Balkinization: Why the Candidates Aren't Talking Much About Judicial Nominations

Comments:

I am giving a talk next Monday at Centenary College, in Shreveport, to celebrate Constitution Day, with the title "The Future of the Supreme Court, and Why It's Less Important Than You Think It Is." There will be two major themes: One is my hobbyhorse, familiar to all Balkinization regulars, that the most important parts of the Constitution (by far) are the unlitigated ones. But, of course, there are litigated provisions, and lots of us think they're very important. But then the second theme, taken especially from Fred Schauer's Harvard Law Review article in 2006, is that very few of the litigated cases concern issues that the general public really cares about. The "What people are most worried about" polls almost never involves anything the Court is addressing. A few people care deeply about abortion; most, for better or worse, care far more about the general economy, the state of the war(s), the price of gasoline, etc., etc., about which courts have astonishingly little to say (at least in the absence of comprehensive legislation yet to be passed by Congress).

Caring all that much about what the Supreme Court does is a little bit like being passionately devoted to cricket. The rules are almost impossible for non-initiates to understand and, at the end of the day, it may not matter all that much except to the passionate devotees. (I'm really not so cavalier as I sound. It matters a great deal, say, to the poor wretches detained at Guantanamo, but what is happening there has little to do with the lives of most Americans, Democratic or Republican.)

# posted by

Sandy Levinson : 7:29 PM

I think that McCain is staying away from the subject because, frankly, he's got no credibility with the party base on this. Judicial confirmations was one of the subjects he went off the reservation on, and more than one of his policy preferences is contrary to any conservative reading of the Constitution, leading to serious doubt that his judicial nominations are going to be anywhere as good as he would like Republicans to believe.

# posted by

Brett : 7:37 PM

Brett, I think you mean anywhere as right wing as he would like the right wing of the Republic Party to believe.

It's McCain's hard luck the that his party has been taken over by right wingnuts. This compels him to do a lot of appeasing and not a little silence on certain subjects, including judicial appointments, immigration, pretending that religion and science are the same sort of thing, and so and and so forth.

So I agree he's staying away from the subject, although my analysis of why is a little different. There's no question however that he's staying away from a number of subjects. The Maverick is on hold for the duration of the campaign.

# posted by

jpk : 10:14 PM

I agree, and also, the Court hasn't really done anything that controversial lately. Heller excited a ton of angst in some circles, but on the macro level it's not an unpopular decision. Boumediene didn't poll very well, but no one cares that much, and it's probably risky for McCain to make too big an issue of the detainees. I suspect a very solid majority of Americans would've favored the death penalty for Kennedy in Kennedy v. Louisiana, for instance, but whether or not the death penalty should be administered to a select few child rapists is a very niche issue. So there isn't much for either candidate to run against with respect to the Court; all there really is is the old, "if you elect the Republican Roe will be overturned" scare.

# posted by

Asher : 12:58 AM

"Brett, I think you mean anywhere as right wing as he would like the right wing of the Republic Party to believe."

No, I meant exactly what I said. McCain's campaign censorship ambitions are unconstitutional by any reasonable reading of the 1st amendment, and he's admitted as much publicly, saying that if it comes down to 'fighting corruption' or the First amendment, he'll pick fighting corruption.

It's absurd to think he'd appoint conservative justices determined to strike down the gem of his legislative efforts. Oh, well, maybe we'll get lucky, and he'll get elected, and then croak after the inauguration, (To deny Sandy's soulmates in Congress any excuse to start a civil war.) and we'll get President Palin making those nominations.

Gotta make McCain nervous, knowing so many of the people voting for him wouldn't mind him dying in office. LOL!

# posted by

Brett : 9:33 AM

The selection of judges will always be a tertiary or lower issue when there are dinner table issues concerning the economy and war before the electorate.

Selecting judges "who do not legislate from the bench" is always a reliable applause line for McCain and was a prerequisite for support from the GOP base, but it is not the primary issue before the voters.

Obama will continue to steadfastly avoid addressing the issue because campaigning on appointing judges who will rewrite the Constitution does not sell with regular folks.

# posted by

Bart DePalma : 11:22 AM

Actually, Bart, recent polls say the Court is too conservative (or at least, more people think it's too conservative than too liberal - 'about right' beats either choice) and that it's moving in the wrong direction. Also, when Quinnipiac asks this question every year:

"Which comes closer to your point of view? (A) In making decisions, the Supreme Court should only consider the original intentions of the authors of the constitution. (B) In making decisions, the Supreme Court should consider changing times and current realities in applying the principles of the Constitution."

