an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why Democratic Senators Should Vote "No" on Roberts
I've been asked to post here something that summarizes my argument, made at the American Constitution Society event at Georgetown University Law Center [corrected 5:55 PM], that there is no reason for a Democratic Senator to vote to confirm Judge Roberts's appointment as Chief Justice.
First, I want to get a couple of things out of the way. (1) To say that a Democratic Senator has no reason to vote to confirm Judge Roberts is not to say that such a Senator has a reason to filibuster the nomination -- even if every Democratic Senator ended up agreeing with my argument and thereby made it possible to sustain a filibuster under the present rules. Whether filibustering is a good idea or not is a separate question, on which I express no view here.
(2) I have picked up from news reports a sense among Democratic Senators that, put crudely, each one has a limited number of "No" votes he or she can cast. Put more formally, the idea appears to be that each "No" vote is an expenditure of some political capital, and depletes the stock. I confess that, to an outsider, that's a puzzling proposition. A "No" vote might be thought of as an investment in building capital, for reasons I'll get to. But, as I've been told, there may be a reason (other than the fact that I live in the District of Columbia) that those people are Senators and I'm not.
Now, the argument: First, Democrats should disagree with what they know about Judge Roberts's vision of the Constitution (or his constitutional philosophy, or his judicial ideology -- pick your term, so long as it's not confined to your evaluation of his position on a few specific cases). Second, every Senator should have a reason for voting to confirm a nomination, and neither the fact that the President has picked the nominee nor the fact that a person is a talented lawyer with an appropriate judicial temperament is a sufficient reason to overcome disagreement with the nominee's vision of the Constitution (and, to pin it down, at this point there's nothing on offer to overcome that disagreement other than deference to the President's choice and Judge Roberts's talent and temperament).
On the first point, we know that Judge Roberts was a quite conservative young lawyer, given to comments and asides that indicate a cast of mind that ought to trouble a Democratic Senator. These comments and asides cover a range of issues, including women's rights, what Roberts called the so-called right to privacy, affirmative action, and the affiliations of those in the United States who opposed apartheid in South Africa. They were the comments of a young lawyer, but the question for Democratic Senators today is whether now-Judge Roberts still thinks what he used to think. (We can be sure that he'd be smoother in his presentation of his positions today, but what Democratic Senators ought to care about is what those positions are, to the extent that they illuminate his vision of the Constitution.)
It seems to me that Democratic Senators ought to place the burden of persuasion on Judge Roberts to provide some indication that his current vision of the Constitution is different from the vision that emerges from an evaluation of what he had to say as a young lawyer. People do change, but Democratic Senators ought to seek evidence of a change, and not simply assume, or hope that it has occurred. (That's the real, and reasonable, justification for the Senators' effort to obtain evidence from a later period that would flesh out their understanding of the vision a more mature Judge Roberts had of the Constitution.) Unless something comes out at the hearings that overcomes the presumption that Judge Roberts continues to have a vision of the Constitution with which Democratic Senators should disagree, they should conclude that they disagree with his current vision of the Constitution.
So, the question becomes, Are there reasons for voting to confirm a nominee who has a constitutional vision with which you disagree? As far as I can tell, the only reason people have suggested for doing so are that Senators should generally defer to a President's choice -- from among the universe of possibilities -- as long as that choice is truly qualified as a lawyer, meaing, as the jargon has become, that the nominee's vision of the Constitution is not outside the mainstream.
My argument does not require those who vote "No" to assert that the nominee's views are out of the mainstream or are "too extreme" in some absolute sense. All they have to do is disagree with the nominiee's vision of the Constitution. The President canvassed a wide range of considerations in selecting the nominee. The Constitution makes the Senate a co-equal partner in the judicial selection process, and Senators are entitled to canvass exactly the same range of considerations the President did, including the nominee's vision of the Constitution. (Sometimes those who argue for limiting the Senate's role to checking whether the nominee is minimally qualified trot out a quotation from Alexander Hamilton in the Federalist Papers to that effect. I would note that the conservative members of the Supreme Court have been happy to disparage Hamilton as the most pro-nationalist of The Federalist's authors when they defend states' rights, and that Hamilton was also the most monarchist of those authors.)
If the principle of equality between the President and the Senate is correct, it should be enough to support a "No" vote that a Senator finds the nominee's vision of the Constitution to be disqualifying, just as the President found that vision to be a qualification.
After that, the only questions are ones of practical politics. Sometimes it's suggested that voting "No" on Judge Roberts will only get you a worse nominee next time. Obviously, with respect to the position currently at issue, that's not true if the ultimate vote is along party lines. What about the next nomination? Well, if someone with Judge Roberts's vision of the Constitution is confirmed with 40 "No" votes, it's hard to see why the next nominee, with a "worse" vision of the Constitution, would get fewer votes in opposition. And the President might have to worry that a nominee who is worse from the point of view of Judge Roberts's opponents would be worse as well from the point of view of some Republican Senators. I don't see why voting "No" now would make Democrats worse off next time.
