Balkinization  

Wednesday, September 12, 2007

Presidentialist Lawyers in Black Robes

Charlie Savage

(This is Charlie Savage again. Here is another cross-post from TPMCafe's book salon. In addition, my first post there earlier this week, entitled "The Cheney Project" prompted a piece about "master narratives" in PressThink. Since I did not cross-post that first posting here, I link to it in case anyone is interested even though it is less legalistic in nature. Thanks again for reading.)


Today I’m going to talk about the Supreme Court, and how the Bush-Cheney legal team’s strategy of picking presidential lawyers to fill court vacancies has been an integral part of the groundwork it has laid for a long-term expansion of White House power. The following information is just a taste of the things that I learned during my research at the National Archives and elsewhere. Much more, with full context and color and detail, may be found in Chapter 11 of my book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.

In 2005, when President Bush nominated John Roberts, Harriet Miers, and then Samuel Alito to fill the first two Supreme Court vacancies in a decade, observers outside the executive branch largely evaluated the nominees through the lens of social issues such as abortion rights. Lost amid the hubbub (especially for the first two nominations, which concluded before the warrantless wiretapping program came to light and before Bush issued the torture ban signing statement) was what I believe to be an essential factor behind all three nominations. There was a broad array of prominent and very conservative legal scholars and lower-court judges from which the Bush-Cheney legal team could have selected its nominees. Tellingly, the administration chose all three from a very narrow slice of the conservative legal universe: all three were executive branch legal warriors. They had each spent years marinating in disputes over expanding executive powers from the White House’s perspective, and were thus likely to bring a very deferential attitude to the bench when future lawsuits arose over aggressive claims of presidential authority.

***

John Roberts got his start as a law clerk to then-Associate Justice William Rehnquist in the 1980-81 term. Rehnquist authored (and Roberts likely helped draft) the most important decision handed down that year. It backed Jimmy Carter’s claim that he had inherent constitutional power to shut down lawsuits that were authorized by a federal statute (the case concerned attempts by businesses to seize Iranian assets as compensation for nationalized property). Later, after young Roberts joined the Reagan administration, he cited this opinion approvingly in several internal memos, and in one memo I found, Roberts demanded that Bruce Fein remove the case from a paper in which Fein had listed it among a “rogue’s gallery” of decisions based on a false constitutional premise. After the 1983 INS v. Chadha decision striking down legislative vetos, Roberts attacked colleagues who failed to interpret the decision in the way that would support the maximum possible result for presidential power. He also endorsed an early version of what became the Unitary Executive Theory, writing in 1983 that “I agree that the time is ripe to reconsider the Constitutional anomaly of independent agencies.” Following Reagan’s invasion of Grenada, Roberts wrote a letter to retired Supreme Court Justice Arthur Goldberg insisting that the unilateral military action was not unconstitutional because the president has “inherent authority in international affairs to defend American lives and interests and, as Commander- in-Chief, to use the military when necessary in discharging these responsibilities.”

Roberts was also a passionate supporter of executive secrecy, once editing out the phrase “freedom of information” from a colleague’s draft and explaining that its use in a positive light might imply support for the Freedom of Information Act. He was especially angry about the Presidential Records Act of 1978, a post-Watergate reform which mandated that all White House records, including confidential advice to the president and with only narrow exceptions for classified material, be made public 12 years after an administration leaves office. He repeatedly, but unsuccessfully, urged a lawsuit challenging the law as an unconstitutional infringement on the president’s secrecy powers.

Later, as an appeals court judge, Roberts voted to re-hear en banc a decision in the Cheney energy task force papers case that had gone against the vice president. In a case involving Bush’s power to dismiss lawsuits against Iraq by a group of Gulf War veterans who had been captured and tortured, Roberts alone on a three-judge panel sided with the president’s claimed power, writing in his dissent that so long as “the President’s interpretation of [the law] is at least a reasonable one,” the courts should defer to it. And in the spring of 2005, as he was interviewing with White House officials for a potential Supreme Court vacancy, Roberts sided with the White House in the Hamdan case, saying that a president need not consult with Congress when setting up military commissions, and that he has the power to declare that the Geneva Conventions do not apply to wartime prisoners he does not want the treaty to protect.

