Friday, September 09, 2005
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.
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.
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.
Prof. Tushnet, my fond and bemused take — as one of your former students from long, long ago who also blogs about law and politics from time to time — is here. Hope you're doing well, sir!
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.
Well, Justice Breyer could be considered a moderate certainly, but I'm somewhat interested in what Professor Tushnet would consider a "real liberal," if Justice Ginsburg does not qualify.
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