(B) reliably wins by a double-digit margin. This year, current realities are beating original intentions 52-40. All these polls can be seen at

http://www.pollingreport.com/Court.htm

# posted by

Asher : 1:36 PM

tray:

That poll is utterly useless. You would get as many answers as there are respondents to a poll question asking how a "conservative" judge would rule.

When I use the term, I mean a judge who restrains him or herself as much as possible (because they all do to some extent) from rewriting the law to suit their political preferences no matter whether they are left or right.

Others assume that all judges do what they please and are referring to the political preference of the judge.

Thus, I do not consider Kennedy, one of the worst legislators from the bench, to be a conservative justice, although his legislation from the bench appears to make him predominantly politically conservative in a John McCain sort of way.

Others simply line Kennedy up on the right politically.

# posted by

Bart DePalma : 2:29 PM

maybe . . . he'll get elected

And maybe if I toss a fair coin ten times it'll come up heads ten times.

Either is possible.

# posted by

jpk : 5:10 PM

But Bart, what about originalism losing out to "considering changing times and current realities" (whatever that means)? I thought you said regular folks don't like judges who rewrite the Constitution.

# posted by

Asher : 5:58 PM

The expression "legislating from the bench" is much misused.

It has become a meaningless slogan for those who wish to subvert and emasculate the powers your Founding Fathers gave to your Supreme Court.

The relevant point is that it is always open to these people to promote an entirely different system. For example, they could promote a constitutional amendment to provide an entirely different jurisdiction for resolving disputes over the constitutionality of legislative texts. Different countries have different provisions for such courts - see this Council of Europe description of different constitutional courts and how they are appointed:
Revised Report on the Composition of Constitutional Courts

There could be some reform of the appointments system - perhaps on the lines of the UK Judicial Appointments Commission - to make the entire appointments process more open and transparent.

But, of course, that is not what these ghouls want. They would cease their whining about "legislation from the bench" provided that only ultraconservatives were appointed who would interpret the constitutional guarantees enshrined in your Bill of Rights under the heterodox 'originalist' method.

In every judicial system there is a pendulum effect as courts go through 'activist' and 'quietist' phases. I am no advocate of undue activism on the bench because the principles of stare decisis and judicial restraint have their places in the judicial toolkit. Although constitutional interpretation is special, it also has its recognised limits.

A good example is this UK Privy Council Decision on the contentious matter of the death penalty: Matthew v The State (Trinidad and Tobago) [2004] 3 WLR 812, [2004] UKPC 33, [2005] 1 AC 433 worth reading as whole, but from which these statements of principle may be discerned:-

"2. The language and purpose of section 6(1) are so clear that whatever may be their Lordships' views about the morality or efficacy of the death penalty, they are bound as a court of law to give effect to it. As Lord Bingham of Cornhill said in Reyes v The Queen [2002] 2 AC 235, 246, "The court has no licence to read its own predilections and moral values into the constitution". And their Lordships do not understand the appellant to dispute that if one simply reads the constitution, there is no basis for holding the mandatory death penalty invalid for lack of consistency with sections 4 and 5...

44. While entrenched human rights provisions expressed in a codified constitution are, like the other provisions of the constitution, a manifestation of the popular will, they nonetheless have a special place. As James Madison said in 1789, when commending what became the Bill of Rights in the United States Constitution, a Bill of Rights would have "a salutary effect against the abuse of powers" because

"independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights":

see Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights (1992), p 168. Madison recognised risks of abuse by the legislative power as by the executive and also "the body of the people, operating by the majority against the minority": ibid, p 169. Constitutional protection of human rights of course operates for the benefit of all the citizens of any state. But it is of particular importance to the weakest and most vulnerable members of society, who lack wealth and influence, among whom those subjected to admittedly cruel and unusual treatment or punishment must ordinarily be included...

65. Years ago no one thought mandatory death sentences were an unusual or inhumane form of punishment. They existed in the United Kingdom until 1965. As recently as 1981 Lord Diplock was able to say there was nothing unusual in a capital sentence being mandatory: Ong Ah Chuan v Public Prosecutor [1981] AC 648, 674.

66. Times have changed. Human rights values set higher standards today. The common endeavour, to rid the world of man's inhumanity to man, has not ceased. Conduct, once tolerated, is no longer acceptable. Murder can be committed in all manner of circumstances. In some the death penalty will plainly be excessive and disproportionate. As Lord Lane noted, there is "probably no offence in the criminal calendar that varies so widely both in character and in degree of moral guilt as that which falls within the legal definition of murder": see the report of the Prison Reform Trust (1993), page 21. To condemn every person convicted of murder to death regardless of the circumstances is a form of inhumane punishment. A sentence of death which lacks proportionality lacks humanity...