Related to this, I think, is the "turnabout is fair play" argument. That is, a Democratic Senator might think, "Well, if I vote No on Roberts because I disagree with him, that will give Republicans permission to vote against future nominees from a Democratic President because they disagree with that nominee's vision of the Constitution." On this, two points: (1) There's no bargain here that anyone can enforce. That is, the fact that Democrats today restrained themselves can't stop Republicans in the future from voting "No" because of disagreement. There may be implicit norms of Senate conduct and reciprocity that might come into play -- I wouldn't know about that -- but I do note that we're talking about what Republicans might do no earlier than 2009, and we don't even know who those Republicans are going to be.
(2) And, maybe more important, it's not clear to me that turnabout would be such a bad thing. Today's "No" vote is designed to signal that the President ought to move toward the center with his nominees. As a matter of sheer preference, I'd like it if a Democratic President would be able to nominate and get confirmed someone pretty liberal. But, frankly, it seems to me unlikely. Pressure on such a President to move to the center with a nominee wouldn't be so obviously bad, from my point of view.
OK Mark. Your view is that simple disagreement with a nominee's vision of the constitution is perfectly legitimate grounds to vote no, a view that you profess to favor.
I will save this post and remind you of it when the day comes that there is a democrat in the WH. Because what you are saying is that it is perfectly legitimate for a party opposite to just never confirm a judge who's view of the constitution they disagree with. Thus, all a party has to do is control the senate and they need never confirm an opposing party's judge.
If those are the ground rules, you should not only be prepared to live with the consequences, you actually favor them. Unless of course you are saying this now as a partisan rationalization and not out of principle.
Mark, Justice Breyer was confirmed by an 87 to 9 vote, and Justice Ginsburg by a similar margin. Were the Republicans who voted for them incredibly hoodwinked by verbal legerdemain on the part of the nominees (which seems unlikely, looking at their hearings footage), or was judicial philosophy simply not seen as more relevant than qualification at those times?
I would argue that not a single Republican should have voted for Justice Breyer or Ginsburg, because I agree entirely with you - no sarcasm intended - that there is no more important issue for someone going on to the Supreme Court than their judicial philosophy. Frankly, knowing what I know today about John Roberts, I would vote against him, because he appears to be a conservative, but no originalist. He is not what the President promised us, unless by "Scalia/Thomas" types, Bush meant "conservatives" rather than "originalists". If this is the case, I would suggest that many of those who lionize those Justices know even less about their views than those who demonzize them.
But anyway, do we presume that, when the next Democrat President sends a nomination to the Supreme Court, it is fair game for the Republican majority to reject that nominee the moment it becomes evident that they disagree with whatever that majority's view of the constitution might be?
What is the originalist view of "advice and consent"? What is the conservative view of "advice and consent"? What is the liberal view of "advice and consent"? How do voters today understand the "advice and consent" role and how does this differ from the past? How do the Senators view their "advice and consent" role presently and how has this differed in the past? Analyses of past Senate voting on judicial nominees does not seem to provide an answer, except that politics is involved. How much deference should the Senate provide to the President? How much information should Senators insist upon concerning a nominee? How intensively should Judicial Committee Senators question a nominee to learn more about her? How important is the Senate vote on a nominee vis-a-vis the other priorities of the Senate, especially during critical times of war and terror and poverty and natural disasters? I would hope that each Senator would address these issues, and more, before casting a vote. But to paraphrase the Inspector in a closing scene in the movie Casablanca, "This is Washington, D.C." In the end, it is politics as usual.
Prof. Tushnet's argument is as fine an example of the fallacious begging the question as I've seen. He says without demonstration that the Constitution makes the President and the Senate co-equals in the selection process. Suppose I can keep throwing choices at you and you can keep vetoing them. To an outside observer, does it appear that we are co-equal. Or am I now the one begging the question?
Roberts should be opposed for a chilling lack of understanding of the independence of the judiciary. He blantly interviewed with the President and his staff for the Supreme Court job while ruling at the same time as an Appeals Judge on that same President's power to decare by a Bill of Attainder one an "eneny combantant" thereby depring that person of all their rights to counsel, civil trial, fairness, etc. It's lack of an independent judiciary not activist judges that's the propblem. Rehnquist and Scalia had blatant conclicts with their families in Bush vs Gove and Scalia again with Cheney in the energy case, but they were never held accountable on these judicial ethics violations. If they can't respect the independence of the judiciary, no one will respect their decisions. It's as simple as that.
Back when I was nominated (1976) in the Advice and Concent process I had to first clear a "Merit" Selection Committe. 9 people, 3 picked by the Senators, 3 by the public, 3 by the Bar. I guess too many political cronies couldn't pass the "merit" test so the idea was dropped. It might have saved us from a Brown and Chertoff, and a few lives.
Dang. I notice that Blogger has replaced my elegant em-dashes with question marks. Must be a liberal plot.
A question for you, Professor: Are you comfortable with the prospect that the Senate is often controlled by the party out of the White House? If your prescription treats both goose and gander, it would seem that during those years, either the President as (ahem) co-equal partner would have to make repeated recess appointments, or everyone would have to see the Court's active membership dwindle, perhaps quite substantially and in a way that itself might become outcome determinative.