Creating a Democracy 2.0 to Pass a New Deal 2.0

Heather K. Gerken

Right now there's an interesting discussion going on among scholars, policymakers, and commentators about (1) whether the current fiscal crisis ought to prompt a New Deal 2.0, and (2) what a New Deal 2.0 should look like. If we want a New Deal 2.0, we will need a Democracy 2.0. After all, at some point the Obama Administration is going to have to get these policies passed.

Some naively think that the Obama administration can pass anything it wants because the Obama campaign had so many energized supporters and such an impressive grassroots network. That's a mistake. Electioneering is different from governing. Note, for instance, how hard it's been to convert Obama for America into an equally muscular Organizing for America. Elections are the rare moments when voters pay attention; the drama of the race focuses people's attention on the issues, and candidates provide human stand-ins for abstract policy proposals. Politics, in short, is what happens when policy gets personal.

When candidates turn to the workaday project of governing, voters tend to fall away. They stop organizing, they stop volunteering . . . they even stop paying attention. That is precisely why passing policies comparable in scope to the New Deal is exceedingly hard to do.

In my first post, I consider whether the institutions that have grown out of recent elections -- Organizing for America, MoveOn, Talking Points Memo, DailyKos, ActBlue -- are capable of creating what Justice Frankfurter called a "civically militant electorate," keeping voters sufficiently involved in the project of governance to hold politicians' feet to the fire.

In my second post, I ask whether we should instead resign ourselves to the possibility that citizens are not going to actively police their representatives between elections and thus place our faith in their ability to "vote the bums out" at the next election. Anyone familiar with the astonishingly high re-election rates in Congress will be deeply skeptical of this approach. Voters use party ID as a rough proxy for holding election officials accountable. The problem is that voting based on party ID isn't usually enough to put the fear of God into politicians; it's too rough a proxy for holding politicians accountable on specific issues. Americans want health care reform, yet they routinely vote for politicians who don't provide it. As long as people vote based on general conditions, not specific legislative failures, the status quo remains a pretty safe option for politicians.

The question, then, is whether we can give voters more fine-grained shortcuts so that voters start punishing politicians not just for presiding over a fiscal crisis, but for failing to enact health care reform. I offer a few ideas along those lines in my conclusion.

Posted 1:32 PM by Heather K. Gerken [link]

Judicial Activism: Another Take

Heather K. Gerken

For those interested in Jack's post on 'judicial activism," I have a different take on Politico. It argues that the real problem with the phrase is that it's used to describe results we don't like, when we should be focusing on how the judge ended up there in the first place.

Posted 10:53 AM by Heather K. Gerken [link]

Courts Gone Mild

JB

The term "judicial activism" may well be incoherent: for the proper question is not whether judges are active or passive but whether they are endeavoring to be faithful to the Constitution's text and enduring principles. But the practice of attacking the courts and talking back to them using phrases like "judicial activism" is quite important. It is important because, ironically, it keeps the work of courts responsive to popular will over long periods of time.

The American Constitution has lots of empty spaces and abstract guarantees. They have to be filled in over time and implemented in concrete circumstances. This task-- constitutional construction-- is a major job of courts.

A recent column by Ross Douthat is entitled "Justices Gone Wild," which suggests that our judges are indeed, on a rampage, and it is really only a miracle that we have been spared from destruction by their crazy hijinks. In fact, though, judges are almost never on a rampage. Over the past half century, political scientists have shown that the Supreme Court rarely departs for very long from the views of the national majorities, and it is part of the national political coalition, not independent of it. If the Justices get out of line-- usually because political majorities have changed and moved on to new positions-- the appointments process shifts the median Justice and pushes the Court back into line. In addition, even without new appointments, the Justices are constantly subject to the political pressure of public opinion. Judicial independence is only relative. It insulates courts from day to day pressures, but the cumulative pressures are very real and in the long run they shape what courts do.