68. Despite these constitutional and international guarantees the governments of these countries insist on continuing to inflict on their citizens a form of punishment which, by today's standards, is inhuman. Each government justifies its mandatory sentences of death for murder by pointing to a transitional savings clause in the country's constitution in respect of laws in force when the constitution was adopted. Each government seeks thereby to clothe a form of inhuman punishment with continuing constitutional legitimacy and an appearance of human rights respectability...

70. A constitution should be interpreted as an evolving statement of a country's supreme law.

71. This is not to substitute the personal predelictions of individual judges for the chosen language of the constitution. Rather, it is a recognition that the values underlying a constitution should be given due weight when the constitution falls to be interpreted in changed conditions. A supreme court which fails to do this is not fulfilling its proper role as guardian of the constitution. It is abdicating its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide. Dickson J, delivering the judgment of the Supreme Court of Canada in Hunter v Southam Inc [1984] 2 SCR 145, 155, summarised the responsibility of the judiciary:

"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.

72. For some years now their Lordships' Board, in discharge of its responsibilities as the supreme court of a number of countries, has sought to give effect to the human rights values declared and entrenched in the constitutions of these countries. It has done so by decisions such as Pratt and Morgan v Attorney-General for Jamaica [1994] 2 AC 1, concerning time spent on death row, Lewis v Attorney General of Jamaica [2001] 2 AC 50, concerning conditions on death row, and Reyes v The Queen [2002] 2 AC 235, concerning mandatory sentences of death. By the Constitution (Amendment) Act, 2002 the Constitution of Barbados was amended so as to reverse the effect of all three of these decisions. This was done by enacting that, for the future, the conduct declared to be unconstitutional by these decisions of the Board shall not be held to contravene section 15 of the Constitution.

73. All courts of Barbados, including their Lordships' Board when sitting as the supreme court of Barbados, must of course give effect to this change in the Constitution of Barbados. If the requisite legislative support for a change in the constitution is forthcoming, a deliberate departure from fundamental human rights may be made, profoundly regrettable although this may be. That is the prerogative of the legislature."

Incidentally, this judgment is an example of what I meant by the duty of the judges to apply they law even if they clearly think it odious. But it is equally right they judges say clearly to the legislature and the people why they think that reform is needed.

The USA has only had its present constitutional settlement for a mere 221 years. While there can usefully be procedural reforms to any legal system - say every 10-25 years - and efforts to improve judicial appointments and education - it might be wise not to go for anything too radical about the constitutional role of your Supreme Court (which thus far has on the whole served very well) until your constitutional system has had more time to settle down.

# posted by

Mourad : 8:53 PM

mourad said...

The expression "legislating from the bench" is much misused. It has become a meaningless slogan for those who wish to subvert and emasculate the powers your Founding Fathers gave to your Supreme Court.

You may wish to read or re-read Federalist 78 concerning the intent that the judiciary be the weakest branch of government and have no power to at all to take any active resolution whatever:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

# posted by

Bart DePalma : 9:49 PM

The expression "legislating from the bench" is much misused.

It has become a meaningless slogan for those who wish to subvert and emasculate the powers your Founding Fathers gave to your Supreme Court.

It's not just "misused", nor is it a slogan; it's a flat out lie, told by those who have nothing but contempt for the intelligence of American voters.

# posted by

Mark Field : 10:28 PM

Bart quotes from the Federalist No 78 a passage which closes with these words:

"The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

If I recollect rightly, Alexander Hamilton, under the pseudonym "Publius" was extolling the virtues of the independent judiciary - as then known in England, in particular the provision where Judges are appointed "quamdiu se bene gesserint" - during good behaviour - only removable by impeachment.

The actual passage quoted was then and is now factually correct. The judiciary commands no army, has no taxing powers and has no means of enforcing its own judgments. For the latter, the assistance of the executive is required.

If one looks at the various writs of execution in England they were directed to the King's officer for each county - the sheriff. It was the sheriff's officers who carried out the executions, seized the goods of debtors for sale at public auction, evicted the trespassers etc.

I have hanging on my wall what I believe to be the last writ "Ne Exeat Regno" issued in England (in 1987). It begins: "Elizabeth II, by the grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories, Queen, Defender of the Faith, etc; To the Tipstaff attending Our Supreme Court and all constables and other peace officers GREETING!"

Then after factual recitals, it commands the arrest of a certain individual until he gives security not to leave the country or if he fails to do so commands the production of the body of the individual before the Court for further order to be made.

