Balkinization  

Friday, May 20, 2011

More on Mazzone

Sandy Levinson

It would really be easier if we allowed opinions, so I will do so, should Jason wish to continue this conversation without our having to engage in completely independent posts.

I appreciate the tone of his reply, but I still think he's dead wrong. As Jack has suggested, there is no reason whatsoever to treat the phalanx of Republican no votes as "sincere" assessments of Prof. Liu's qualifications for office. Prof. Liu was endorsed by, among others, Ken Starr and Clint Bolick, who are scarcely catspaws of the dreaded liberal conspiracy to take over the judiciary. If one could take the Senate seriously as a forum for "deliberative democracy"--which is preposterous--then one might take seriously the refusal of 43 Republicans to say no to even bringing him for a vote. But the vote is nothing else than political thuggery made possible by the abuse of Rule 22 (which, to the sure, Democrats don't have the spine to challenge).

I also confess that I'm mystified by Prof. Mazzone's notion that judges should have [NOTE: I OMITTED THE NEXT TWO WORDS IN THE ORIGINAL POST:] not have "constitutional visions." Does he believe in some pre-Realist notion of law? Indeed, as our fellow blogger Brian Tamanaha has demonstrated, even the pre-Realists knew full well that it actually mattered who the judges were precisely because they did not all share the same vision of the Constitution. Are we to take seriously the absurdity of Chief Justice Roberts's notion of the judge as the naive "umpire"?

The federal courts have, at least since the Midnight Appointments of John Adams, been thoroughly enmeshed in party politics and political agendas. Perhaps that's a mistake. We could, after all, decide to elect judges on a non-partisan basis, or to have judges appointed by special commissions that are, as if by magic, totally untainted by any sorts of "high political" considerations. But what, exactly, would they look at in deciding whether someone is fit to be a federal judge. Good grades, high LSAT scores, etc., etc. I do agree with him, of course, that there are lots of people who are qualified to serve as federal judges. Perhaps the best procedure would be lottery selection, though we'd have to decide who gets into the pool in the first place. But, just as he reminded me that we do not have a system that limits the terms of federal judges, I would remind him that, with some exceptions, presidents have been allowed at least a vote on appointees who are thought to be relatively qualified. Perhaps we're in the process of transforming that expectation, just as the filibuster was transformed in the past several decades into an ordinary way of doing business.

I am afraid that the more Prof. Mazzone encourages us to treat this afternoon's vote as anything other than a travesty of the political process, the more unsustainable his own positions become.

Comments:

Sandy --

There is also "there is no reason whatsoever to treat the phalanx of [Democratic] no votes" against Miguel Estrada and the other filibustered Bush nominees "as 'sincere' assessments" of their qualifications for office either. Since Democratic Senators began seeking to oppose judicial nominees on ideological grounds in the 1980s, the targeting of nominees has been based upon a combination of the degree to which a party found a nominee objectionable and that nominee's vulnerability. In this case, Liu was particularly vulnerable because it was payback for a) the five successfully filibustered Bush nominees, b) Liu's role in opposing Roberts and Alito with overwrought and misleading arguments, and c) Democratic obstruction of Peter Keisler, given that Liu's involvement with ACS is parallel to Keisler's in the Federalist Society.

Further, it is worth noting that yesterday's vote did not mark the first defection from the "Gang of 14" deal. Two Democratic members of the "Gang of 14" had previously voted against cloture for Brett Kavanaugh.

If we wish to end the "tyranny" of Rule 22, yesterday's vote may move us closer to that goal. Just as the investigations of President Clinton helped produce a bipartisan accommodation to end the Independent Counsel law, perhaps the use of the filibuster to block a prominent Democratic nominee will lead to a real bipartisan agreement to end all filibusters of judicial nominees.

Jonathan H. Adler
 

Liu is hardly the best nominee to make a stand on the unfairness of the confirmation process, given that he himself at least implied that Alito's nomination should be filibustered.

Obviously Liu thinks ideology is a legitimate criteria and that Senators should use all the tools at their disposal to block an objectionable candidate.

He was hoisted on his own petard.
 

I appreciate Professor Levinson's additional comments but I still disagree on the two main points. I don't think that Olympia Snowe and Susan Collins are "political thugs." And while I understand the disappointment of Liu's supporters, I don't think that the vote yesterday was a "travesty." Nobody is entitled to be a judge; no nominee is entitled to a vote on the merits; no President is entitled to have his preferred candidate, however well qualified, confirmed. Perhaps the Ninth Circuit would be a better court with a Judge Liu, but it will manage perfectly well without him. On the whole, President Obama has been successful in seating judges, including two Supreme Court justices in his first term. It's possible, as Jack suggested yesterday, that the game has now changed for lower court nominees. But it's too soon to conclude that the process is now broken.