In fact, in a period of extreme political polarization, such as the period in which we now live, the Supreme Court tends to be far more moderate than the leadership of either of the two major political parties, which, ironically, makes it a better representative of national public opinion.

Because political pressure is pushing so heavily from advocates on both sides, the Supreme Court tends to come out in the middle, making neither side entirely happy, and egging them on to even more angry denunciations about opposite sets of cases. (For example, the left screams about abortion restrictions and gun rights, the right screams about affirmative action and Kelo). This leads to more moderation, more angry denunciations, and so on.

Thus, instead of Courts Gone Wild, it would probably be more accurate to describe our current situation as Courts Gone Mild. Or perhaps even more accurately, the slogan should be Courts Pushed Into the Middle of the Road by Two Political Parties Gone Wild.

When it looks to us as if judges are on a rampage, then, it is usually because they are influenced by popular opinions that we don't agree with. That may be because we are part of a regional majority rather than a national majority. Or it may be because the judges were put in place by a dominant social or political movement that we oppose.

Douthat gives two examples of judges gone wild. The first is the civil rights revolution of the 1960s. The second is the Rehnquist Court's federalism revolution in the 1990s. The first is the result of a liberal court working hand in hand with a liberal national political majority. The Warren Court and early Burger Courts mostly upheld national legislation; but they brought local and state governments into line with the then-dominant liberal values of the national political coalition. The far more conservative Rehnquist Court of the early 1990s was the result of the triumph of the conservative movement. It promoted federalism and devolution in response to a public shift toward those themes. (Remember Newt Gingrich and the Contract with America?) The Rehnquist Court also limited or struck down a variety of civil right provisions passed by previous Congresses that reflected a more liberal coalition that conservatives opposed.

In the 1960's political conservatives were appalled by the Warren Court's civil rights revolution, just as political liberals in the 1990s were made apoplectic by the Rehnquist Court's federalism revolution. In each case, they screamed judicial activism (or the equivalent slogan of the day). In each case, however, they were actually in the political minority nationally even if they enjoyed majority status in parts of the country.

As I like to put it, in the long run the Supreme Court is not countermajoritarian-- it is nationalist. People often say that other people-- the ones they disagree with-- turn to the courts when they cannot get what they want in the legislatures. It would be more correct to say that national political majorities turn to the courts to implement their values in ways that would be difficult or inconvenient otherwise, or might threaten to split their coalitions.

It may sound, then, as if attacking courts for activism is just sour grapes for political losers. Quite the contrary. Attacking the work of the courts is as American as apple pie. It is an important part of the way that a social and political movement gains adherence and persuades others that their vision of the Constitution and their views of public policy are better ones. Thus, out of defeat in the courts often comes later political victory. That political victory, in turn, shapes the work of the courts in the next generation, which revise or substantially reshape the work of previous courts. People who do not like those revisions, in turn, claim that the courts have gone wild; they engage in political activism to shape public opinion, and so on.

If we take a wider view of history, then what we do not see is judges on a rampage. Rather we see a judiciary that is in the long run responsive to changes in popular opinion and the national political coalition. "Judicial activism" may be an incoherent slogan, but the practice of complaining about courts and talking back to them is what makes our constitutional system responsive to popular will over time.

Posted 9:35 AM by JB [link]

Equal Rights/Rites, Responsibilities, and Respect for New Hampshire Families

Linda McClain

On June 3, Governor John Lynch signed legislation that makes New Hampshire the sixth state in the U.S. in which same-sex couples may enter into civil marriage. His signing statement declares: “Today, we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities – and respect – under New Hampshire law.” As have some other New England governors, he stated that he previously supported civil unions for same-sex couples, but now believes that “a separate system is not an equal system.” The warp speed of this development in New Hampshire – just two years ago, the governor signed the civil union law (enacted by the legislature without any prod of a judicial ruling) - indicates a significant shift, in some states, of understanding of the demands of equality. As various states enacted civil unions, legislators and governors spoke of them as honoring a state’s commitment to equal rights and civil liberties while preserving its religious and cultural traditions about marriage. Now, however, they view this as a compromise that fails to accord the families formed by same-sex couples equal dignity and respect. Same-sex couples, Governor Lynch said, had made “compelling arguments” about why separate was not equal. Will this emerging rhetoric of equal rights, responsibilities, and respect have an impact on other states that do not currently afford any legal recognition to the relationships of same-sex couples? Will it shape the debate over whether the federal government should accord such recognition for purposes of federal law? Will opponents of opening up civil marriage view the religious freedom protections as adequate?