Less can be said about Miers, whose record was far sketchier. She had no prior history in constitutional law before coming from Texas to Washington with Bush in 2001, a deficit that helped conservatives sink her nomination by accusing her of being totally unqualified for the position. But Miers had spent years working for Bush alongside lawyers such as David Addington, surely absorbing their views. She herself said as much. In her final Senate questionnaire before Bush withdrew her nomination, Miers listed, among her chief qualifications to sit on the Supreme Court, the fact that her time as counsel to Bush had given her significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.” And she later added, “My time serving in the White House, particularly as Counsel to the President, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.” Bush was looking for a woman to fill Sandra Day O’Connor’s seat, and nearly all the other potential female conservative nominees lacked this one crucial attribute: executive branch bonafides. Perhaps there was more to that nomination than mere cronyism.

After the Miers nomination collapsed, Bush selected Samuel Alito to replace her. Like Roberts, Alito had come of age as a young member of the Reagan Revolution. His internal memos, also at the National Archives, told a similar story to Roberts. While working in the solicitor general’s office in 1984, he argued that high-ranking executive branch officials should be absolutely immune from lawsuits by victims of any illegal actions they undertook while on the job. Later, in the Office of Legal Counsel, he was a prime mover in developing a plan to have Reagan issue signing statements more frequently in order to, as he wrote, “increase the power of the executive to shape the law.” He was also a member of a special brain trust of political appointees that met to develop creative new ways to push Reagan’s agenda. At its Sept. 4, 1986 meeting, the last Alito attended before becoming a federal prosecutor, their topic was discussing ways to turn aside “challenges to executive power.” According to a memo that laid out the day’s agenda, the group looked at such issues as ways to roll back restrictions on a president’s “military power and related emergency powers”; to undermine statutes that set up independent officials within the executive branch who could not be fired by the president; to defend and expand “executive privilege”; to expand the power of the president to enter into “executive agreements” with foreign powers instead of treaties in order to cut out the role of Senate ratification; and to expand the president’s absolute power of “executive discretion in foreign affairs and national security matters.” Also up for discussion that day was “judicial usurpation of power . . . against the executive branch.”

Alito’s record as a judge does not tell us much because executive power disputes do not often come before the Third Circuit. But he still demonstrated that he carried his strong views on presidential power with him when he left the politically appointed ranks. In 1989, as a prosecutor, Alito denounced the 1988 ruling Morrison v. Olson, in which the Supreme Court had rejected the Reagan legal team’s Unitary Executive Theory 7-1, calling the ruling an endorsement of a “congressional pilfering” of presidential power. Eleven years later, at another Federalist Society Convention shortly after the 2000 election, Appeals Court Judge Alito gave another address reaffirming his support for the Unitary Executive Theory, even though, as he acknowledged, the theory, by freeing the president of many checks and balances, “can be used to accomplish things that most probably would not favor.”

Shortly after Alito was confirmed to the bench, he dissented from the Supreme Court's Hamdan decision, which represented the greatest setback to the Bush-Cheney legal team’s efforts to free the commander-in-chief from a need to obey laws and treaties. Critics of the administration have celebrated Hamdan as a definitive repudiation of this aggressive view of presidential power. But the critics have tended to overlook a critical factor. Only five of the nine justices on the new-look court disagreed with the White House. The average age of the five justices in the majority was greater than 72 at the time Hamdan was handed down, while the average age of the four justices in the minority was less than 59. Given the realities of the human life span, either Bush or some future president, one or two election cycles from now, will have ample opportunity to get that fifth vote. Hamdan may turn out not so much the final word as the last hurrah for the traditional view of checks and balances on presidential power.