It is also inaccurate to describe federal judges as "thoroughly enmeshed in party politics and political agendas." This view reflects an unfortunate focus on an unrepresentative set of Supreme Court cases (abortion, affirmative action, and the like) involving issues with a political dimension. (And even with respect to such cases, in my mind it's not so easy to explain what judges have done as reflective of any coherent political agenda.) Instead, most of the work of the federal courts, including the Supreme Court, involves resolving real-world disputes that are far removed from party politics and agendas.
 

Jason and I completely agree that no one is "entitled" to serve as a federal judge. I also might have used a term other than "thoroughly enmeshed," if that suggests to anyone that federal judges play an active role in standard-form party politics (such as serving as delegates to conventions, etc.), which they surely do not. (Though, that being said, one shouldn't ignore that many judges had visions of their becoming president, the last one, I believe, being William O. Douglas, and, of course, Charles Evans Hughes did step down to run for the presidency in 1916 (and we have reason to regret that he di not win!). Still, I do think that much of the time in our history the parties have been divided along ideologial lines that include fairly delineable "constitutonal visions," and it is simply a mistake to ignore that reality. And, increasingly, for better and, possibly, for worse, justices see part of their job as trying to mobilize the public behind their specific "constitutional vision." See, e.g., Justices Scalia and Breyer.

Even if I agree (as I may well) that "most" of the work of "inferior courts" involves fairly technical legal issues, enough does not, so that I still want judges with a commendable "constitutionial vision."

Jonathan Adler is correct that Democrats also engaged in ideological voting (which I endorsed at thetime). If Republicans want to classify what happened to Miguel Estrada as "thuggery," that is their privilege. Perhaps it's only what Mark Tushnet has labeled "constitutional hardball." Although I object, on political grounds, to what the Republicans did to Prof. Liu, my objection to Jason's post is his seeming defense by suggesting that it is altogether proper to give the minority party a veto on judicial appointments even if they can't get close to a majority vote.

Also, I note for the record that one Democrat, Ben Nelson of Nebraska, also voted against cloture, just as one Republican, Lisa Murkowski, decided that she actually meant what she said several years ago with regard to nominees who get through committees being presumptively entitled to a floor vote.
 

As I understand Liu's position on Alito, it was that (a) Alito was a poor candidate based on his previous rulings; and (b) his nomination should therefore be rejected.

If the votes against Liu were based on disagreements with his previously expressed legal views, that certainly seems to me like a legitimate ground for rejecting him or any other nominee.

However, the claim that his rejection amounts to "payback" rings false. Liu, again as I understand it, didn't advocate a filibuster of Alito, he advocated Alito's rejection on the merits. Moreover, many of the Republican senators who voted against Liu were on record as condemning filibusters of judicial nominees as unconstitutional. Their behavior was thus hypocritical and violated their oath of office.

This leads me to the view that Prof. Mazzone's sanguine reaction to the vote is unjustified. Each recent presidency has seen the opposition party ratchet up the judiciary battles beyond the previous limits. That's a broken process.

Like Prof. Levinson, I'd favor 18 year terms, with SCOTUS appointments staggered every two years. A vote should be mandatory within a reasonable period of time with no filibusters.

18 year terms strike me as reasonable for lower court judges as well, with the possibility of additional time if elevated to a higher court.
 

Mark Field said:
"Liu, again as I understand it, didn't advocate a filibuster of Alito, he advocated Alito's rejection on the merits. "

Given that there were 55 Republican Senators, the idea that he wasn't at least implicitly calling for a filibuster rings hollow.
 

Sandy --

I'm still a bit confused as to why you would characterize the treatment of Liu as "thuggery." If ideological opposition is sufficient reason to vote against and filibuster a nominee, then Liu would seem to be an ideal target. If unilateral disarmament is impractical and unwise, Liu is again the most obvious target given his participation in trying to block Alito and Roberts (and grossly mischaracterizing the judicial opinions of the latter). Even if one sees the GOP filibuster as simple retaliation, I'm not sure how that is "thuggery." It's not usually the retaliator who gets labeled the "thug." If you wish to call the opposition to Estrada, et al., nothing more than constitutional hardball, fine, but it's not "thuggery" when the opposition decides to play by your rules, even if they've often said they'd rather play a different way.

Jonathan H. Adler

but the rejection of Estrada would not be. There was never any claim Estrada was unqualified -- he had far more relevant experience than Liu -- and he had substantial support from legal luminaries across the aisle. He also had more support in the Senate, as there were some who voted for cloture on Liu who would have voted against him on the merits (e.g. Webb).
 

It makes no sense to say that Liu was "implicitly" calling for a filibuster of Alito. That standard would make it impossible ever to oppose on the merits any nominee who shares the same political party as the Senate majority.

