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
McCain declares politicization of judiciary must continue
Well, not quite as you can see from Andy Koppelman's post below. Particularly in light of Republican dominance of the presidency since 1980, McCain's performance was one of the worst speeches about the judiciary since Bob Dole did the same thing in the 1996 election. McCain's speech will provide Tom Frank a perfect example when he writes his next book on what's the matter with (American politics) Kansas. And it is also consistent with the picture Jeff Toobin paints in The Nine of the Republican party being totally captured by the religious right with respect to judicial nominations.
But suppose for a moment we lived in a world where the two major party candidates decided for the good of the country to depoliticize the judiciary. What concessions would both sides have to make for this to work? Here are some random thoughts. First, both candidates would acknowledge judicial nominees of both parties had been treated shamefully and sometimes rejected for no good reason. Second, they would agree that in the future, they would abjure trying to achieve broad policy goals through litigation. Third, they would take at least one controversial issue now under the thumb of the judiciary and throw it back into the political arena. Republicans could pick abortion, Democrats might pick campaign finance reform. It would be understood that there would be no further judicial interference on these issues. Fourth, they would reaffirm the value of judicial independence and raise public awareness on the importance of supporting the judiciary's more routine activities such as enforcing federal law. Fifth, they would reconstitute the nomination process along the lines first explored by President Carter with independent panels required to nominate bipartisan slates of candidates, perhaps with the assistance of public-spirited foundations and a joint ABA/Federalist Society task force. It would be understood that judicial nominees must be roughly divided between the parties, although with this provision for quality control. Just some academic musings, mind you.
If one wants the judicial nomination process to be free from politics, it might have been useful to keep it out of the hands of two elective institutions, huh? The partisan nature of the institution was apparent since oh around 1795, or earlier.
Or, maybe, since the Senate has a powerful check in the nomination process, the idea that sometimes it might block nominees -- not just because they are utterly incompetent -- is not somehow a violation of executive prorogative.
"Third, they would take at least one controversial issue now under the thumb of the judiciary and throw it back into the political arena. Republicans could pick abortion, Democrats might pick campaign finance reform. It would be understood that there would be no further judicial interference on these issues."
Sure. And, when some law is blatantly unfair as in constitutionally unfair, it's fine, as long as it is related to these topics. Why exactly?
"Fourth, they would reaffirm the value of judicial independence and raise public awareness on the importance of supporting the judiciary's more routine activities such as enforcing federal law."
I sorta thought, not to be snarky, that the Constitution was 'federal law' and a fairly 'routine' job of the federal courts was to interpret it.
Glenn Greenwald was correct on McCain's speech -- more proof he is not a 'maverick' but a Bushite. Some like that in the man. Fine enough, if we realize the truth of the matter.
If one wants the judicial nomination process to be free from politics, it might have been useful to keep it out of the hands of two elective institutions, huh?
Yeah, it's worth noting that the first truly monumental Supreme Court case in this country's history, the one that established judicial supremacy with respect to the interpretation of the Constitution, way back in 1803, involved-- wait for it-- a dispute between the two major political parties of the time over the appointment of judges by the President.
But the Obama campaign's response was horrifying. To wit:
The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman’s right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people. Barack Obama has always believed that our courts should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.
The proposal to trade issues to remove from the judicial sphere is absurd. What would it mean to pick Roe? That all previous court rulings on the subject would suddenly cease to apply? Or merely that you couldn't revisit them in an effort to get them reversed?
Similarly, what would it mean to pick Bush v Gore? A case which the Court explicitly denied had any precidential value, BTW. Would the history books be changed to record Gore as the winner? To be technical, there appears to be no remedy.
And how would the agreement be enforced? The judiciary is an independent branch, remember? Insulated from threats like arbitrary removal or pay cuts. Why would they agree to it, how could they be forced if they balked?
And the public would still contain private citizens to bring lawsuits. How would this be stopped?