Comments:

So the interesting question that follows from Mr. Savage's completely persuasive analysis are:

Why aren't senators interested in defending the institutional prerogatives of the Congress against a rampaging view of presidential power. As readers of earlier postings will know, I believe that the answer was provided by Darryl (no relation) Levinson, who demolished the Madisonian argument that senators really focus very much, if at all, on such questions. At the very least, Levinson explains why no Republican senator was willing to ask any probing questions regarding presidential power (even after Roberts had telegraphed his views in his Hamdan dissent). Republican senators march in lock step behind their party leader, at least with regard to judicial nominations (and almost everything else, save immigration "reform," where the other half of the Levinson/Mayhew analysis comes into play, i.e., their desire to be re-elected by their constituents). He has a tougher job explaining Democratic (relative) silence on the matter, given that one might believe that there would be a political incentive to play hard-ball with regard to lifetime appointments of young justices to the Court. Although one is tempted just to speak of the continuing brain death of too many Senate Democrats, I think the better explanation is the extent to which they continue to be in thrall to protecting Roe v. Wade as the end-all-and-be-all of confirmation hearings, not to mention their being seduced by the famously charming Chief Justice (whom I've never met) and unaccountably accepting of the claims made in behalf of Alito. Yes, there were faux-learned questions about Jackson's opinion in the Steel Seizure Case, but the very point of that great opinion is that ultimate decisions will turn on the lessons taught by one's personal experience rather than any kind of formal legal analysis, which Jackson came close to disdaining.
 

I agree with Professor Levinson that Mr. Savage's analysis is spot on with one quibble. Mr. Savage offers: "Hamdan may turn out not so much the final word as the last hurrah for the traditional view of checks and balances on presidential power." Actually, Mr. Savage's truncated view of Presidential power is hardly traditional and came to town with a radical Congress in 1974 and an extraordinarily weak President in 1976.

Mr. Bush is simply returning the Presidency a measurable distance towards the status quo ante for most of the 200 years prior to the 70s political sea change. I see very little that is unprecedented in Mr. Bush's exercise of Presidential power. Indeed, it falls significantly short of the war powers exercised by Lincoln and FDR.
 

Professor Levinson:

I find it amusing that you believe that the GOP Senators are in ideological or partisan lockstep in the approval of judges. The GOP generally believes that nomination of judges is the President's job and they will vote to approve if competent, thus, the overwhelming bipartisan approval of the left to far left Clinton Supreme Court nominees.

In stark contrast, I guess I missed the Dem silence during the hearings on Roberts and Alito which you recall. I recall a non stop Dem hammering of these nominees during their hearings and the maneuvering leading up to the votes. For those whose memories are fading, here is an extensive survey of the statements slamming and slandering Alito from a majority of the Dem Senate Caucus. Many of these directly attacks Alito's assumed position in favor of returning Presidential powers.
 

I wonder if these same professors will criticize the next Democratic President nominating Bill Clinton's executive branch legal warriors?
 

No reasonable person could believe that the GOP is committed to the abstract proposition that the president should be able to nominate whomever he/she wishes subject only to a test of competency. The fact that they accepted Ginsburg and Breyer (best described as "moderates" rather than left-liberals, as Cass Sunstein has recently argued) says nothing about the relentless opposition to many of Clinton's absolutely competent nominees to the courts of appeals. Similarly, I don't think that the right-wing opposition to Harriet Meirs was based on doubts about her "competence." (The best article about comparative confirmation rates is one by Sheldon Goldman in a symposium a couple of years ago in the University of Richmond Law Review, for anyone who is actually interested in data rather that self-serving posturing.)

As a matter of fact, I see no particular need for the Senate to defer to presidents, whether Democratic or Republican, so torpedoing otherwise competent nominees is not, for me, per se objectionable. But at least let's be honest in describing what has been the case in recent years.
 

Alito: “increase the power of the executive to shape the law.”

Dear God! How can anyone actually consider that a good goal?
 

Two points:

to expand the power of the president to enter into “executive agreements” with foreign powers instead of treaties in order to cut out the role of Senate ratification; and to expand the president’s absolute power of “executive discretion in foreign affairs and national security matters.”

Basically, to expand the power of the Presidency into constitutionally legislative powers.

And from jsalvati:

“increase the power of the executive to shape the law.”

