with the expectation that they would be replaced by persons of like mind. If one of the more liberal Justices left the Court, the conservative majority might even increase.

Even if these thoughts never entered the mind of any of the Justices, the circumstances of the decision created the appearance of a conflict of interest and a strong inference of impropriety. The Justices could have avoided the appearance of a conflict of interest by simply remaining out of the fray, but they seemed altogether too eager to get involved. Had Bush v. Gore been an easy case involving clear precedents and rigorous legal argument, one might put some of these concerns to rest. But Bush v. Gore is so shoddily argued and so badly reasoned—from the initial stay on December 9 through the bizarre chain of reasoning that justified the remedy —that it is almost impossible to believe that the best explanation of the result is the internal logic of the law. The case is not only unpersuasive; it is an embarrassment to legal reasoning.

To be sure, the Justices who have spoken out since the decision was handed down have denied that any political motivations or calculations were involved. Justice Thomas, for example, has insisted that the Court has never been motivated by partisan considerations during his time on the bench, that the last political act that Justices engage in occurs during their confirmation hearings, and that he never thought about the political result in Bush v. Gore but was concerned only about the proper implementation of the law. But the more the Justices offer these protestations, the more unbelievable they seem. There is no reason to believe them unless one credits the notion that members of the judiciary are almost altogether different from other Americans who have succeeded in the political world and that they have no agendas of their own or any desire to leave a “legacy” in their decisions.

The claim that Bush v. Gore allows liberals finally to "know what it feels like" is misleading in another respect. The argument seems to assume that until Bush v. Gore the liberals were basically in control, that all of the judicial shenanigans one might have complained about in the 1980s and 1990's were liberal decisions. It makes it sound as if there has been no conservative judicial activism in the recent past, and that conservatives have been repeatedly victimized by an unreleting stream of liberal decisions from the moment that Earl Warren ascended to the bench to December 12, 2000. This is fantasy. Earl Warren has been dead for over thirty years. The Democrats got no Supreme Court appointments from 1967 to 1994. From the retirements of Warren and Fortas to the present day the Supreme Court has become increasingly conservative, and has been in a relatively continuous conservative retrenchment in a whole host of areas, including criminal procedure, the rights of the poor, and race relations. Anyone who has actually been following what the Court has been doing must have noticed that Brennan and Marshall started to write a whole lot of dissents starting in the early 1970's, and they didn't stop. They kept on losing. And losing. And losing. And losing, in a whole host of areas.

There are two big exceptions to this trend. Both have to do with women. The first is Roe v. Wade. The second is the creation of equality jurisprudence for women. However, I take it that when conservatives complain about liberal judicial activism, they are not saying they are very upset that women are now protected from discrimination. (Bush v. Gore-- ha! Now you liberals know what we felt like when women got equal rights!) They are mostly complaining about Roe, and the fact that it hasn't been overruled. That's fair enough, although one must admit that Casey cuts back considerably on Roe and cases like Akron and Thornburgh.

But the more important point is that, particularly in the decade since Clarence Thomas was appointed, the conservative Justices have been striking down statute after statute using what, from a liberal perspective, is just made up stuff. Those decisions, particularly in the federalism area, and not Bush v. Gore, are really the sauce for the goose that Juan is talking about; they, and not Bush v. Gore are the demonstration to liberals of what it is like to be on the wrong side of a constitutional revolution. My point is that those sorts of decisions have been coming out of the Supreme Court of the United States for a very very long time. To pretend that they have not is to pretend that conservatives haven't been controlling the courts, and winning most of the battles for quite a few years now.

The idea that liberals never understood this until Bush v. Gore, and that now, finally, they are getting their righteous comeuppance, is bizzare. Anyone with a leftist sensibility, and any sense of history, knows that the Supreme Court has rarely been a liberal institution. It has always been an elite institution, but throughout most of its history it has been run by conservative elites. From the larger historical perspective, the Warren Court was just a blip on the screen. Knowing this, it is hardly surprising that progressives, not conservatives, have argued for judicial restraint at many points in the Nation's history. For the past decade at least, progressive scholars have been increasingly critical of judicial supremacy and what they see as conservative judicial activism run riot. Bush v. Gore was not the wakeup call; if anything, it simply confirmed what progressive constitutional scholars had known for some time: If you hand the Supreme Court over to people on the opposite side of the ideological spectrum, they will do lots of things that you think are very bad to the Constitution. They will do this both through upholding government actions that should be struck down as unconstitutional, but equally importantly, they will do this by striking down laws and policies that should be upheld.