The teste at the foot is sealed and witnessed by the Lord High Chancellor.

The Executive (the Crown) acting to enforce an Order of the Court.

Am I missing something? Have the US Courts sudddenly acquired their own army ? Or is it still the convention that officials of the Executive attend to the execution of the Judgments of the Court ?

I would also draw attention to some other pasages in the same Federalist Paper No 78 upon which Mr De Palma and his fellow travellers might reflect with profit:-

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental....

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution."

I would add this: Hamilton adverts to the difficulty of persuading the best lawyers to quit "a lucrative line of practice to accept a seat on the bench" and indeed it has long been the case in my country that counsel and solicitors going to the bench have to take a very considerable drop in earnings. In the UK we can to some extent compensate for this with titles of honour - High Court and Appeal Court Judges get their knighthoods, Appeal Court Judges are sworn of the Privy Council - Heads of division and members of the Judicial Committee are usually given peerages. They are "Her Majesty's Judges". But that is not the purpose of the titles and the robes. It is to induce public respect for the office.

That is why on formal occasions, the entry of the Judges is preceded by a crier calling upon people "to draw near and give their attendance" and ending with the invocation "God Save the Queen and my Lords the Queen's Justices" - a tradition I understand continues with some minor change to the wording in your Supreme Court.

If the judiciary are to function properly, as Hamilton clearly intended they have firstly to be drawn from the ranks of those who are both learned and have integrity and they also have to be afforded the respect due to their high office, particularly by those who appear before them or comment on their decisions - both in and out of Court.

# posted by

Mourad : 4:02 AM

The expression "legislating from the bench" is much misused.

Quite so.

# posted by

Asher : 9:11 PM

mourad said...

If I recollect rightly, Alexander Hamilton, under the pseudonym "Publius" was extolling the virtues of the independent judiciary - as then known in England, in particular the provision where Judges are appointed "quamdiu se bene gesserint" - during good behaviour - only removable by impeachment.

We are not talking about how the elected branches should interact with the judiciary, but whether the judiciary may constitutionally assume the powers of the elected branches. Both the text of the Constitution and the Founders intent say no.

# posted by

Bart DePalma : 12:38 PM

The Rasmussen poll posed the question whether judges should follow the text of the Constitution or ignore the Constitution and rule based on what the judge thinks is fair.

Unsurprisingly, 60% of respondents think that Judges should follow the Constitution, a rather shockingly low number for such a basic precept as having judges follow the law. However, 49% of Obama supporters believe that the judiciary ought to be creating their own law (aka legislating from bench) based on their own sense of fairness.

Yet another element of our cultural divide.

# posted by

Bart DePalma : 12:44 PM

"Bart" DeFlacka:

Unsurprisingly, 60% of respondents think that Judges should follow the Constitution, a rather shockingly low number for such a basic precept as having judges follow the law.

Maybe they should have asked whether preznits should follow the law.... ;-)

Cheers,

# posted by

Arne Langsetmo : 2:54 PM

Arne:

Haven't we seen this before? The very Federalist letter Bart quotes in support of his views actually says in terms that were the Judges (who are to be learned in the law and of proven integrity) think that a law is unconstitutional then they should so hold. That is their role. Hamilton explains why. The reasoning is impeccable.

Bart misquotes the actual questions of the poll to a degree worthy of his mentor Dr Goebels:-

Bart SAID it said: "The Rasmussen poll posed the question whether judges should follow the text of the Constitution or ignore the Constitution and rule based on what the judge thinks is fair.

What it ACTUALLY said is:- "(A) In making decisions, the Supreme Court should only consider the original intentions of the authors of the constitution. (B) In making decisions, the Supreme Court should consider changing times and current realities in applying the principles of the Constitution."

(A) is the heterodox approach to constitutional interpretation- the originalist position ; (B) is the orthodox approach. See my earlier post:-

70. A constitution should be interpreted as an evolving statement of a country's supreme law.

71. This is not to substitute the personal predelictions of individual judges for the chosen language of the constitution. Rather, it is a recognition that the values underlying a constitution should be given due weight when the constitution falls to be interpreted in changed conditions. A supreme court which fails to do this is not fulfilling its proper role as guardian of the constitution. It is abdicating its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide. Dickson J, delivering the judgment of the Supreme Court of Canada in Hunter v Southam Inc [1984] 2 SCR 145, 155, summarised the responsibility of the judiciary:

"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."

What Bart actually wants is for the Supreme Court to abdicate its constitutional responsibilities - one can only wonder why.

# posted by

Mourad : 4:26 PM