Which is in violation of the President's duty to faithfully execute the law. The legislature shapes it, and his only constitutional check is the veto.

It's amazing how the Judiciary, which is supposed to be the arbiter of constitutionality, is now being seeded with anti-constitutionalists.
 

Just to add some balance: both Lincoln and FDR exercised their war powers in some ways that were at the time and still are extremely controversial and arguably were and still are unconstitutional. To say Nixon's theories were merely "status quo" ignores history but does seem to confirm Savage's thesis of a one-way ratchet.
 

With all due respect to Mr. Savage, his “master narrative” sounds very simplistic. The “Imperial Presidency,” having been narrowly thwarted from its dastardly goals during the Nixon Administration, seeks to return to absolute power a quarter-century later, determined to achieve its ambition of subverting American democracy. Its black-robed adherents, having been branded with the “dark mark” during secret meetings of the Federalist Society, are summoned forth to venerate the unitary executive, protect executive privilege and violate constitutional rights of innocent Americans. They maliciously prosecute political opponents, torture or “disappear” suspected enemies, reward corrupt cronies, and generally ignore any laws they find disagreeable or inconvenient. Those too honorable to cooperate in these nefarious activities find themselves unemployed (Iglesias), cruelly nicknamed (Comey) and are lucky to escape death (Ashcroft).

None of this is to suggest that there are not serious issues raised by many of the legal positions taken by the Bush Administration. It clearly came into office with an agenda of expanding executive power at the expense of the other branches (although its supporters, of course, would characterize this as reversing encroachments by the other branches on executive authority). And to be fair, some of the positions that it has taken in the war on terror (the torture memos spring to mind) sound as if they were developed to promote narratives like that of Mr. Savage. But while the Administration has taken some extreme and unwise positions, it is a serious overstatement to suggest that it has attempted to eliminate all checks and balances, much less that it has tried to subvert American democracy.

Both the substance of the Administration’s legal positions/theories and the tactics it has employed to promote them should be subjected to careful and skeptical analysis. But such analysis should recognize that legal arguments cannot be rebutted simply by noting that they are contrary to the views of “mainstream” legal thinkers (ie, those who regurgitate the conventional legal doctrine espoused by “black robed activists” of a prior era). It should also carefully consider the relationship between the Administration’s positions and those of its predecessors. To give just one example, while the Administration has claimed the authority to undertake military action without congressional authorization under some circumstances, its predecessor both claimed and repeatedly exercised this authority, not merely to protect American lives and interests, but to change regimes of which it disapproved.

Of course, Mr. Savage is entirely free to write a political screed against the Bush Administration if he wishes. People can and do write such things all the time, about this and other administrations. Consider David Limbaugh’s “Absolute Power” (subtitled “The Legacy of Corruption in the Clinton-Reno Justice Department”), which, if the names “Clinton” and “Reno” were changed to “Bush” and “Gonzales,” would no doubt win immediate praise as a “master narrative” as well. But these should not be confused with serious or objective works, of either a legal or historical nature.
 

Professor Levinson:

No reasonable person could believe that the GOP is committed to the abstract proposition that the president should be able to nominate whomever he/she wishes subject only to a test of competency. The fact that they accepted Ginsburg and Breyer (best described as "moderates" rather than left-liberals, as Cass Sunstein has recently argued) says nothing about the relentless opposition to many of Clinton's absolutely competent nominees to the courts of appeals.

I do not want to go too far down the ideological perspective rabbit hole, but Ginsberg and Breyer can only be considered "moderates" in a typical law school faculty lounge. Ginsberg is perhaps the most reliably left vote on the Court and she has brought her NOW advocacy to the bench without much pretense otherwise. Breyer made no bones in his recent book Active Liberty that he is more than willing to rewrite the Constitution at will to suit his personal concepts of liberty.

O'Connor could be considered a "moderate" who would swing both directions. Ginsberg and Beyers are not even close.

In any case, we started off speaking about approval for nominations to the Supreme Court and now have expanded to lower court nominations. So far as lower court nominations go, I agree with you that both parties have been playing games there.