If ideological opposition is sufficient reason to vote against and filibuster a nominee

I may be misunderstanding him, but I read Prof. Levinson as saying that ideological opposition is fine but filibusters are not.
 

I guess the first question here is whether judicial nominees should be subject to filibuster. I recognize that a number of Republicans believe (or claim to believe) that it is unconstitutional to subject judicial nominations to a filibuster. As of yet, however, this position has failed to sway the Senate to change the rule.

Now perhaps it is true, as Mark Field suggests, that it is hypocritical for Senators who have taken that position to nonetheless vote for a judicial filibuster. But, if so, it would seem to be well within the minimum level of hypocrisy we expect from our elected representatives.

The second question is what justifies exercising the filibuster for a judicial nominee. The Gang of 14 agreement is that there must be “extraordinary circumstances,” whatever that means. I don’t think that ever meant, as Professor Balkin suggests, that filibusters would be limited to clearly unqualified nominees. If a nominee were really that unqualified, a filibuster probably wouldn’t be necessary.

Instead, I think that “extraordinary circumstances” basically means that the Senators won’t routinely filibuster judicial nominees, but will do so only in exceptional cases. As a practical matter, this probably means that the opposition party will pick out the weakest of the herd, whether it is based on limited experience, ideology (or inflammatory ideological remarks), or character/temperament. In Liu’s case, it appears to be based on a combination of factors, but primarily his intemperate testimony against Justice Alito.

As Professor Kerr pointed out, this is pretty much a self-inflicted wound on Liu’s part. Maybe it is in some sense “unfair,” but I don’t hear anyone arguing that it is somehow more unfair than it was for the various Bush nominees who suffered the same fate.
 

Mark Field said...
"It makes no sense to say that Liu was "implicitly" calling for a filibuster of Alito. That standard would make it impossible ever to oppose on the merits any nominee who shares the same political party as the Senate majority."

Well what was Liu's motivation? Why fly all the way from California to D.C.? Did he expect the force of his charisma and argument to convince 6 Republicans? Does he just like to hear himself talk? Is he a publicity hound?
 

It's the obligation of the minority to present arguments in opposition. That's what opposition parties do.
 

Bradley, your argument seems to rely on the premise that Republican Senators are blind idiots incapable of or unwilling to consider a matter for themselves. While that may be accurate, there's no reason to assume that Liu shares your degrading view of the Republican party.

"no nominee is entitled to a vote on the merits"

Every nominee has the right to a vote on the merits. The Senate is empowered to advise and consent, not to refuse to consider.
 

So Lui thought that Alito was the partisan hack, but that the Republican Senators circa 2006 were wise, thoughtful gentleman-politicians?

In that case he is too stupid to be on the bench.
 

"Every nominee has the right to a vote on the merits. The Senate is empowered to advise and consent, not to refuse to consider."

As a statement of inter-branch courtesy, I'd endorse that. As a constitutional matter? Nah. There are very few things the Constitution actually mandates that the legislature do, and bringing a matter to a vote, be it a bill or nomination, is not among them.

I'd suggest that we remedy that with an amendment, but amendments seem to have gone out of fashion, due to their annoying capacity to be rejected by the states.
 

"Since Democratic Senators began seeking to oppose judicial nominees on ideological grounds in the 1980"

Ideology was a grounds for opposition before the 1980s and it takes to to tango here. The opposite you cite came when the Reagan Administration made ideology more important.

"Liu was particularly vulnerable because it was payback"

a] who? and again, why were they filibusters? personal pique? They were filibustered because Clinton nominees were blocked and Bush played hardball.

b] Give me a break. "overwrought" arguments. Like stating his positions? "misleading" -- listening to the Republicans twist his positions, pot calling kettle black

c] Keisler was opposed for various reasons. The ACS also is in no way as important or influential as the FS. The two are not of the same caliber.

"Brett Kavanaugh"

There was an "extraordinary circumstances" rule there. I'd need to know why they blocked a chief writer of the Starr Report.

As to bipartisan agreement, if someone supported by various conservatives isn't good enough, yeah, not holding my breath.
 

"On the whole, President Obama has been successful in seating judges"

So, those who are concerned about how slow the confirmation process has been going during his term are wrong? If confirming Sotomayor and Kagan with a few Republican votes is "successful" along with this, I guess it's a matter of expectations.

On the let's all be friends front, I agree with Brett that there is no "right" to confirmation. I don't know how his hypothetical amendment would work, but as with Mark Field's term limit, one might be useful. But, in answer to a filibuster, why the "states" is the issue here is a bit unclear.
 

The problem over the last few years hasn't been a slow confirmation process. It's been a slow nomination process. Obama was absurdly slow getting off the post on nominations, and still has a backlog of empty positions he hasn't bothered to nominate anybody for.

The Senate can't confirm nominees that never get nominated, you know.
 

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