Thursday, May 01, 2003


A Fight Over Judicial Nominations in Extraordinary Times

Responding to my previous post on the judicial appointments process, Juan Non-Volokh points out that following the Fortas nomination, Democrats blocked two of Nixon's appointees in the 1970's (although the case is somewhat different because the Haynesworth and Carswell nominations actually came to a vote) and that in 1986, when the Dems regained the Senate, they began a practice of slowing down judicial appointments in the last two years of both the Reagan and George H.W. Bush presidencies. Hence my claim that the Dems rolled over and played dead until the George W. Bush presidency is, in Juan's words, "just plain wrong."

It's not clear how much Juan and I disagree, since I was looking at the years from 1992 to the present, and he's looking at the period from 1968 onwards. My view is that slowing down of judicial appointments-- which both the Dems and the Republicans did before the Clinton Presidency, is within the rules of the game, as long as it doesn't go too far. In fact, an important part of the checks and balances that come from having a Senate with opposition politicians is that the Senate can put up some resistance to partisan entrenchment by the President's party with the goal of generating more moderate judicial appointments from the President. Whether Juan agrees with me or not on this, I continue to think that the contemporary Democratic Party has been much more passive than they should have been and the Republicans have had the zeal of a party that has been taken over by a social movement. My sense is that Clinton generally responded to Rebublican delaying tactics by nominating more moderate candidates and avoiding nominating too many liberals. George W. Bush has responded to Democratic delays by sticking to his guns and continuing to nominate candidates who are strongly ideological. By focusing only on the Senate's behavior, Juan has neglected how the separation of powers works-- how the President responds to challenges from the Senate. It takes two to tango, and it takes two branches of government to cause a train wreck.

Juan concludes:

If Balkin wants to claim that Democratic hardball in judicial fights is a response to the 2000 election controversy, he has to explain why Democrats were slowing down judicial nominations in the 1980s and early 1990s.

My explanation is that what the Dems were doing in the early 1980's and 1990s is part of ordinary politics. What the Dems have doing following the 2000 election-- particularly the Estrada fillibuster-- is extraordinary. Fillibusters on judicial nominations are rare. Don't get me wrong-- the Dems have confirmed a number of Bush's judicial appointments. But they have also fillibustered Estrada, and that is something you just don't see every day.

Juan doesn't like what either party has been doing, and he doesn't like fillibusters. By contrast, I'm somewhat more tolerant of delaying the most strongly ideological nominations by a President of the other party as a signal that the President and the Senate should come to an accomodation. In my view, that's part of the way that the two branches check and balance each other.

I guess that the biggest difference between Juan and myself is how to view the meaning of current historical events. Juan sees the current strife as an example of accelerating misbehavior by the two major political parties during a time of essentially normal politics. My view, by contrast, is that we are no longer in an ordinary period of constitutionalism. The election of 2000 was a trauma, an extraordinary constitutional event. To be sure, Bush could have diffused the trauma by nominating more centrist candidates, thus signalling that he would deal with the contested election by forging an accomodation with the other party. Instead, he pushed for strongly ideological candidates in order to complete a constitutional revolution. Not only did he do so without a popular mandate as Roosevelt had, but, in the minds of many Democrats (including myself, I might add), he did not even win the election. The Dems view this attempt to amend the constitution through partisan entrenchment as deeply unfair. They see the Constitution as in danger, about to be taken over by ideological extremists. They love the Constitution as much as the Republicans do, and they view the Constitution as under siege. That is what explains how a party of softies suddenly got a spine, and did what neither party has done for more than a generation. Extraordinary times lead to extraordinary measures.

I think that many folks on the other side of the political divide don't quite get how angry many Dems are about the election. They well understand that Dems are upset about losing the Presidency, but what they don't quite understand is that it's more than just being sore losers-- the Dems think that something *illegal* happened. They don't get how seriously many Democrats feel that our constitutional system has been hijacked by people they don't trust. The Bush Administration, in turn, has done little to reassure them that it will play nice or play fair, or that it will use its powers with restraint. Indeed, the Bush Administration has cultivated a reputation for taking no prisoners. (Or to put it another way, the only prisoners the Bush Adminstration takes are being held at Guantanamo Bay.)