The civil union strategy addressed religious freedom concerns by preserving traditional definitions of marriage. New Hampshire’s new strategy, like that of other New England states that recently moved from civil unions to civil marriage, is to distinguish civil and religious marriage and cast the legislation in terms both of extending marriage equality and affirming religious freedom. New Hampshire is “standing up,” Governor Lynch explains, both for civil liberties of same-sex couples and for religious liberties. Civil unions, as it were, were an important step to a fuller realization of New Hampshire’s tradition of “opposing discrimination” and of “tolerance for all.” Civil marriage takes the necessary further step. At the same time, to satisfy the governor’s insistence on protecting religious freedom, the bill affirms the “exclusive control” by religious entities of their own doctrine about who may marry and also exempts religious organizations, associations, or societies, or individuals “managed, directed, or supervised” by such institutions from solemnizing marriages and from a wide range of activities connected with celebrating and promoting marriages, when such marriages violate their religious beliefs. How these “conscience protections” will play out in everyday life (for example, may a religiously devout employee of a secular florist shop assert them because his faith “directs” him?) and whether they will lessen opposition to opening up civil marriage remains to be seen.

What about implications for the federal debate? President Obama, after all, favors states enacting civil union law as the means to accord equality to same-sex couples, rather than marriage, because of his personal understanding of what marriage is. And his civil rights agenda includes support for repealing the Defense of Marriage Act and enacting legislation making the numerous federal benefits and rights linked to marriage available to same-sex couples in civil unions and other legally-recognized unions. Will this message from New Hampshire and other New England states that separate is not equal in terms of dignity, respect, and legitimacy call into question the civil union solution? Should it?

Labels: civil unions; marriage; civil rights; state laws

Posted 11:11 AM by Linda McClain [link]

New and Notable: Nevada's Domestic Partnership Act

Linda McClain

With comparatively little notice, on May 30 and 31, Nevada’s legislature overrode Governor Jim Gibbons’s veto of a new Domestic Partnership Act (Senate Bill 283). Several features of this Act warrant comment. First, the legislature passed it mindful of Nevada’s constitutional amendment (approved by voters in 2002) providing: “Only a marriage between a male and a female person shall be recognized and given effect in this state.” Thus, the Act states: “A domestic partnership is not a marriage for the purposes of . . . the Nevada Constitution.” But marriage is the clear reference point for the “social contract” between domestic partners. The Act provides them “the same rights, protections and benefits” and subjects them to “the same responsibilities, obligations and duties” under law as spouses, former spouses, and surviving spouses, with some exceptions (such as employers providing health care to partners). The law of marriage supplies the substance of this new status.

But entering this new status is – as with other state domestic partnership laws – different than entering marriage. Persons seeking to register as domestic partners must file a statement declaring that they “have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” They must share a “common residence.” However, by contrast to some state laws, persons in Nevada need not declare their intention to be financially responsible for each other. The Act itself, by referencing the rights and responsibilities of marriage, will impose on domestic partners –as on spouses – a duty of mutual support.

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Second, Nevada’s new law is available both to same-sex and opposite-sex couples. By contrast, California’s domestic partnerships law is open only to older opposite sex couples (at risk of losing important retirement or medical benefits if they marry). In this respect, Nevada is like several European countries where registered partnerships are available to opposite sex and same-sex couples. The Act does not include findings about why Nevada made this striking choice. Like others, I have argued that creating a new civil status alternative to civil marriage might provide a good option for heterosexual couples who resist marriage either because of its historical association with sex inequality or its religious connotations. Will any opposite-sex couples in Nevada choose this new status? Will critics charge that the Act weakens marriage precisely because it provides this alternative?

