SCROTUS blog - A few weeks ago, the Legal Affairs Debate Club asked two liberal thinkers to come up with a slate of potential Supreme Court candidates who were "approved by conservatives, lauded by moderates, and acceptable to liberals." This week, they revisit the question with two more conservative thinkers, asking, "Who could win every senator's vote?"
"A good place to start is with two judges President Bush nominated to the Circuit Courts in his first term: Ed Prado (5th Circuit) and Barrington Parker Jr (2nd Circuit). Both are respected moderates.
There's also Judge David Ebel, a Reagan appointee to the Tenth Circuit and a former law clerk to Supreme Court Justice Bryon White whose jurisprudence resembles that of his mentor.
How about Judge Ann Williams of the Seventh Circuit? Nominated to the District Court by the first President Bush and elevated by President Clinton, Judge Williams is a moderate who would be the first African-American woman on the Supreme Court.
Or perhaps terror-busting Chief Judge Michael Mukasey of the Southern District of New York? "
legalaffairs.org
"Who could win every senator's vote?
Wendy E. Long is legal counsel to the Judicial Confirmation Network. Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law.
Long: 6/20/05, 10:31 AM
I must say at the outset, it's tough to address Professor Presser—a distinguished teacher at the best law school in the country—as "Stephen," but that's the blunt world of blogdom.
So, Stephen, let's cut to an equally blunt statement of political reality: There isn't a potential Supreme Court nominee on the planet (at least, one this President would nominate) who could get 100 votes in the Senate.
Why? Because liberals have politicized the process and made it impossible for most Democratic Senators to support a nominee who shares the President's stated judicial philosophy: to apply the Constitution and federal laws as written rather than "legislating from the bench." The President's view, which will be shared by anyone he would nominate, is that courts are supposed to be neutral umpires of the law. We have lifetime appointments to the Supreme Court precisely to allow that function. The court is not supposed to function like President and the Congress, which properly implement policy choices because they are accountable to the people through elections. Federal judges are properly unaccountable to the people, but the flip side of that coin is that they should not be allowed to make laws—only to decide cases.
Likewise, the President's supporters expect President Bush to keep his promise to nominate a Supreme Court Justice who embraces this judicial philosophy. If his Court of Appeals nominees—Judge Brown, Judge Owen, and Judge Pryor—are any indication, President Bush will keep that promise. If he gets a chance to nominate one or more Supreme Court Justices, it will be his most important and enduring legacy. This choice is not the time to capitulate with some nominee acceptable to the Left.
Before President Reagan's nomination of Judge Bork in 1987, the generally accepted criteria for Senate confirmation were legal and judicial qualifications and integrity. "Judicial philosophy" was left to the President's discretion, as the Framers of the Constitution intended. The President, as the only elected representative of all Americans, is the one who should make that choice. It's what the Constitution empowers him, and the people elect him, to do.
But the Democrats changed the ground rules for nominations with Judge Bork. The Left's continued failure to persuade the American people of the merits of their ideology, and their corresponding losses at the ballot box, has resulted in the Left being even more dependent on a compliant judiciary than it was 18 years ago. So liberal pressure groups, and the Senate Democrats they control, will oppose any nominee who shares the President's judicial philosophy.
So, Stephen, we won't see any 100-0 Supreme Court Justices confirmed. But remember: Senate confirmation is not like a law school final exam, where one tries to get the highest score. It's more like the bar exam, where one simply has to pass.
Presser: 6/20/05, 04:36 PM
I'll pass your comments about the quality of your alma mater on to my Dean; he'll be very pleased. This is going to be a difficult conversation to maintain, because unlike the last time I did one of these, I agreed with almost every syllable you wrote, and, in particular, that since the Bork nomination the rules for who gets challenged and why have changed.
What's happened is that the "legal realists," working in the shadow of Oliver Wendell Holmes, Jr. have finally become the most influential judicial philosophers, and, as a result all academics, most lawyers, and certainly the leading Democratic Senators now all believe that law is just politics operating at a different level, judges have the freedom to implement the policies they please, and thus it's crucial to pick judges who will implement the rulings one prefers—for the Democrats at this point rulings that favor affirmative action, abortion, and the removal of religion from the public square. The Republicans find themselves in the interesting position of being able to promote the policies they favor—for example a color-blind constitution, allowing the states to regulate abortion, and undergirding law with religion—by pushing for the appointment of judges who will more narrowly construe the constitution according to its original understanding (the traditional perspective argued in the Federalist and other works of the framers). Thus, for the Republicans, they can successfully argue that the favor judges who don't make law, and still implement the policies they believe are appropriate.
Indeed, our odd situation right now is that the question of the judiciary is so politicized that both sides can score points with their base (and encourage financial contributions from that base—which is, after all, the lifeblood of politics at this point) by stoutly
maintaining a no-compromise attitude on the judiciary.
Because both sides have a lot invested in the current disagreement, I agree that finding a nominee who can get through on a 100 to nothing vote is probably impossible. None of the nominees I like best could ever manage that. There is one possible nomination President Bush could make who might well pull off 100 to nothing or something close to it, and that is Michael McConnell, former University of Chicago and University of Utah law professor now sitting on the 10th Circuit. McConnell had strong bipartisan support for his court of appeals nomination including a petition from law professors of all stripes (ranging from me on the right to Cass Sunstein on the left, and everyone in between).