If you look at current events from this perspective, I think you can see why the confirmation process has broken down. It has broken down because trust has broken down, and trust is what keeps the wheels of government working smoothly even when people have strong disagreements about public policy.

Wednesday, April 30, 2003


Why the Confirmation Process is Broken

I've said very little about the fights over Miguel Estrada and other Bush judicial nominees. Howard Bashman has had exemplary coverage of the issues for those who are interested. The decision by Democrats to fillibuster some nominations and hold up others is explicable in part by the fact that the Republicans did not behave themselves very well during the Clinton years. But I think something else is going on.

Generally speaking, much constitutional change occurs not through amendments under Article V but through interpretation by Article III judges. The best way to change the Constitution is through stocking the courts with your ideological allies, a process that Sandy Levinson and I call "partisan entrenchment." Some presidents make judicial appointments as political favors, or to reward friends. But some presidents consciously set out to restock the courts according to an ideological vision. Roosevelt's Supreme Court appointments, for example, were designed to give constitutional legitimacy to the New Deal. The sea change in constitutional understandings that occurred after 1937 is due less to the Court's famous "switch in time" in West Coast Hotel and NLRB v. Jones and Laughlin than to the fact that by 1940 Roosevelt had been able to replace several conservative jurists with New Deal acolytes. For better or for worse, this is how our Constitution changes.

Of the two major political parties, the Republican Party has been considerably more devoted to the goal of partisan entrenchment in recent years. That is because the conservative social movements of the past thirty years, which helped the Republicans gain repeated electoral victories, saw the federal courts, and particularly the Supreme Court, as liberal elite institutions out of touch with popular morality and American values. For this reason, Reagan and the two Bushes have tended to value ideological purity in judicial appointments somewhat more than Clinton did. Republicans, or at least the hard right of the party, really cared a lot about judicial appointments, and wanted to change the Constitution to their way of thinking. To a considerable extent they have succeeded, but not in all respects. There is still a great deal more work to be done.

The Republican strategy of delaying Clinton's appointments was part of this crusade to remake the courts. Many Republicans didn't think Clinton deserved to be president in the first place, and they quickly recognized that he could be pushed around. So they fought hard to keep many of his nominees from getting a hearing. And they succeeded in a number of cases. Elena Kagan, who is going to be the next Dean of the Harvard Law School, was nominated to the D.C. Circuit, but never got a vote. (Incidentally, had she gotten a chance, President Bush would not have been able to nominate Miguel Estrada to fill the same vacant slot on the D.C.Circuit.)

Until the Bush Presidency, the Democrats tended to roll over and play dead when the Republicans played hardball on judicial appointments. Why did things change? The reason is simple: The election of 2000 infuriated their base and convinced many Democrats (yours truly included) that a serious miscarriage of justice had occured (more about that here). Five conservative justices on the Supreme Court had handed the Presidency to the man who would appoint more conservative Republicans to be their colleagues and successors. Once Bush took office, he made clear that he would not govern from the center; rather he would govern from the right, and his judicial appointments contained many strongly ideological conservatives. It became clear to the Democrats that the Republican agenda of stocking the courts with strongly conservative ideologues would continue apace, and even be accelerated during the Bush administration.

The view among many Democrats was that the election had been stolen, and thus the power to appoint judges and Justices had been improperly given to the Republican Party by five conservative Republican Justices. Most Democrats in the Senate did not openly talk this way, since they well understood that the public did not want a continual rehash of the election, particularly after 9/11, but they thought it nevertheless. And many were particularly incensed that Bush would use the legitimacy he gained as Commander-in-Chief arising out of 9/11 to push for strongly ideological appointments to the judiciary. For this reason they thought it important to indicate to the Republicans that they would resist what they regarded as the most egregious appointments at the circuit court level. In other words, I think that the broken down judicial appointments process is not just payback for Orrin Hatch's stonewalling during the Clinton years. I think it is also due in part to outrage at the election, and outrage at the Supreme Court's apparent conflict of interest in handing the Presidency to the party that the members of the Court's five-person conservative majority preferred.