Third, Governor Gibbons’s veto of the Act highlights the recurring question of the interplay of legislative and constitutional change. He asserted that the Act contradicts the will of the people, as expressed in the 2002 constitutional amendment and that “only the voters” should determine whether the rights of marriage “should equally apply to domestic partners.” However, that amendment does not expressly bar civil unions or domestic partnerships. Indeed, when it was on the ballot, some supporters stressed this fact.. The governor also claimed that many of the rights granted in the Act are already available by way of private contracts. But private contract cannot secure all the significant rights and responsibilities linked to marriage; at best, it provides what I have elsewhere called “partial equality.”

In sum, the Nevada Domestic Partnership Act illustrates how a state legislature constrained by such a constitutional amendment may find a way to maneuver to create a new legal status to support and recognize intimate relationships other than civil marriage. It changes yet again the landscape in the United States with respect to the recognition and support of intimate relationships.

Labels: constitutional law, domestic partnerships, marriage

Posted 3:26 PM by Linda McClain [link]

President Sotomayor?

Sandy Levinson

Imagine that Republicans really do have a death wish and that they do indeed decide to (successfully) filibuster her nomination. (I suspect that there are some who do have the requisite death wish, but that success is hard to envision.) What next? Well, she could take a page from Jeff Sessions's book: Judge Sotomayor could resign from the Second Circuit and challenge Kirstin Gillibrand's for the Democratic nomination for the Senate. Given Sen. Gillibrand's vulnerabilities among liberal Democrats, I would think that Sotomayor would win in a walk and then keep the seat for the Democrats in the fall of 2010. Then she would have six years to establish herself as the plausible successor to President Obama in 2016, at which time the Hispanic vote will be of even greater import in presidential politics than it is now. Unlikely, to be sure, but stranger things have happened in American politics. (Her first act as President, of course, would be appointing former-President Obama to the Supreme Court, preferably as Chief Justice.)
Posted 6:09 PM by Sandy Levinson [link] (62) comments

Respect for a Coordinate Institution

Mark Tushnet

Apparently some Republican leaders in the Senate are thinking about doing what they can to delay Judge Sotomayor's nomination hearings until September, asserting that they need the time between now and then (rather than between now and July) to study all the opinions she rendered as a district judge and as a judge of the court of appeals. (Whether the latter group includes all the cases in which she sat on a panel is unclear to me from the reports I saw.) I've also seen reports that Senator Cornyn has said that Republicans don't have the votes to mount a filibuster.

If Senator Cornyn's right, I wonder whether efforts to delay the hearings -- if there are such efforts -- demonstrate appropriate respect for the Supreme Court.

The assumption seems to be that Judge Sotomayor will be confirmed (absent the disclosure of some personal scandal -- and perhaps delay is "justified" on the ground that the longer you take, the greater the chance that something will turn up, in Dickens's phrase). If that's so, though, it would seem to make sense from the point of view of running a government to get her at her post sooner rather than later, especially if, as most people assume, the votes she casts aren't going to be dramatically different from those Justice Souter has cast. Delay puts a burden on the Court (for a short time, admittedly), and what it gains seems to me quite unclear, aside from some possible partisan advantages (and even that possibility seems to me not that large).



Posted 4:55 PM by Mark Tushnet [link]

A Traffic Sign for John C. Calhoun

Ian Ayres

Crosspost from Freakonomics:

New traffic signs have appeared on the drive to my son’s school that perplex me and have me thinking of John C. Calhoun.

1) Why so many words/pictures?

As I count it, there are eight words/pictures in the above sign. That’s a lot for a driver in a moving car to absorb while he or she is driving. And reading down, you have to be able to shift from words (state law) to pictures (yield sign) to words (to) to pictures (pedestrian sign) to words (within crosswalk) to pictures (exclamation sign).