Similarly, I don't think that the right-wing opposition to Harriet Meirs was based on doubts about her "competence."

C'mon Sandy, Miers is simply an average attorney with no particular track record of achievement. While I do not deny that the GOP also had serious doubts about her positions, Miers has to be the least qualified nominee to the Supreme Court in recent memory.

Many of us in the GOP voted for Bush the first time around so he could appoint young, intellectually muscular conservative justices to the Supreme Court which could change the course of the Supreme Court in a meaningful way for a long time to come. Naturally, we were appalled when Bush nominated one of his personal attorneys who fit none of the qualifications he promised. Thankfully, the stubborn and loyal Bush was actually moved by the storm of criticism within the party to dump Miers and appoint the far superior Alito.
 

Professor Levinson:

I would add that nominations to the lower courts involve state politics and real or imagined Senate prerogatives to have a say in who gets nominated from their states. I would suggest that this largely explains the difference in the GOP approach to Supreme Court nominations and those to lower courts.
 

-- I don't think that the right-wing opposition to Harriet Meirs was based on doubts about her "competence." --

.

Understanding that this is a minor point in the scheme of this post, and speaking only for myself (I'm fairly pigeonholed as a right-winger), I thought the Miers pick was awful on several grounds.

.

First, she was "unknowable," opaque. Hence, there was no principled way to judge her qualifications. How then is a Senator to decide, or a public to hold the Senate accountable? Another way to view this primary objection is that "trust me" is a crappy way to run the government. And a leader who relies on "trust me" isn't trustworthy to me.

.

Second, as I reviewed her work, I reached an opinion as to her qualifications, and to her "judicial bent." I decided she was/is an intellectual lightweight, and prone to outcome-oriented decision-making. So, in that "intellectual lightweight" category, I doubted her competence. Likewise on the judicial temperament, i.e., open-minded as to result, going in to a case or controversy.

.

Alas, the mainstream of public discourse is wont to jump to a conclusion and stick to it, so my point of view isn't widely shared or understood. IOW, "right-wing opposition" as publicly presented is knee-jerk. As is most public discourse.
 

To give just one example, while the Administration has claimed the authority to undertake military action without congressional authorization under some circumstances, its predecessor both claimed and repeatedly exercised this authority, not merely to protect American lives and interests, but to change regimes of which it disapproved.

As is true of the rest of your post, you provide no support for this claim.
 

Mark Field

The Clinton Administration had no congressional authorization for its attack on Serbia and in fact Congress refused to provide the requested authorization. It had no congressional authorization for the strikes on Afghanistan and Sudan following the 1998 bombings of our embassies in Africa. I don't believe that it had congressional authorization for its threatened invasion of Haiti. It may arguably have had a general congressional authorization for the December 1998 strike against Iraq, but it had no specific authorization comparable to what the Bush Administration had with respect to Afganistan or Iraq.

If you think it is too facile to take these examples and make the assertion that the Clinton Administration arrogated to itself an unchecked power to use military force anywhere and anytime it felt like it (which was not my assertion), then you should be equally opposed to similar reasoning in the case of the Bush Administration.
 

The Clinton Administration had no congressional authorization for its attack on Serbia and in fact Congress refused to provide the requested authorization. It had no congressional authorization for the strikes on Afghanistan and Sudan following the 1998 bombings of our embassies in Africa. I don't believe that it had congressional authorization for its threatened invasion of Haiti. It may arguably have had a general congressional authorization for the December 1998 strike against Iraq, but it had no specific authorization comparable to what the Bush Administration had with respect to Afganistan or Iraq.

This is a different and much weaker claim than your previous post, in which you asserted that Clinton both claimed and "repeatedly" exercised the right to conduct military action for the purpose of regime change. Only one of the examples you now give involved regime change (Kosovo), and in that case the Clinton Administration claimed that it complied with the War Powers Act. Now, you can argue about whether it did, in fact, so comply, but that's quite a different issue from your original assertion. Your original post was, put politely, an exaggeration.

In addition, the "Clinton did it" excuse is pretty thin, even when there actually is some factual basis for using it. If Clinton did something wrong, that hardly makes it ok for Bush to do it too.
 