McConnell might be acceptable to conservatives because he does believe that the Supreme Court has gone too far in reading the total separation of church and state into the Constitution, and because he personally is opposed to abortion, and understands that Roe v. Wade has no firm constitutional foundation. He might be acceptable to the left not only because so many liberal professors support him, but also because he has been public in his criticism of Bush v. Gore and the impeachment of President Clinton. I have heard some savvy commentators suggest that McConnell is high on the White House's short list, and, if the President wants to maximize the votes for his nominee (which I hope would not be his primary concern), McConnell might be the right man for job.
This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday
Long: 6/21/05, 09:31 AM
You're right about the unfortunate legacy of Justice Holmes (the "thrice-wounded veteran" of the Civil War, as Justice Thomas used to remind me, for whose military service rather than whose jurisprudence we should be thankful) and the school of legal realism he spawned.
But I don't think that most Republicans—certainly not this President and those on his short list for the Supreme Court—advocate a faithful application of the Constitution and respect for the limited role of the judiciary simply because it coincides with the policy outcomes they would prefer. They actually believe in our Declaration of Independence and Constitution, and that the American government was constituted to secure, by the "consent of the governed," the rights that "nature and nature's God" give to all men equally, by virtue of their humanity.
Rather, it is Pat Leahy, John Kerry, Chuck Schumer, and People for the American Way who believe, with Justice Holmes, that there is "no meaning in the rights of man except what the crowd will fight for."
Likewise, the vast majority of Republicans—in contrast to the Democrats—have abided by the traditional, constitutional role of the Senate in confirming Supreme Court nominees, looking at qualifications and integrity only. Why else would Ruth Bader Ginsburg, the former general counsel of the ACLU, have been overwhelmingly approved by Republican Senators, who knew full well that they disagreed with her judicial philosophy and that she was replacing Justice Byron White, one of the dissenters in Roe v. Wade?
As to your suggestion of Judge McConnell, he's certainly a fine judge and a bright legal intellect who is by most accounts on the President's short list. But I don't think he's alone in having received praise from liberals who will feel no compunction about ignoring, and indeed contradicting, their prior remarks if he's nominated to the Supreme Court. Others on the short list have also received praise from liberals. For example, Larry Tribe recently praised another short-lister, Judge J. Michael Luttig of the Fourth Circuit, saying "his intellectual acumen and literary gifts are of a very high order," and "I like and admire him a great deal personally."
None of this will matter the minute the nomination is announced. Judges McConnell, Luttig, and other fine judges of previously acknowledged intellect, experience, and integrity, will become "extremists," just like Judge Bork did, according to liberals who had previously praised and endorsed him. It will happen again, unfortunately.
Presser: 6/21/05, 02:34 PM
You've gone right for the jugular, Wendy, and you've made clear why it is that our exercise to find someone who might get through the Senate with near unanimity might well be a futile effort. Let's review exactly what we mean by "Borking." For me, the telling episode was related by Robert Bork in his "Tempting of America" book when he reported a conversation with Senator Kennedy, who had recently delivered his infamous Senate floor speech in which he stated that to put Bork on the Court would be to bring back the days of segregated lunch counters and other horrific practices of the past. Kennedy painted Bork as an evil reactionary, much in the manner Senator Kennedy has called President Bush's nominees "Neanderthals," "far right wing," "out of the mainstream," and so on. Kennedy privately told Bork not to pay any attention to what he (Kennedy) said about Bork, because it was "just politics."
What really enrages you and me, I think, is the tendency on the part of the Senators you mention to heap undeserved obloquy on good men and women such as Miquel Estrada, Janice Rogers Brown, Patricia Owen, Terry Boyle, and others. They are not out of the mainstream, Neanderthals, or reactionaries, they simply believe that it is possible to find objective answers to legal questions, and that it is not the job of the judge to be a super-legislator. It's disgraceful and tragic that Senators cannot agree to put law above politics, but you're probably right that we must understand that is our situation.
Or, to put the best face on this that we can, there will not be 100% agreement on any nominee not only because there are some Senators committed to duplicity and scoring political points, but also because there exists some genuine and sincere disagreement over what Justices ought to be doing. For some of the Senators, possibly, a Justice ought to do what Sandra Day O'Connor does, that is, function as if she were still the state legislator she once was, and weigh and balance competing considerations, and decide which policy preference she favors, while all the time suggesting she is just neutrally applying the law. They are perfectly happy to defer policy-making to the courts, sure that the media, the academy, the ABA, and much of the rest of the bar will place pressure on the Justices to maintain the policies they favor.
For you and me (and, I hope, virtually all of the Republican Senators), Holmes and the legal realists notwithstanding, Sandra Day O'Connor is not a fit model as a Justice, rather your mentor (I'm assuming) Clarence Thomas is. The job of a Justice is to try to figure out what the Constitution and its Amendments meant to their framers, taking account of the history of the times and the great principles of Republican government that the framers believed they were implementing.
The law and the Constitution must change, of course, but in order for us to continue to receive the benefits of the rule of law and popular sovereignty which the framers desired, those changes ought to come from legislatures and from Constitutional Amendments by the people's representatives, not their judges. Many, if not most, Senate Democrats (and some Republicans) probably regard that view as hopelessly naïve in this day and age, but it's as correct as it was when Hamilton expressed it in Federalist 78, and it's still worth fighting for. To come up with a "compromise" nominee who could get 100 votes would not be worth doing if it forced us to sacrifice these important principles, and, to come back to the point you made in your first posting, I'd rather see a nominee prevail by a slim majority, than give up on the rule of law and popular sovereignty."
legalaffairs.org |