Is having such a long message really more effective than these traditional alternatives:

Of course, the proliferation of words in the new sign might be what makes it more effective. Drivers slow down to read all of the words/symbols. Maybe this is an example where verbosity saves lives.

But I doubt it. What’s more, I doubt that this has been tested empirically. I’d love to meet its tailor. We’ll send some Freakonomics schwag to the first reader who can send an example of a traffic sign with the most words/symbols directed toward moving vehicular traffic with an injunctive message. I’ve encountered longer parking signs. I’ve also encountered longer non-injunctive highway signs that give information about the next exit. But I can’t remember seeing a longer “Thou Shall (Not)” sign.

2) Why “State Law”?

Is it really necessary to tell us that the obligation to yield for pedestrians comes from state law? I understand that the government has a monopoly on putting up these traffic signs. Speed limits don’t incorporate the source of the injunction to drive less than 35 miles an hour. Would the signs be less effective if they excised these two words? And by emphasizing them, do these signs make other traffic injunctions less authoritative?

3) Why “State”?

Here’s a question for Steven Pinker. Why would the sign sound wrong if we left out the adjective “state”? Seatbelt billboards often say that wearing seatbelts is “not just a good idea, it’s the law.” They don’t mention the source of the law. The Miranda warning doesn’t say, “You have a constitutional right to an attorney.” Or “You have a right to an attorney that was dreamed up by activist judges.” Is the emphasis necessary because people would not abide by a traffic rule that was merely a federal (or municipal) law? This is a sign that only an advocate of state rights über alles, like John C. Calhoun, could love.

Posted 10:25 AM by Ian Ayres [link]

Terrorism, Domestic and Foreign

JB

The assassin who killed Dr. George Tiller at his church, murdered Tiller in order to keep him from performing therapeutic abortions for women. The murderer is one of a long line of religiously inspired radicals who have tried to shut down abortion providers through bombings and murders. They are not the mainstream of the pro-life movement; they are a fringe sect who are not content to protest abortion or even to engage in non-violent civil disobedience. Instead, they believe that they are justified in bombings and killings to prevent great evils that they regard as contrary to God's fundamental law.

Using violence-- like bombings and murders-- to intimidate people in this way is terrorism. It is so in common language, it is so defined in U.S. law. The terrorist in this case and the terrorists in previous abortion clinic bombings and murders are, as far as I am aware, not foreigners. They do not have Arabic or Islamic names. They are American and they live in the United States. However, just like Islamist terrorism, this terrorism is driven by fanatical religious belief. Many religiously inspired terrorists live in other countries; some, however, (who include both Christians and Muslims among their number) live in the United States and are U.S. citizens or resident aliens.

If bombings of abortion clinics and murders of abortion providers are acts of terrorism, should we treat the problem of terrorism that they present the way we treat the problem of terrorism from Al Qaeda and other groups? That is, should Scott Roeder, who is currently suspected of being Dr. Tiller's murderer, be treated the way we would treat a suspected terrorist who we believe may have ties to Al Qaeda? Should we treat him like Jose Padilla, an American citizen who was apprehended at O'Hare airport and detained in a military prison in the United States for several years? (That is, until the government transferred him to the criminal process in order to avoid judicial review of his detention.)

In particular, consider the following questions:

(1) Should the United States be able to hold Roeder without trial in order to prevent him from returning to society to kill more abortion providers? If we believe that Roeder and other domestic terrorists will plan further attacks on abortion providers and abortion clinics if we let them free, can we subject them to indefinite detention?

(2) The Obama Administration is currently considering a national security court to make decisions about the detention of suspected terrorists, with the power to order continued preventive detention. Should this court be able to hear cases involving U.S. citizens, whether they are Muslim or Christian?