Judges know that being a crackpot greatly increases their chances of being chosen for the Supreme Court.

Best definition of "federal judge" I have heard: "A lawyer who knows a Senator." My thanks to Barry Arrington of Uncommon Descent for that one.

To me, the big problem with Harriet Miers was that she was a Bush sycophant of the lowest order. Her praise of Bush was beyond all reason.
 

Mark Field

I appreciate your politeness. I think my initial statement was accurate (btw, Haiti also involved regime change), but if your point is that Clinton's assertions of executive warmaking authority need to be understood in specific factual and legal context, I don't disagree. Actually, that was my point. One needs to look at Bush's assertions of executive authority in the same way.

I think it should be clear that I am not trying to justify anything on the grounds that "Clinton did it." In fact, I am not trying to justify anything that Bush has done, period. I do think one reason for the weak congressional resistance to Bush's assertions of executive authority (whether or not one thinks those assertions justified) is that many of those assertions were similar to ones that the Clinton Administration had made.

In any event, IMO, Mr. Savage's narrative sheds more heat than light on these issues.
 

For MLS and other skeptics:
I think you may find the actual text of “Takeover” is much more in line with your approach to thinking about this issue than you appear to think. Several reviewers have criticized the book’s aggressive title, but also made clear that the tone of the book is much more detached than its packaging. For example, the LA Times reviewer said “Despite the histrionic subtitle, ‘Takeover’ is a meticulously reported and lucidly recorded account.” And the Portland Oregonian reviewer wrote that despite my use of the word “subversion” (not of democracy per se, but of American-style democracy, mind you) in the subtitle, for the most part “he sets out facts in a compelling manner, letting readers decide how to evaluate the information.” When I was talking with George Will about the manuscript and he was deciding that he wanted to blurb it, he also raised an eyebrow at the subtitle. But it did not faze him in the end; he noted that Cass Sunstein had faced a similar dilemma with “Radicals in Robes,” a book whose title – suggested by the publisher, Will recounted – probably improved its chances of being picked up at a book store, but whose tone did not match the prose between the covers. In the same way, my working title was the drier “The Cheney Project.”

Moreover, if you do happen to pick up a copy, you’ll also find that it has extensive discussion of the broader historical context. Chapters Two and Three are a history of executive power up to the end of the Clinton administration, and they provide numerous further envelope-pushing examples by previous Democratic presidents, including Carter and Clinton, that you could cite in debates such as the one you are having here with Mark Field. As the Founders knew, people in power have a natural tendency to want more of it, no matter what their politics: every president takes whatever powers he has inherited and tries to make them even more useful as tools to achieve his preferred policies. What “Takeover” describes is a dramatic escalation or intensification of this normal dynamic, one that stemmed from a conscious agenda as an end to itself separate from any policy goal and that was aimed a leaving behind a stronger institution for future presidents as well, and one that was enabled by political contingencies – 9/11, one-party government – that broke down the normal countervailing forces and succeeded in moving the one-way ratchet much further than normal. Think of the signing statements controversy: yes, previous presidents used them too, including Clinton. But Bush used them to challenge more sections of bills than all previous presidents in US history combined, and he did so while virtually abandoning his conventional veto power. There was something more at work here than politics as usual, and this book sets out to systematically identify and describe what has happened.

I invite you to pick up a copy.
 

Are you suggesting that I read your book before trashing it? I could lose my blogging license for that.

Ok, perhaps I have unfairly characterized your work. In my defense, my impressions have come not just from the title of the book, but from your NPR interview and several postings on this site.
 

Mr. Savage:

Are you equally as criticize of Democratic Presidents for nominating executive branch legal warriors (your excerpt above dealt only with Bush's nominations)?
 

