Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts What the Senate Should Do
|
Tuesday, October 23, 2007
What the Senate Should Do
Chris Eisgruber
This post is the last of three marking the 20th anniversary of the Senate vote rejecting Robert Bork’s nomination to the Supreme Court (the vote was twenty years ago today: October 23, 1987). In the first two entries, I described how the Bork hearings produced a surprising legacy: an aggressively ideologically nomination process coupled to a highly stylized confirmation process.
Comments:
Reading this post leaves one with the impression that the Senate is looking for nominees that will promise to defer to elected officials. But isn't the opposite more often the case? Aren't the most controversial nominees (like Bork) those whom the Senate suspects will defer to the legislature? At least with justices nominated by Republican Presidents, the confirmation process ironically involves attempts by elected officials to extract promises from the nominee that he/she will stop either Congress or the state legislatures if they try to do x,y or z.
Will the Senate be able to make these changes? I do not know, but I think it is possible.
I wish I could share your optimism, but I don't. There's a long history of Senatorial deference to Presidential nominations. Indeed, it's reached the point where many people seem to believe that the President is somehow entitled to free reign in his selection of justices (failing, IMO, to distinguish between administrative appointments, where that policy makes sense, and judicial ones, where it does not). Aren't the most controversial nominees (like Bork) those whom the Senate suspects will defer to the legislature? I don't understand this suggestion. Nominees like Bork and Thomas (the two most controversial in recent times) were controversial precisely because everyone suspected that they would NOT defer to the legislature, particularly on issues such as interstate commerce. Both were suspected of being all too willing to strike down current practice in favor of their beliefs about 1790. On a somewhat different note, Roberts (whose nomination wasn't very controversial at all) and Alito were suspect out of concern that they would defer to the Executive rather than the Legislature. I'd say you've got the concerns exactly reversed.
Since before the Roberts and Alito nominations the Senate has had all the authority it needed to ask nominees their views on cases likely to come up. In 2002 the Supreme Court, in Republican Party of Minnesota v.White, 122 S. Ct. 2528 (2002), struck down a state judicial code provision that barred candidates for elected judgeships from speaking out on matters of the sort the Senate Democrats were trying to glean from the nominees' delphic platitudes.
Republican Party of Minnesota, penned by Antonin Scalia and reliant on opinions by William Rehnquist, runs arguments about compromised impartiality into the ground, hails first amendment principles and the public's right to know, and points up the absurdity of requiring people to vote for pigs in a poke. At one point Justice Scalia wrote: Even if it were possible to select judges who do not have preconceived views on legal issues, it would hardly be desirable to do so. Proof that a Justice's mind at the time he joined the Court was complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias. If views on likely but not pending cases can be vented to a public electorate selecting state court judges for fixed terms without compromising impartiality, it follows as night follows day that candidates for lifetime appointment to the nation's highest court have no excuse for not doing so in hearings before the Senate committee charged with reviewing their qualifications. The only way it begins to make sense to distinguish Republican Party of Minnesota is to whittle the Advice and Consent power down to the size of a rubber stamp, and that indeed describes the dynamic of a confirmation process whose visible aspect featured the claim that the President was entitled to an "up or down vote" notwithstanding the Senate's deliberative rules. The result is a judicial branch that by degrees has been turned into an appendage of an executive on steroids while Senators alternate between tearing their hair out and twiddling their thumbs. During the Roberts and Alito hearings I tried to bring Republican Party of Minnesota and its implications to the attention of Democratic Senators so they would get real with the nominees. Staffers I spoke to either said, "Oh, yes, we're on top of that – just watch what we do!" or promised to pass the word along to people in the trenches. I waited in vain to see my efforts bear fruit. But as disheartened as this experience left me, I was unprepared to learn today, as I did in googling the case, that Senator Leahy was aware of it well before the nominations in question and that he in fact raised it in regard to Miguel Estrada's nomination, even quoting the excerpt included above. See his statement of March 13, 2003. http://leahy.senate.gov/press/200303/031303a.html. Of one thing you can be sure: If a Democrat comes into the White House, the Republicans will use the case to frustrate efforts to restore balance to the judiciary. An account of how and why the Democrats on the Senate Judiciary Committee failed to bring the case forcefully to bear on the Roberts and Alito nominations would figure in the better part of a so far unwritten chapter on how the face of our republic is coming more and more to resemble the Cheshire cat's grin.