(3) The U.S. government has argued that at least some terrorists should not be tried through the criminal process with its various Bill of Rights protections but instead can and should be tried through military commissions, where the standards of proof and various procedural protections are lowered. If Roeder is a domestic terrorist, can the U.S. government subject him to trial by a military commission instead of a criminal prosecution? Although the current version of the 2006 Military Commission Act does not bestow jurisdiction to try citizens, could we or should we amend it to include citizens who we believe are likely to commit or have committed terrorist acts?

(4) One of the most important reasons for detaining terrorists (suspected or otherwise) is to obtain information about future terrorist attacks that may save lives and prevent future bombings. To procure this information, can the government dispense with the usual constitutional and legal safeguards against coercive interrogation? Should it be able to subject Roeder to enhanced interrogation techniques, including waterboarding and other methods, to determine whether Roeder knows of any other persons who are likely to commit violence against abortion clinics or against abortion providers in the future? Would your answer change if you believed that an attack on an abortion provider or a bombing of an abortion clinic was imminent?

(5) Terrorists and terrorist organizations need money and resources to operate effectively. Often the only way to stop them is to dry up their sources of financial and logistical support. Can the U.S. government freeze the assets of pro-life organizations and make it illegal to contribute money to a pro-life charity that it believes might funnel money or provide material support to persons like Roeder or to organizations that practice violence against abortion providers? Can the government arrest, detain, and seize the property of anti-abortion activists who helped Roeder in any way in the months leading up to his crime, for example by giving him rides or allowing him to stay in their homes?

My assumption is that the government may not do any of these things. Roeder lives in the United States. He should be treated according to the ordinary criminal process. We should not be able to strip him of his rights simply by calling him a suspected terrorist, and it should make no difference whether he is a Muslim or a Christian, whether he is white or brown. And pro-life organizations, like Muslim charities, have rights of freedom of association that governments should protect lest we effectively criminalize political association and belief in the name of national security.

The difficulty is that our national deliberations on terrorism have largely proceeded on the assumption that all terrorists are non-Americans and/or non-Christians who live in or come from distant lands. They are not part of the American community, they are not "people like us" and therefore do not deserve the rights and protections of "people like us." We can detain them indefinitely, and even subject them to interrogation procedures that we would never apply to "real Americans."

But terrorism is a tactic, not a religion, an ethnicity or a nationality. There are, and always have been, American terrorists, including white and Christian terrorists. We have tended to obscure these facts in our debates, engaging in a sort of collective amnesia about domestic terrorism. We have done this even though, prior to 9/11, the country's attention was riveted for months by the Oklahoma City bombing, planned and carried out by homegrown terrorists who looked nothing like the bogeymen we associate with Al Qaeda.

Whenever we contemplate national security courts, or preventive detention, or military commissions, or enhanced interrogation techniques, or any of the various devices that have become characteristic of the War on Terror, we should always stop to ask whether we would apply those techniques and devices to domestic terrorists born and raised in the United States with white skin, Christian beliefs and Christian names. That is because Dr. Tiller's assassin is not the last domestic terrorist claiming to act in God's name. There will be more.


Posted 2:50 PM by JB [link]

Jack Balkin and Heather Gerken on Bloggingheads

Heather K. Gerken

For those interested in election reform, the Democracy Index, and the future of the Voting Rights Act, Jack Balkin and I have a wide-ranging discussion on these and other topics on bloggingheads.tv. Hope you enjoy it.
Posted 11:59 AM by Heather K. Gerken [link]

The Failure of Law and Development

Brian Tamanaha

Decades of work and billions of dollars have been put into law and development projects around the world. Most people involved consider this effort largely a failure. In "The Primacy of Society and the Failure of Law and Development," available for download here, I review these efforts and offer an explanation for the lack of success.


Posted 11:07 AM by Brian Tamanaha [link]

Is Candor From Judges Dead?

Brian Tamanaha

David is puzzled (below) at my previous post suggesting that judicial candor will be a casualty if Sotomayor’s nomination is derailed by her statements that judges occasionally make choices which are influenced by their backgrounds. Candor cannot be a casualty, he says, because it is already dead. “Most scholars and commentators” agree that “candor has not been a positive characteristic for Supreme Court nominees for quite some time,” according to David. For this reason, David does “not begrudge Chief Roberts for saying that judging is like calling “balls and strikes.’”