If, as I suspect, the 2000 election is an important, although unspoken part of the story of judicial appointments, then we can expect that there will be a particularly vigorous fight over the next Supreme Court nomination, particularly if the person who retires is a swing Justice like O'Connor or a moderate-to-liberal like Stevens. Many Democrats do not want the five conservatives on the Supreme Court to get away with what they regard as a particularly atrocious deed. Republicans can pretend that Democrats have put this aspect of the past behind them, as Republicans themselves have. But this sort of trauma inflicted on one of the two major political parties does not go away so easily.

I have said before that election of 2000 is like Poe's tell-tale heart. Many people think that the election is ancient history. But in my view the election, and the felt sense of grievance by many Democrats, frames a great deal that is occuring between the two parties today, particularly on judicial appointments.

The Democratic Party was originally assigned the donkey because the donkey was thought to be rebellious and the Democrats were the party of the secessionist South. The Republican party was assigned the elephant because they had long memories about the Civil War, and the joke was that they never wanted people to forget about what the Democrats did. I think that the mascots probably should be reversed now. The Republicans have become the stubborn rebellious mules, and the Democrats are going to be the ones with the long memories.

Monday, April 28, 2003


Is a "Strong and Decisive" Leader a Good Leader?

David Broder argues in an essay in the Washington Post that Democrats can't attack Bush on leadership, which is his "strong suit." Opinion polls repeatedly suggest that the public believes that Bush is a "strong and decisive leader" and support him for that reason.

It is evident that the event that defined Bush as a strong and decisive leader was the terrorist attacks of Sept. 11, 2001. A month earlier, only 55 percent of Gallup respondents attributed those traits to him. A month after the assault on the World Trade Center and the Pentagon, it had jumped to 75 percent -- and it has basically stayed at that stratospheric level.

It appears that 9/11 did for Bush what the assassination attempt that Ronald Reagan survived and almost laughed off did for his reputation, barely two months into his presidency in 1981. That event formed an indelible impression of Reagan in the minds of millions of voters and gave him an almost mythic dimension that withstood recession, scandal and controversy.

Almost everything Bush has done since becoming president has been designed to create a similar sense of steadfastness. His pursuit of adversaries in Afghanistan and Iraq is of a piece with his persistence in pressing for passage of big tax cuts and confirmation of conservative judges here at home.

It is not surprising that many people respond positively to Bush's decisiveness. When times are tough, it is nice to know that the people in charge have a plan and will stick to it come thick or thin. But strong and decisive leadership is not necessarily the same thing as good leadership. If the President is headed in the wrong direction and won't listen to reason, then the same characteristics of perseverance that seem admirable may actually be quite harmful for the country. It is true enough that George W. Bush is no Jimmy Carter. He doesn't obsess about details (indeed he doesn't even bother to master them) and he has absolutely no problem with making firm decisions, sticking to his guns, and refusing to compromise. However, as I mentioned in a previous post, a person can fail to be up to the job of President not because he is too reticent and weak-willed, or because he freezes in a crisis, but because he overreacts and pushes too hard and too fast at the wrong times. George W. Bush’s failings are not neurosis and indecision. They are stubbornness, tunnel vision, narrowmindedness, over-aggressiveness, belligerence, and hubris.

Moreover, the appearance of steadfastness may be illusory. Although Bush routed the Taliban in Afghanistan, a year later the country is in shambles and has fallen off the radar screen of public attention. The Administration has simply not carried through on its promises here; instead, it has diverted public attention to a war with Iraq. Moreover, refusing to compromise is not necessarily a virtue if a leader won't have to suffer the consequences of the course he chooses or pay for his mistakes. Bush's determination to cut more and more taxes for the wealthiest Americans is going to create long term problems for the nation's fiscal health that may emerge many years after he leaves office.

The problem with a decisive president like George W. Bush is that he may decisively get the country into a whole series of messes that his successors will have to clean up. In a sense, this is a familar pattern in Bush's personal history: He takes risks, acts foolishly and aggressively, gets into trouble, and then somebody else cleans up his mess. But this time he is not simply the owner of an oil company or a baseball team. He is directing the domestic and foreign policy of the most powerful nation on earth. If he makes a mess this time, it may be a very big mess indeed.

But at least we will have the comfort of knowing that he never lost a night's sleep about it.