I enjoyed the first of the three installments of the series on the 'Surprising Legacy...'. As with most timeslices, however, the context of the authorship of these helpful three articles will explain somewhat more than the mere text. Which is to say, if I may state my personal view, Prof. Tribe's democracy-protective refutations in re Bork nomination were the work of Tribe's own genius and rhetorical flexibility. Bork crumbled because of his iron ideology. Finally, if I may respond to the last of the three articles, the attempt to place into political context the work of the supreme court justices, indeed, of nominees to those posts, appears to omit some unmentionable background with respect to the comity in the US Senate. In a way, nomination hearings are very much part of the same process which produces omnibus spending bills in congress, and, as one commenter observed, Sen. Leahy and his investigative crew may opt to keep powder dry based on motivations superficially unrelated, but actually part of the mechanics of passing laws and whipping a constituency into alignment. As some of the elders retire from congress, it will be interesting to see to what degree there is a similar enhancement of perspicacity of the interrogations of nominees; part of the complexity for congress people is understanding the problems of our day, as well as the intentions of the minority which seeks to divert the flow of jurisprudence by parliamentary moves applied to the nomination process.
In summary, I would add praise for prof. Tribe; and would suggest the senators be more energetic in employing attribution to some of the fine advocacy groups for ample dossiers those NGOs have produced in a timely way pre-hearing and even pre-nomination.
Mark Field:
Nominees like Bork and Thomas (the two most controversial in recent times) were controversial precisely because everyone suspected that they would NOT defer to the legislature, particularly on issues such as interstate commerce. I think you're the one who has things backwards, and wrong as well, in claiming that the real worry was interstate commerce rather than abortion (where the fact that judicial conservatives might defer to legislatures is precisely what drove the opposition).
I think you're the one who has things backwards, and wrong as well, in claiming that the real worry was interstate commerce rather than abortion (where the fact that judicial conservatives might defer to legislatures is precisely what drove the opposition).
I'd agree that there's a sense in which the right wing has argued "deference to the legislature" when it comes to abortion.* I disagree that abortion was the only issue of concern with either Thomas or Bork. In both cases, the concerns extended far beyond that. And I don't think anyone was under any illusions when it came to Roberts and Alito, but in neither case was abortion the focus of concern for many opponents. *As more than one abortion opponent has admitted to me, their real view is that the 14th A gives constitutional protection to the right to life. They don't actually believe the legislature should have the power to decide; that's just a convenient argument. What they really want is a court decision banning abortion on constitutional grounds.
Huh? Is Mark Field suggesting that the constitutionality of the Gun-Free School Zone is the salient constitutional issue of our time? Or that right-thinking left/liberals were worried that the Supreme Court would permit medical marijuana? Because there are Commerce Clause cases, but I really don't think they drive the national political discourse.