Unlike David, I don’t believe judicial candor is dead—far from it. Exhibit A is Judge Richard Posner, whose 2005 review of the Supreme Court was entitled “A Political Court.” But let’s put Posner aside, because everyone thinks he is exceptional in his candor. He is not. Here are a few other examples (of many), going back a hundred years:

Federal Circuit Judge Charles Amidon, on the short list for the Supreme Court, observed in 1907 that Supreme Court cases, which “so frequently stand five to four,” are “frequently decided not upon the language of the Constitution, but upon conflicting notions of life. Given the “wide latitude for judicial construction, the court in construing the Constitution is exercising a political power second only to that of the convention that framed the instrument.”

Justice Horace Stern of Pennsylvania remarked in 1937 that “we must, if realists, recognize that courts controlled by a ‘conservative’ personnel and those dominated by a ‘liberal’ membership are more than likely to decide constitutional questions from different angles and with different results.”

Justice Walter Schaefer of Illinois in 1955 wrote that “There is nothing new in the notion that the personality of the judge plays a part in the decision of cases.” Federal Judge Calvert Magruder observed in 1958: “How far the Court should go involves an exercise in judgment. Over the long years the Supreme Court, because the changes in its membership, has oscillated between the right and the left.” In 1963, Circuit Judge Charles Clark observed that sometimes the law does not point toward a clear answer, and in those cases the judge “is on his own for the ultimate result which must reflect his background, his personality, and his inner conviction.”

Plenty of contemporary judges have exhibited similar candor. Judge Kozinski, as I noted previously, observed that judges “do in fact have considerable discretion in certain of their decisions.” Judge Harry Edwards stated that “it may be true that [in a subset of legally uncertain cases] a judge’s views are influenced by his or her political or ideological beliefs.” Judge Patricia Wald offered “a ho-hum reaction to the notion that judges’ personal philosophies enter into their decisionmaking when statute or precedent does not point their discretion in one direction or constrain it in another. In such cases personal philosophies may well play a significant role in judging.”

It is important to note that not one of these judges (and literally dozens more who have said the same) was skeptical about judging, and none questioned the integrity of judges. They were simply being honest about the process.

Justice Roberts' assertion that judges call “balls and strikes” is embarrassingly short on candor in comparison to the above statements by judges. David absolves Roberts from criticism because he was simply adhering to the standard playbook for gaining a seat on the Supreme Court. That is no doubt correct. (Unlike Sotomayor, Roberts, in a more calculated fashion, was careful to not speak too candidly about judging before cameras or in writing.)

It might also be said, however, that Justice Roberts did a disservice to the American public—that he treated people as fools who are incapable of grasping the more complex reality—by not being more honest about the fact that judging, certainly judging on the Supreme Court, is not like calling balls and strikes (except in the narrow sense that judges and umpires alike strive to rule in a neutral fashion).

So we can simply accept that candor about judging from judges is dead, at least for any judge with aspirations to be on the Supreme Court, as David suggests is the case. Or we can collectively resist this conventional wisdom. Judge Sotomayor should be applauded for her candor about judging, and Justice Roberts criticized for his failure to be more forthcoming. Her honesty should count in her favor, and the failure to be forthright should count against a candidate. That was the point of my post.

Of course, Judge Sotomayor should be closely examined in her confirmation hearings on the content of her judicial philosophy. Precisely because she has spoken and written candidly about her views on these matters, there is an ample record to go on. In that sense she should serve as a model.



Posted 10:51 AM by Brian Tamanaha [link] (123) comments

Fixing America's Voting System

JB

In this Bloggingheads.tv video, Heather Gerken and I discuss her important new book, The Democracy Index, as well as the issues in an important Supreme Court case on voting rights, NMAUDNO v. Holder, which will be decided this month.



Posted 10:43 AM by JB [link]