The comment that federal judges were lucky lawyers who knew senators was once true, but some interesting recent work by David Yalof, from the University of Connecticut, has shown, to my satisfaction at least, that the Bush Administration is paying far less attention to the wishes of senators with regard to circuit court appointments than used to be the case. (It may well continue to be true with regard to district court appointments.) The Administration correctly recognizes that most of the important legal action within the federal courts occurs in the "inferior" courts (as they are labeled by the Constitution)--the Supreme Court is, as Tony Amsterdam described it some years ago, largely a Delphic Oracle emanating completely mysterious pronouncements. This means that presidents with ideological agendas (and I don't use this term pejoratively) may well feel that they can't afford to submit to senators who are more interested in rewarding a friend or paying off a contributor than in finding bright (i.e., "competent") people who are committed to the Administration's program.

I have ordered Mr. Savages book and can't wait to read it. As someone who is sometimes hyperpartisan, I think it is important to note that the shift of power to the president is a long-term event in American politics, with significant ramifications. My own view, which I've argued repeatedly, is that one can't really go back to a Whig conception of the presidency, and that it is therefore important to modify the Constitution in order to be able to get rid of a president who is deemed, by a relevant supermajority of Congress, to have lost the confidence of the public (and of savvy politicians). I am in rough agreement with Jack Goldsmith's point that we have to pay more attention to the character of our presidents and perhaps less to legalistic abstractions (though I certainly don't want to throw out legal considerations entirely, of course). In any event, I think we are fortunate to have published at the same time the Savage and Goldsmith books, which, by all accounts, carry the debate to a new level.

Finally, I think it's pretty much of a draw with regard to Republican acceptance of Ginsburg and Breyer and Democratic acceptance of Alito and Roberts, though I do think that any political scientist can demonstrate that Alito and Roberts are further along the right end of the political spectrum than Ginsburg and Breyer are along the left end.
 

"criticize" should read "critical"
 

Professor Levinson:

Doesn't "draw" imply "equal"?

Justice Ginsberg was confirmed 96-3 and Justice Breyer was confirmed 87-9.

Chief Justice Roberts was confirmed 78-22 and Justice Alito was confirmed with only 58-42.
 

The key to understanding the 58-42 vote on Alito is that a conscious decision was made not to filibuster the nomination. One might that that the 42 antis would think the issue was strong enough to go to the mat, and dare the Republicans to exercise the "nuclear option," which, as I've long argued elsewhere, could be a Pyrrhic victory inasmuch as it would actually allow President Clinton or Obama, assuming a Democratic Senate, to name practically anyone she or he wished. But, of course, the Dems were unwilling to test the filibuster waters, and one must discount the meaningfulness of the largely symbolic votes against Alito (and, earlier, Roberts). Republicans might have been more sagacious in appearing to be magnanimous on a vote they knew they couldn't win or successfully filibuster. One of the things political scientists know is that final votes are notoriously unreliable as measures of actual political divisions. All of this being said, I will concede that Charles makes a good rhetorical point with regard to the differentials in the vote.
 

Although I am a bit late on this thread, I want to add my own more nuanced view of Charlie Savage's thesis about the Roberts and Alito appointments. I do agree that both are symphathetic to and would defer to a strong executive in some important respects, but I don't think they support the administration's most radical constitutional theories. (Miers, I suspect, did buy into that manifesto.)

It also is a little misleading to sort all issues into a binary choice of pro- or anti- presidential power, and even more misleading to treat constitutional, statutory and prudential questions as if they were the same. The main question decided in Hamdan, for example, was primarily statutory. In Hamdi, the administration won a narrow victory on a statutory basis, but lost the constitutional separatation-of-powers question. The issues involved with state-secrets privilege are primarily prudential, although the administration is seeking to establish a firmer constitutional precedent.

On the key constitutional questions about war powers, the central distinction between the Cheney/Addington/Yoo camp and mainstream conservatives is found with respect to the Justice Jackson's Youngtown framework: The former reject Youngstown, while the latter embrace it.

I think Roberts and Alito, like the other conservatives on the court, would tend to favor expansive interpretations of key statutes such as the AUMF, which is what the conservative bloc did in Hamdan. But everyone in that bloc fundamentally accepts Youngstown. (Goldsmith, BTW, is a key proponent of robust-AUMF theories, but fought Yoo over Youngstown-related constitutional matters.)
 

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