Mark Field:
I'd agree that there's a sense in which the right wing has argued "deference to the legislature" when it comes to abortion.* I disagree that abortion was the only issue of concern with either Thomas or Bork. In both cases, the concerns extended far beyond that. And I don't think anyone was under any illusions when it came to Roberts and Alito, but in neither case was abortion the focus of concern for many opponents. As is usual, principle falls far behind expediency, particularly on matters of great personal import. The distinction between whether the Constitution says too much or too little, whether the judges are "activist" or "strict", whether the legislature is overstepping its permitted role, whether the federal gummint is too strong or too weak, and whether the preznit is acting like a dictator or a wuss, depends mightily on what someone specifically wants to happen. Watching Nino expound on unseen "principles" in the Constitution revealed through an Eleventh Amendment that says no such thing is just one example.... Abortion, of course, has become a surrogate for the troglodyte faction's dying grasp on a past social milieu that will never be again, but that doesn't make their angst over such any the less real. And as such, that one issue is bound to turn principle on its head for such, and they will gladly extol the virtue of Federal and state action, whatever they can get, or even Constitutional Amendment, in that one aim. Little do they know that this wouldn't slake their thirst in the least in that personal hell they have constructed for themselves. Cheers,
sThe trouble with any discussion of "judicial restraint" is that it has two alternate, perfectly defensible meanings. One is deference to other branches of the government. The other is a narrow and text-bound reading of the Constitution.
Sometimes these two meanings reinforce each other, as in the case of Roe v. Wade. But other times they clash, as in interpreting the commerce clause. Deferring to Congress on such here means interpreting "commerce" broadly, and interpreting it narrowly will bring the court into frequent conflict with the elective branch. And, as Mark says, there is now the issue of Presidential power versus Congress. Which one is more "restrained" to support?
My initial point was that the Senate on the whole isn't looking for judges that will promise to be deferential to legislatures. Every Senator wants judges who are deferential on some issues, and some Senators may want judges to be deferential on all or virtually all issues, but most Senators are insistent that judges not be deferential on some issues. This is particularly true of the more liberal Senators, but it is also true of most, if not all, conservatives (remember the screaming about "activist judges" when the Supreme Court refused to annul a local taking of private property for commercial development).
I am not sure that anyone here actually takes issue with this point, though it is hard to tell. I also observed that the most controversy has been generated by concerns that judges would be overly deferential on particular issues, rather than the reverse. Mark Field takes issue with this observation, claiming that the greatest controversy about Bork and Thomas involved concerns that they would not be deferential, particularly on issues such as interstate commerce. Well, I wouldn't disagree that there have been substantial controversies about refusals to be deferential as well (affirmative action would be an example). And I suppose it is somewhat subjective as to which has raised the greatest controversy. But consider Kennedy's famous speech: ""Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.'" Of these points only one, the segregated lunch counters, would seem to refer to a refusal to be deferential (if the implication was that Bork would strike down the civil rights laws) and even this could equally refer to a willingness to be deferential (if the implication was that Bork would not have struck down state-mandated segregation). In any event, I think it is clear that Kennedy's concern is not with whether Bork was sufficiently deferential to legislatures, but whether he would reach the "right" result in cases that Kennedy cared about (and that in most cases one would reach the "right" result by refusing to be deferential). BTW, Arne- thanks for sharing your perspective on the pro-life movement. We troglodytes are so lucky to have advanced men such as yourself to explain the true meaning of our angst. How else will we ever learn tolerance?
MLS:
Post a Comment
BTW, Arne- thanks for sharing your perspective on the pro-life movement. We troglodytes are so lucky to have advanced men such as yourself to explain the true meaning of our angst. How else will we ever learn tolerance? No charge. Abortion (or anti-abortion anxiety) is a relatively recent phenomenon (even within the Catholic church, well-known for their staunch current hard-line anti-abortion stance). I'd note that it's not just "abortion" that gets people's panties twisted; the Catholic church, for instance, is vehemently anti-birth-control (for reasons best left to themselves or their shrinks [or accountants?] to explain), but the phenomenon extends to such as Dubya's "social conservative" appointees to health and family planning positions. Sex is not fun in their world; it's for having children ... despite the obvious evidence to the contrary. And it is this mindset that is what is driving the "troglodyte" right ... a Calvinism/abstinence/you're-all-sinners attitude towards life. I find such particularly unappealing, much as it might bring solace to those who think that life ought to be "nasty, short, and brutish" as it usta be. And thankfully, more and more people are also rejecting such a view. But to each their own. Cheers,
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |