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Amen, Richard. Let me be just a bit more blunt than you were. Not only is there a problem with asking nominees how they will rule in specific areas (affirmative action, death penalty, abortion, ten commandments and the rest), but the very presumption that the Senate�s job is to make confirmation turn on expected results in particular cases is a wicked perversion of what I think the Senate is supposed to do. The Federalist tells us that the Senate is supposed to police against corruption on the part of the President in making nominations � to be alert to attempts to put unqualified friends, relatives, and assorted cronies on the bench. Hence the job of the Senate is to examine the qualifications and character of the nominees, and not try to figure out how they will rule.

We should be very clear about what Senators Leahy, Schumer, and Kennedy are up to--they have no interest in the rule of law as you and I understand it. They are, as Senator Cornyn has been pointing out lately, engaging in blatant acts of hypocrisy in order to assure their base that they will protect Roe v. Wade, affirmative action, removing religion from the public square, and other liberal goals; and that they will do their damnedest (the appropriate word) to keep off the bench anyone they suspect might render decisions not to their liking. What they are doing is not only hypocritical (several of them apparently had no problem with Ruth Ginsburg�s refusal to take substantive stands at her confirmation), but, as you point out, exceptionally pernicious.

The latest tactics � demanding pledges that Roberts believes that Roe v. Wade is the settled law of the land, and the fishing expedition for memos when Roberts served in the first Bush administration � appear to be designed to furnish excuses to vote against confirming Roberts, and would work marvelously against any nominee, especially one with service in the Executive Branch. And that is what I think is really going on here; beginning perhaps with the original �Borking,� accelerating with Senator Schumer�s extraordinary hearings a few years back on �judicial ideology,� and culminating in these latest efforts by Democrats on the Senate Judiciary Committee, we are witnessing, as I�ve said, the complete politicization of nominations to the bench.

Where we are approaching, I believe, is the point where anyone�s record can be distorted in the service of satisfying Senators� political constituencies, and any nomination is at risk from blatant lies and distortion. After all, none of us (maybe you excepted, Richard) is free from foibles, errors, occasional thoughtless comments, and a certain amount of irrationality in matters of religion, youthful indiscretion, romantic relationships, or occasional emotional outbursts. These are problems that come with the human condition. We�ve all, in short, made mistakes, and if these peccadilloes can be blown out of all proportion, and used to defeat a candidate with such obvious sterling credentials as Roberts has, sooner or later sensible people will decline nominations. I still think Roberts will be confirmed, but the last few days are not encouraging to those of us who still want to preserve the difference between law and politics.

Justice and Compassion

July 29, 2005 10:27 AM

Now that Steve has taken care of the more shameless opponents of the Roberts nomination, I should like to turn to a somewhat more principled topic which was raised in Geoffrey Stone�s piece on the Roberts nomination from the Chicago Tribune.

One of Stone�s arguments in favor of Roberts was that he was educable, by which was meant that he would in time understand the importance of justice and compassion and drift toward the left in the same fashion as, say, Sandra Day O�Connor. There is little question that the leftward drift has been the dominant feature of Supreme Court jurisprudence in the last 50 years. But it is both dangerous and misleading in my view to think that this pattern has some independent justification in legal or political theory.

Start with the question of compassion. The first question is, why is that relevant at all to the question of adjudication? Stone�s area of unquestioned eminence is in the First Amendment, especially as it relates to free speech in time of war. There are many arguments that one can make that the overreaction to free speech was not justified by national security concerns�arguments that any person who believes in liberty can easily accept. But the reason for this judgment is some cost/benefit calculus. It surely cannot be compassion for the speakers, some of whom are laudable, but many of whom are not. Indeed the critical move in this enterprise is to take the long view of the subject matter so that our love or dislike of individual parties does not blind us to the important issues of principle at hand. There are issues of justice at stake, but they point to the need for dispassionate analysis.

I think that the same could be said of other areas of constitutional protection, whether they relate to religion or property, for example. I would not defend the position of Ms. Kelo and her friends on the ground that they were proper objects of compassion, but on the distinct ground that no person, rich or poor, should be made a pawn in the great struggles over land use. But if it were compassion that were at stake, then surely here we have one example where the conservative defenders of property rights get the nod, not the liberal planners. Remember it was Rehnquist, O�Connor, Scalia, and Thomas that saw through this unfortunate event. The left wing of the court was so enamored in its deference to central planning that it ignored the plight of the individuals whom they were willing to see evicted from their homes, with compensation that--under earlier Supreme Court cases--falls woefully short of being just.

So I think that the Stone position is twice in error. It introduces a variable that does not belong in judging (however vital it is in other human endeavors), and then falsely assumes that it lines up in some neat way with the left/right split, such as it is, on the Supreme Court.

Compassion, continued

July 29, 2005 12:28 PM

I think I'd like to pick up Richard's "compassion" theme, and broaden our discussion with reference to others than Judge Roberts, to take a broader look at what his ascension to the High Court might mean. Richard has explored whether, as our mutual friend Geoff Stone seems to imply, the left has some sort of a corner on compassion; he has concluded that it does not, and has touched on his favorite topic of property rights. Implicit in Richard�s approach, I believe, is the idea that we demonstrate compassion by protecting property rights, and that is surely what the framers believed. I share the good paleoconservative sentiment, but I thought I might touch, for the moment, on a different topic, now beginning to surface in the discussion of the "document dump" regarding Roberts�s various memoranda in the Reagan Library and elsewhere.

As a young government lawyer, probably at the bidding of superiors, Roberts appears to have drafted memoranda opposing busing to achieve racial balance, and perhaps attacking race-based remedies generally. Because much of the base of the Democrats now consists of racial and ethnic minorities, particularly African Americans, and because African Americans have generally been thought to be the beneficiaries of affirmative action, it is quite possible that Democrats in the Senate, playing for the approval of their base (as has become the custom in judicial confirmation hearings), may use these early memoranda of Roberts's to try to deny him confirmation. Their strategy may be to paint Roberts as hostile to minorities now because he advocated policies favored by minorities then and now. Setting aside the question of whether these memos really reflected Roberts's views, since he may simply have been asked to prepare arguments that he was not necessarily supposed to have embraced himself (this being the job of a lawyer, after all), it would be wonderful (if unlikely) if, for a change, we actually debated whether affirmative action actually helps or hurts those for whose benefit it was designed.

Curiously, the Constitutionality of affirmative action turns out to be a red herring and probably a closer question than most imagine, because the record is ambiguous. Some of our brightest Justices (the first John Marshall Harlan comes to mind) claimed that we have a "color-blind Constitution," but racially-conscious remedies were being meted out by Congress closely contemporary with the Fourteenth Amendment, and this suggests (as Stephen Siegel has pointed out, 92 Nw. U.L. Rev. 477 (1998) (PDF)) that we "original understanding" types might have to conclude that there is no Constitutional bar to affirmative action. Nevertheless, the current Federal legislative strategy is to implement a color-blind Constitution (as has been done, for example, with prohibitions on federal funding for schools that discriminate on the basis of race--a statutory point blithely ignored by Justice O�Connor in her decision upholding racially-conscious remedies at the University of Michigan law school), and that strategy may actually hold more promise for improving the lot of racial minorities than affirmative action did. One hopes that a Justice Roberts may understand that, and that he might, enlightened by writing such as that done recently by Abigail and Stephen Thernstrom (perhaps our most astute and subtle critics of current race-based remedies), offer more compassion and hope than Justice O'Connor did.

Affirmative Action in Perspective

August 3, 2005 12:11 PM

Steve Presser is, I think, right to move away from the current low-level disputes over the Roberts nomination. When the most recent New York Times story dwells on Roberts� limited athletic skills (but excellent sense of humor) on the basketball court, we know that the political debate is largely over, and for good reason. There is no one out there who knows John Roberts who does not seem to like him. In the end, that simple fact will carry the day, or so I am na�ve enough to believe.

There will of course be many important ongoing issues that have to be faced, not only in the coming Supreme Court term, but for years thereafter. Affirmative action is one, and Steve alluded to the powerful writings of Abigail and Steve Thernstrom that go a long way to dispel some of the claims for the positive effects that affirmative action has on the institutions and people who practice it.

On this occasion, however, I do not want to deny their claims, but to admit their claims and challenge their significance. Let�s assume the claims for success from affirmative action are overblown--what next? To those of us who have a strong libertarian streak, admissions decisions by voluntary private institutions look to be just the sort of thing that they should make by themselves. They bear a faint resemblance to common carriers or modern network industries that may be saddled with universal service obligations.

At this point, the principle of freedom of association should take over, and the Thernstroms' arguments should be directed not to the folks in Washington who enforce Title VII, but to the private institutions who have to live with the consequences of their decisions, good or bad. One real downside (among many) of the civil rights acts is that they take from private institutions the power to decide whom to admit or reject. And in so doing, they make the question of whether affirmative action works a collective one. This puts much of the final responsibility on the Supreme Court, which then writes weak opinions--such as O�Connor�s in Grutter that strains credibility by applying a low-level rational basis test under the guise of the traditional strict scrutiny standards that apply in race cases.

Grutter of course deals with public institutions, but that hardly ends the question. The record, as Steve notes, on the Fourteenth Amendment is far from clear on whether race-based classifications can be used by government in dispensing with public funds. At one time, the huge social need was for a color-blind rule that ended segregation in the South. But now Brown is an obstacle to affirmative action programs in the public sphere, as state universities try to meet the demands of their constituents, and compete effectively with private institutions that are given a pass from the civil rights act. How this all plays out will require a painstaking future reexamination of decisions, like Brown, that were once thought to be unassailable. Let�s hope that John Roberts, if and when (preferably when) he is confirmed, will contribute something to the successful resolution of this ongoing American dilemma over race.

I think we�ve said what needs to be said about race and the Supreme Court for the nonce; why not go ahead and tackle another hot-button issue lurking behind the Roberts hearings? Setting aside abortion for the moment, let�s think about religion. If we can play a little fast and loose (and that�s what we get to do when we�re blogging, right?) (or when we�re blogging right, for that matter), let�s assume that one reason some of the Democrats are stirring the pot on Roberts (in addition to getting their base excited and ready to open their wallets for the cause) is to suggest that, being a committed and practicing Catholic, he is too closed-minded to be trusted to deal fairly with issues of law and religion, and, in particular, that he cannot be depended on to keep a clear separation between church and state. It is, after all, one of the signal achievements of the Court in the past fifty years to buy into Jefferson�s strict wall of separation, whether or not that was the intention of the Constitution�s framers.

Justice O�Connor in particular was committed to her �entanglement test,� in which she rejected any measure-�such as graduation prayers, ten commandments displays, or freestanding Christmas Creches--which might represent, for her, an unacceptable state endorsement of religion. Some anti-Roberts hysteria could be worked up if he were to be painted as someone who would bring back prayer at football games, or mandatory reading at public schools from the New Testament, hysteria I wouldn�t be surprised to see some of soon.

Still, it must be said that the Court�s current jurisprudence in this area is an embarrassment, since normal people cannot understand why the Ten Commandments are permissible on a monolith outside the Texas legislature, but not on a wall inside a Kentucky Courtroom; why �In God we Trust� can stay on our coins, but a cross on the town seal of Zion must go (see bottom of page 7 here); why it�s OK to use public funds to buy maps for religious schools but not to use taxes to pay for students' transportation to them (or is it the other way around? I forget). My own paleoconservative view is that it makes sense to follow the original understanding, expressed by Justice Story, Justice Chase, and others, and say that the states (and perhaps even the federal government) oughtn�t to be barred from encouraging religion in general, and perhaps even Christianity in particular, so long as no particular sect is favored. No state is under any obligation to do so, of course, but our tradition (until about fifty years ago) was to embrace the framers� notions that one can�t have order without law, one can�t have law without morality, and one can�t have morality without religion.

The First Amendment�s religion clauses were not designed to stop state aid to religion; rather, it was the reverse, that is, to stop the federal government from interfering with whatever the states wanted to do. I think there was great wisdom in that, and while there might be plenty of room in the polity for states seeking to promote a secular public square, there ought to be plenty of room for other states to do the reverse. If there really is a problem with a decline in public morals and the coarsening of the culture, perhaps it�s time to return to a recognition of the important part religion might play in reversing the trend, and that state help in that regard might not be a bad thing. I think this topic may be too radioactive to be discussed in the course of the Roberts hearings, but I do hope this is a concern a Justice Roberts would address, and it would be interesting to hear where Richard�s libertarianism leads him on this matter.

The Religion Muddle

August 4, 2005 10:04 AM

On this case I have to protest the way in which Steve has framed the overall issue of religion under the First Amendment. He has packed so many trenchant observations into a few paragraphs that it is impossible to answer them all within the space allotted for these instant blogs. So I shall have to content myself with a few observations as to how I have come to think about the issue.

Let�s start with a point that Steve rightly mentioned at the end of his blog. The doctrine of incorporation, which is dubious in lots of ways in connection with other clauses of the Constitution, makes little sense with religion. As Steve notes, the clause here is directed toward Congress: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first part of this clause at least, though perhaps not the second, does not lend itself to incorporation at all. It reads as though the Congress has to keep out of this issue because it is for the states, many of which had established churches, to decide whether to erect a wall of separation between church and state, or to build a party wall that allows them to cooperate with each other. If the prohibition on Congress was intended to give the states more running room, then it is odd for incorporation to completely strip the states of that power.

But by the same token, it seems odd to think that the states should have the power to prohibit the free exercise of religion, or that the Constitution was intended to give them more running room on that. The simplest view perhaps was that state protection of liberties, which are consistent with the establishment of religion, was intended to prevent those forms of abuse. Needless to say, as a libertarian of sorts (my new official designation) I am unhappy with the extensive power that states have to deal in religion, and think that prohibitions on the free exercise of religion (save for those which represent an abuse of freedom, i.e. the use of force and fraud) are again inappropriate. I am also unhappy with transfer from religious to nonreligious persons or the reverse. In the end, it is hard to think that nonbelievers should be taxed for all believers, as Steve suggests might have worked in 1789. With incorporation, the old views have to change. So it looks as though I am a separationist of sorts.

But, now that the establishment clause does apply, I believe that in the end, the separationist position is subject to some serious problems that bring us back to the same structural questions that we discussed in connection with affirmative action. I have no question that the state has to hold back when it wishes to interfere with the private practice of religion as a regulator. But in those cases where it runs particular institutions, it should have some discretion as to how those operations take place. So if public schools are a given, then I would want the schools to have discretion in deciding who should be their speakers. In private schools, the common practice is one of rotation, in a spirit of amity, and I am duly troubled when a single student (or his or her parents) can put the kibosh on a system of rotation that all different groups are willing to accept. It strikes me as the rule of one over the rule of the majority. So, as with affirmative action, I would accept in public institutions those practices that are adopted by private ones. The entanglement test, to the extent that it points the other way, is a large mistake.

But there is then the question of public displays of religious objects. Here I am more sympathetic than most to the Breyer view that long usage on outside places is all right but new insertions into court houses is not. The former is consistent with the system of rotation used for speakers. The latter suggests a bold insinuation of dominance for a particular group. State monopolies don�t square with my general views.

Lastly on funding, the key point to remember is that religious individuals are taxed for secular schools that they may not use, and to whose teachings they are opposed. So here the refusal to allow them to participate in even terms with secular schools works a transfer of wealth from religious to nonreligious purposes, which counts as a burden that starts to look like a restriction on the free exercise of religion. So once again, I am nervous about a rule that allows for transfers in one direction. Frankly, I don�t care much for how the particular dollars are spent, since they are largely fungible. My goal is to make sure that religious schools share equally with nonreligious schools in ventures over which they were taxed. The problem here is that there is so much implicit redistribution through taxation that it is hard to isolate those for special scrutiny under the religion clauses. Just another issue that gives this area its charm, for all persons, regardless of their religious backgrounds.

Richard�s last moves us in several interesting directions. He�s given us his policy preferences for the area of religion, and, as usual, he is common sense personified, a master at stating simple rules for a complex world, as the title of one of his inspired books had it. He also made clear that labeling him a libertarian is imprecise, since he�s as concerned with preserving a system in which alternative policies can be explored as he is with preserving the rights of individuals, at least if I read him correctly. The essence of Richard�s jurisprudence, as revealed, I think, in his last posting, might be more pragmatic than it is libertarian, and, I�m starting to realize, he may be much closer to his pragmatic colleague Richard Posner than I had thought (not that there�s anything wrong with that).

But ought pragmatism to be the core value of Constitutional jurisprudence? There is no doubt that Sandra Day O�Connor must have thought so, and thus the question has relevance for John Roberts� confirmation. O�Connor appeared to care little for law, or at least clear legal rules, and her balancing tests, her �entanglement� test, her �undue burden� test were, as Justice Scalia frequently reminded us, thinly disguised vehicles for the exercise of complete judicial discretion, or, if you like, licenses to ignore history, tradition, and previous precedent in order to implement preferred policies.

Is it na�ve to hope that Roberts could do better? We currently deify Holmes as the patron saint of judicial pragmatism, and legal realism (which is but another name for judicial pragmatism) is the dominant jurisprudence in the academy. The assumption seems to be that Constitutional and legal interpretation will inevitably change as society evolves and as new economic, political, social, or intellectual issues arise. This is the basis of the �living constitution� school of jurisprudence, openly exemplified by Justices Brennan and Warren, if not Justices Stevens, Breyer, Ginsburg, and Kennedy, as well as Justice O�Connor, who tend to practice it sub silentio, only occasionally making clear what they are up to, as Justice Kennedy did in the Lawrence case and the case involving the death penalty for minors.

But what if an evolutionary Constitution is not a good idea; what if there are timeless truths embedded in the original document; what if the original conception of federalism, of the states as primary regulators, and the original conception of separation of powers (whereby, as Montesquieu urged, judges were forbidden to legislate) still make as much sense as they did in 1789? Would it be appropriate for a Justice Roberts, who, mirabile dictu, actually seems to believe in the idea of the rule of law and that ours is presumably a government of laws not men, to forswear pragmatism and seek to return us closer to the original understanding? Might this even mean that the incorporation doctrine itself (trenching as it does on federalism) ought to be reexamined? Richard seems to have suggested the contrary, but Richard is also (he can indicate whether it is correctly or incorrectly) identified as a proponent of the �Constitution in Exile� school, a group that presumably believes (correctly, I think) that Constitutional jurisprudence went horribly wrong in recent decades, and is in need of serious revision, to, as it were, recapture the Constitution. That, of course, is an undertaking that I can embrace with enthusiasm. I wonder if Richard and Judge Roberts can as well.

Against Pragmatism

August 5, 2005 8:13 AM

Right off the bat I want to thank Steve for his generous words of praise for my 1995 book, Simple Rules for a Complex World. But at the same time I should go to great pains to distance myself from at least some versions of pragmatism that have come into such philosophical vogue.

Here we have to start with some simple differentiations. Pragmatism is a fiercely two-faced term, which has both positive and negative connotations. In one sense we can say of an individual that she is pragmatic if she takes the world as given and not as she would like it to be. Facing facts is hardly something to be frowned upon in making a choice whether to take a job or buy a house. Yet that same person is pragmatic in the bad sense if she thinks as follows. X is my preferred alternative if I have to stay within the rules. But in this case I don�t think that I shall be caught, so the pragmatic choice (taking into account the risk of detection and capture) is to break the law in order to achieve some larger gain. At that point, morals are reduced to multiplication to see whether crime pays. The last thing that any social system wants to do is encourage that form of pragmatism. Indeed the whole effort to get people to �internalize� social norms is designed to kill that attitude.

Legal systems have different but complementary functions. They are not concerned, except when excessively paternalist, in reviewing the soundness of individual choices made by people who play within the rules. That is for them to decide. But it is concerned with the soundness of the rules that guides the choices, and with setting up rules that make it harder to game the system. The legal pragmatist often picks out clever rules with lots of moving parts that make this superintendence harder to do. In dealing with the tort law, for example, the pragmatist may gravitate to rules that look at the costs and benefits of the actions taken before the injury to determine whether it was �cost-justified.� But these numbers are manipulable after the fact, and the far more sensible rule-based approach is to ask whether the defendant crossed the white line in the middle of the road, not whether he made every effort to stay on his side. Just imagine what baseball would look like if fair balls were called foul because the wind blew them back into play, or vice versa. Outputs, not inputs are the usual way to separate individuals. A tort system should pay heavy attention to boundary conditions in dealing with these stranger cases. It is therefore parasitic on a strong system of property rights.

All this has constitutional heft in the property rights areas that I care so much about. A pragmatic approach to eminent domain is exemplified by the misguided decision (a Justice Brennan special!) in the 1978 Penn Central case. Brennan's opinion despaired of finding rules, and then resorted to �ad hoc� (his words!) factors that celebrated the level of discretion in public figures. The upshot was that this highly discretionary program of landmark designation now goes forward notwithstanding the heavy disproportionate impact it imposes on those who are stripped of their ordinary development rights. A compensation program would force the state to decide whether the taking was worth the candle. The current law thus encourages aggressive designation, often spurred by competitors who do not want to face new entrants into their neighborhoods, and it retards the use of voluntary devices, such as conservation easements, that are better suited for the task. Peggy Radin defended cases like Penn Central for their pragmatic virtues, and attacked as a �conceptual severance� the sensible view that property gains its value because it can be subdivided by contract into leases, easements and the like. Penn Central and constitutional pragmaticism should be roundly condemned for the irresponsibility that they introduce into public life. This sort of ad hoc pragmatism has no place in any culture that respects the rule of law that Steve has so consistently and ably defended.

On Morality and Abortion

August 8, 2005 9:45 AM

OK, now I can�t really classify Richard as a �pragmatist� any more, at least not like his colleague Richard Posner, who, if I understand him correctly, despairs of any real unchanging content to Constitutional rules (I took that to be the thrust of Posner�s wonderfully-titled book on the Clinton impeachment, An Affair of State). Richard has also marvelously blasted, sub silentio, Sandra Day O�Connor, who fits Richard�s description of a bad pragmatist to a �T.� Richard ended his last post as simply a defender of the rule of law in general and the rights of property in particular. Let�s move in a different, and more controversial direction. So far we�ve touched on property rights, religion, and race, so let�s have a shot at what�s really roiling our judicial politics: abortion.

What early excited the Democrat Senators and their base was whether a Justice Roberts would be inclined to overrule Roe v. Wade, although this issue was something of a red herring, since there are still five Justices (Stevens, Kennedy, Souter, Breyer and Ginsburg) who would still vote to uphold it. But a Justice Roberts might be inclined to support partial birth abortion prohibitions to a greater extent than did Justice O�Connor, and a Justice Roberts might also expand the permissible area of state regulation of abortion in the areas of parental notice, waiting periods, state discouragement of abortion, or clinic regulation and policing, and he might broaden state discretion in this area by joining with four other justices to make clear that abortion statutes cannot be set aside easily through facial challenges. Thus, a Justice Roberts, if he really believed that the Constitution was not intended to create a right to abortion on demand, could erode, if not obliterate Roe, Casey, Stenberg, and similar decisions.

What I found very interesting about Richard�s last post was his clear implication that the rule of law contains a moral component, and that immoral pragmatists (like O�Connor?) who bend the rules deserve condemnation. I think Richard also in our exchange (and elsewhere, I�m sure) has helped to make the case that the defense of property rights is a moral undertaking, since expropriation by individuals or by the state is something our legal rules have condemned as immoral as long as civilization has existed. So what does a champion of property rights make of abortion, and the manner in which it animates opposition to Roberts? I have some sympathy for the notion that property is the central organizing concept in our Constitutional system, although I think there is a moral foundation for the rule of law anterior even to the concept of property rights. Abortion, I think, cuts at the core of this anterior moral foundation, hence the strong position of the Catholic church, for example, against a �right� to terminate pregnancies (much like its opposition to the death penalty or to assisted suicide). Richard took a position on religion that seemed to be based on letting a thousand flowers bloom, but I think it�s harder to do that with abortion. I have some thoughts on the issue, but I�d like to serve the ball into Richard�s court first, see what kind of spin he puts on his return, and see how that helps us think about Roberts in particular, and jurisprudence and judicial selection in general.

Now that I have read yet another provocative blog from Steve, I do not know whether to regard him as friend or nemesis. But no matter which way that question is answered, there is no question that he takes no hidden delight in drawing me out on a variety of issues that are likely to generate heat (but not necessarily light) in the upcoming Roberts hearings. What are my views on abortion, as a Constitutional matter?

There is no simple answer to this general question, so I shall start with the original understanding that surrounded the adoption of the Fourteenth Amendment, on which (for all it appears) the right to abortion in Roe might rest. As a historical matter, Roe unmistakably cuts against the grain of the nineteenth century understandings, in which all of the various grants of rights under the Constitution were subject to a police power exception that embraced, the health, safety, morals and general welfare of the population at large. Now this list should not be read as coextensive with the individual rights that specific Constitutional provisions protect; statutes that protect one industry or firm from competition with another would still be out of bounds, as in Lochner v. New York. But all matters that pertained to sex, marriage, and procreation fell squarely within the morals head of the police power, under which claims of personal liberty came out second best.

The next question is what arguments might be used to undermine this conclusion. Here the anti-historical argument asks the simple question, why is the morals head of the police power read into the Constitution, since it is not there explicitly. It can�t be just to deal with matters of disease and contagion that could follow from certain unregulated sexual practices, for example, as these are already covered under health and safety. Indeed, the disturbing feature about this head of the police power is that it appears to give undue weight to the offense that others take of certain practices, which is not consistent with a small government reading of the Constitution. A moderate libertarian could easily think that this original understanding should come out second-best in conflict with the underlying logic of the Constitution. Morals have to go, or at least be trimmed back.

It is, however, far from clear that this structuralist approach saves Roe. Over 30 years ago I wrote an article in the Supreme Court Review, critical of Roe, which its late editor Phil Kurland titled �Substantive Due Process By Any Other Name: The Abortion Cases� (1973 Sup. Ct. Rev. 159). But this title misled, for the article itself made the claim that the substantive argument against Roe accepted substantive due process as a general matter, only to deny its application in this case. That last judgment was based on the narrowest reading of the police power that embodied the Millian principle against harm to others, which would include the death of the unborn child if it was a person, and might include it even if it was something less than that but still more than a clump of cells. Remember, if the police power could protect dogs from abuse, then why not let the state protect the embryo from the moment of conception? It is therefore the troublesome status of conception that makes this case so difficult to deal with. But if there is no clear view on that issue, then the state should have its way and the prohibition should stand, unless for practical reasons the state chooses (as many did before 1973) to relax it. From this it follows that matters of parental consent, and late-term abortions fall within the police power as well.

Indeed many of the more qualified defenses of abortion concede the force of this view. If one says that abortions are permissible to save the life of the mother, or to deal with rape or incest, or with severely defective infants, then the implicit argument here is that there is some justification for the harm inflicted on the embryo, which is far removed from the Roe claim that the termination of pregnancy (delicately described as the right to choose, so as to make it indistinguishable from the question to marry or become pregnant) raises no questions of state authority at all.

And that is about where I stand today. The new emphasis to save Roe from oblivion is to treat it as a sex discrimination and not a privacy or autonomy case, but that maneuver is of little good. The same police power issues arise with equal protection as they do anywhere else. So the grand ontological question stands: what, or when is a person? And note that this approach does not say that Roe was wrong because it was too soon and did too much. Quite the contrary. It is not a prudential warning that certain strong moral claims should have only delayed recognition by the Supreme Court, but a challenge to the basic claim that abortion generally should fall outside the police power. So, oddly enough, the abortion cases are far more problematic than Lochner v. New York, for that latter case does not raise police power issues of the same gravity as Roe. Judge Roberts should feel free to disagree with my views, as should Steve or anyone else.

Woolly-Headedness and Term Limits

August 11, 2005 3:27 PM

Richard is right; it was with barely-concealed glee that I prompted him to talk about abortion. I had hoped to spark some discussion on the issue, but-�perhaps to the frustration of anyone out there in cyberspace still reading this exchange-�once Richard revealed where he stood I found there was little difference between us. We both, I think, understand the abortion question as implicating issues of federalism, morality, and the beginnings of personhood; issues that, in our Constitutional scheme, lead us to the conclusion, expressed most forcefully by Justice Scalia's dissent in Planned Parenthood v. Casey, that the Supreme Court in particular and the federal courts in general should get out of the business of functioning as a National Abortion Control Board. The tragedy here is that for people who care about the rule of law this conclusion--that the Constitution has nothing to say about abortion--is an obvious one, but if Roberts dares to indicate it in his hearings, he's probably judicial toast.

So, time again to try something new. In one of our e-mails accompanying the postings of our blogs to each other Richard indicated that perhaps we could discuss proposals for term limits for federal judges, and maybe that's the next area we ought to explore, although I'm not sure of its immediate relevance to the Roberts nomination. Perhaps, though, the proponents of term limits believe that if Supreme Court justices had fixed terms (and perhaps if they were ineligible for additional terms), less would be at stake in Supreme Court nominations, they might become less of a political circus than they currently are, and we could return closer to the original conception of judges as apolitical neutral interpreters of the law (a conception Roberts, to his great credit, has stoutly maintained, and on which his nomination by the President is ostensibly based). My own feeling, though, is that term limits would not make our Justices less political, rather the reverse.

The problem term limits seeks to address is real enough. As proponents of term limits such as my colleagues Steven Calabresi and James Lindgren have observed, in the first twenty years after the ratification of the Constitution Supreme Court justices served for an average of 13 years, but more recently (due no doubt to improvements in life expectancy, and, perhaps the less onerous nature of the job) Justices are serving for twice that time, about 26 years. Rehnquist and Stevens have both been on the Court for 30 years, and the average retirement age for Justices is now 78.8 years, an age, presumably, at which one may well become a bit woolly-headed.

I suspect, however, that if we imposed term limits (say fifteen or twenty years), they would simply result in Justices who, nearing mandatory retirement and realizing that they had failed to make as significant an impact as they had hoped, would seek to go out with a big splash, and would end up paying less attention to the requirements of the Constitution and more to creating a legacy. With the additional number of Supreme Court appointments would come increased political focus on the Court, and the possibility of controversies over Justices becoming more frequent and more politicized.

I do think something needs to be done about the problem that too many members of the Court believe that they are policy-makers rather than judges, and that this drives the Senate to embroil nominations in partisan politics, as was done with Bork and Thomas, and as might still happen with Roberts. Rather than term limits as a solution, however, I'd be inclined to reduce the number of members on the Supreme Court (thereby reducing the number of battles over nomination and lessening the temptation to make appointments based on gender, religion, or ethnicity�-both of which might lead to a greater tendency to think of the court as an objective interpreter of law and not a super-legislature), or to repeal the Seventeenth Amendment (which might raise the level of discourse in the Senate as it became less overtly partisan). I realize that a smaller Supreme Court could lead to more intense politics at each instance of appointment (since more would be at stake) and I realize that returning the choice of Senators to state legislatures is not likely to win popular approval, but we bloggers can dream, can't we?

Staying Too Late

August 12, 2005 10:33 AM

Steve has decided that he will put the abortion issue on the backburner for the moment in the hopes that it will not become a litmus test in the upcoming Roberts confirmation hearings. I of course agree with that, but note that the recent advertisements of NARAL have been so explosively inaccurate on the issue of the Roberts record that they have caused dismay on the part of liberals who just wish that these ads would go away so that they do not have their reputation for fair play tarnished by a group of extremists in their midst. Let us hope that saner heads prevail, and the ad campaigns will die a merciful death. If they do not, then the confirmation proceedings in the Senate will only become more difficult to conduct.

Yet Steve apparently does not want to talk about these grubby issues, but instead has pushed the matter over to the question of term limits for the Supreme Court. Here I think that we do have a problem, which is to my mind highlighted by the difference in responses between Justice O'Connor, who had the good grace to step down, and Chief Justice Rehnquist who should have stepped down given his health condition and his age. I stress this last point because I think that there are two different ways to attack a defect that longevity has highlighted in our Constitutional structure. The provision that the all judges serve on good behavior has created a situation in which people with power are unwilling to let it go, and they serve for periods of time that are all too long for the health of the nation at large.

One way to attack that problem is with term limits. Lindgren and Calabresi have one approach on that issue, and Paul Carrington and Roger Cramton have a similar program that hopes to have an orderly turnover of justices on 18 year terms. I will support any proposal that cuts down on the overlong stays of judges of all persuasions on the court, but I care most, as does everyone else, about the Supreme Court, where huge power is concentrated in to the hands of a very few.

My own particular hobby horse is not just term limits, but age. I have said as often as I can that I think that the Age Discrimination in Employment Act is a huge social mistake. The point here is not that every employee goes dotty at 65. It is rather that the level of variance in abilities increases with age, so that turnover and reentry into the market becomes an important way to keep firms strong and individuals active. Sinecures only make for trouble.

The Act itself only passed because of an exemption that allow firms to demand the resignations of high-level employees at age 65, and that invitation is taken up for jobs far less arduous than the intellectual challenges raised by service on the Supreme Court. As a generous soul by nature, I think that sound national policy should give a little, but make it clear that after age 70 all Supreme Court justices have to retire, so that we as a nation are not ruled in part by a judicial gerontocracy. Justices who are still able to can do something else; the others can retire in grace and good fortune.

There is no doubt that Steve is correct that this proposal comes with costs. There are more confirmation hearings, alas, and some justices on their way out are too eager to take dramatic action to make that one last statement. Others I hope will have a better sense of their institutional role. But the alternative is not pain free either. Old justices have to fight against at least two real forces that bring down the level of their performance.

First, they lose touch with the hopes and aspirations of today, because they don�t have a sense of the shifts in popular sentiment. I believe that Justice Stevens, age 85, misread the backlash on Kelo because he was raised in the Progressive Age when urban renewal was thought to be a sign of hope, not of senseless destruction.

Second, there are concerns with ill health and diminished intellectual capacity. Better that people leave too early than they stay too late. The usual rhetoric on age treats this as a stereotype. I treat it as an accurate generalization to which there are some notable exceptions.

The United States should run its court system just as firms have to run their own businesses. The mandatory retirement policies in the private sector are a good barometer of what makes sense for judicial appointments as well. It will take a Constitutional amendment to do this. It may just be worth the hassle.

It�s taken me too long to reply to Richard; it wasn�t for lack of brilliance in his last posting, but rather because I got distracted by real world opportunities for vacation and consulting; but I�m back in the blogosphere for a while. I didn�t mean to shy away from what Richard called �grubby� topics. I think it is part of our job to lament the sad state of the debate over John Roberts, and I�m sure Richard was as incensed as I was that no sooner had the ABA given Roberts its unanimous �well-qualified� rating (which Sandra Day O�Connor did not quite achieve � some ABA committee folks ranked her �qualified,� some �well-qualified�) that some of the same folks (Senator Patrick Leahy was the chief offender) who had recently been praising O�Connor, and who had called the ABA�s �well-qualified� ranking the �gold standard� for confirmation candidates, were combing Roberts�s record as a young government lawyer for any ammunition to support their ludicrous charge that he was a right-wing radical.

Unlike Richard, I�m not as worried about the supposed perils of a superannuated bench (to paraphrase Hamilton in the Federalist Papers); I suspect the problem is who gets appointed rather than if they die with their boots on. I�d like to keep Rehnquist around as long as we can; I think he�s still sharp and doing the right thing. Harry Blackmun, when he decided Roe v. Wade, and appeared to classify it as a �medical� rather than a legal problem, in one of the most bizarre opinions ever rendered, wasn�t yet doddering; and Souter, O�Connor, and Kennedy, when they issued their notorious plurality opinion with the daffy mystery passage weren�t quite over the hill yet either. Indeed, Richard appears to assume that justices need to stay attuned to the times (his example of John Paul Stevens), but I�ve always thought that the essence of constitutional principles, and, I hope, constitutional law, is that it�s timeless. Hamilton thought that few lawyers would combine the requisite intelligence, altruism, and character objectively to determine constitutional questions, and where we had them we shouldn�t be willing to jettison them early. It�s true that life expectancy is longer now, and perhaps the current crop of justices, compared to earlier benches is not as razor sharp as one might like, but absent more proof that older justices tend more and more to do the wrong thing, I�m reluctant to monkey with the current constitutional structure for judicial term limits (although the flag desecration amendment still seems like a fine idea to me).

One other interesting risk of judicial term limits, pointed out to me by my son-in-law, Stephen Andrews, a history professor at the University of Indiana (whom I was visiting when I should have been replying to Richard), is that if a person is young enough � say 50, like Roberts � when appointed to the Court, if term limits were 15 or even 20 years, there would still be enough time left for former Supreme Court Justices to run for public office. Reagan was older than 65 when he was elected President, and it is not inconceivable that an appointee to the Court might regard it as a steppingstone to higher political office, so that politics might flavor his or her decisions on the bench, rather than strict adherence to the Constitution and laws. And that, after all, is the problem we�re addressing--isn�t it? How do we keep our judges from deciding on the basis of politics rather than law? I�m not sure term limits are the solution, nor am I sure that the cure wouldn�t be worse than the disease.

PFAW: "Borking" Roberts?

August 26, 2005 3:29 PM

I�ll let Richard have the last word on term limits; I think we�ve set out a few of the arguments, and no need to explore the topic further. Roberts proceedings seem to be heating up a bit, though, and I want to address Richard�s point about opposition to Roberts really springing from the fact that he�s a Reagan Republican. On Wednesday, People for the American Way (PFAW) released a �Report� on Roberts, urging Senators to vote against him, and the key operative language was:

In particular he has not demonstrated a commitment to protecting constitutional safeguards, respecting the role of the Congress, and understanding the impact of the law and the Court on the lives of individual Americans. Throughout his career, Roberts has shown a pattern of working from powerful positions to undermine Americans� rights and liberties rather than uphold them. During the past 25 years, Roberts worked to resist the important progress America has made in realizing the Constitution�s promise of equal justice under law. His confirmation to the Supreme Court would jeopardize many of the legal and constitutional protections that Americans enjoy and would undermine the nation�s hard-won progress in civil rights and equal opportunity, privacy and reproductive choice, environmental protection, and religious liberty. He would strengthen the power of the presidency, already dangerously expanded by President Bush. . . . Confirming Roberts would shift the Supreme Court significantly to the right, threatening the rights and freedoms of individual Americans, their families, and their communities.

One is tempted simply to dismiss this as nonsense on stilts, but it will be taken seriously by the media, and ostensibly taken seriously by several Senators, most likely Leahy and Kennedy. The language used is very similar to that trotted out against Robert Bork in Senator Kennedy�s notoriousRobert Bork�s America� speech. I can�t decide whether PFAW is telling us that any conservative would simply be unacceptable to them, and--worse--I can�t decide if PFAW actually believes what it is saying. As Richard points out, Roberts took a number of positions on behalf of clients (one of whom was the federal government led by a conservative Republican president), and their views should not be imputed to Roberts. Moreover, there is absolutely no evidence that a Justice Roberts would behave in particular ways on particular issues, since that Justice Roberts has not yet gotten on the Court. PFAW appears to believe not only that one can infer future behavior from past legal practice (clearly false), but also that there is only one correct perspective for Justices of the Supreme Court, and that is to read the constitution to expand its preferred �legal and constitutional protections,� many of which are simply not dictated by the document.

I hope that PFAW�s venomous and contemptible efforts will meet with the same fate as NARAL�s charge that Roberts believed in helping those who do violence at abortion clinics, but the success of these tactics in the case of Robert Bork, and their almost success in Clarence Thomas�s case, lead me to think that those on the left, such as PFAW are not yet ready to give up �Borking.� I think it�s our job to take a strong stand against this kind of mendacious conduct, and I fervently hope that wiser heads will prevail in the Senate.

What, Me Worry?

August 29, 2005 11:46 AM

Having read Steve�s broadside against the People for the American Way, I braced myself for the worst when I read over the detailed report that PFAW prepared against Roberts. After all, Steve compared it to the famous Ted Kennedy speech that began with the words, �In Robert Bork�s America,� so I expected to find some zingers in it that would remind me of the �rogue cops,� and �segregated luncheon counters� of yore. But this PFAW report is, quite frankly, something of a bore. The relentless and routine conclusion that Roberts is against all the rights and liberties that we hold dear lacks any nuance that would make it credible. Quite the opposite, it reads more like an effort to rally the dwindling faithful to a cause that looks as though it is doomed to failure.

Why? It is important to remember the issues that brought Bork down, apart from questions of demeanor and appearance. It was his spirited (indeed intemperate) language against Title II of the Civil Rights Act on public accommodation; it was the firing of Archibald Cox as special prosecutor; it was his public attack on Griswold; and, in a last place, it was his statement that the First Amendment only covered political speech in his Indiana Law Journal article.

Roberts has not performed any public acts that would bring attention to him; and his own private views, whatever they may be, do not get the same traction as public statements, which signal to the world how committed you are to a particular position. The work done as a lawyer, for a client, in an office context gets discounted down radically as it should. The scattershot approach of the PFAW memo makes it a less than compelling document. I think that it is designed to raise funds from the faithful. I don�t see it as dominating public debate.

The second point that comes through loud and clear from the PFAW�s position paper is its utter dogmatism. It tells us what the right positions are, but it does not explain why they are right. Nor does it give us any sense of what the wrong arguments are. Yet everyone knows that all government programs are capable of excess, so that some line-drawing or qualification is required to be credible. But to introduce the type of ambiguity that raises credibility is to lose the strong focus. I don�t see any real way around this. The problem that PFAW has is that it has a weak case because Roberts is not a candidate who polarizes like Bork did. I don�t think that it is necessary to trouble ourselves, or anyone else, with it further.

I think what I like best about being involved in a debate with Richard is that he may be the most analytical, dispassionate, and rational person I know. For a riot of sheer reason it is hard to top his last posting. He has elegantly pointed out all the differences between John Roberts and Robert Bork, and clearly indicated how the former doesn�t suffer from the weaknesses of the latter, and, moreover, how PFAW has failed utterly to substantiate its case that Roberts would turn back our valuable American freedoms. If all we had in the senior branch of our legislature were Senator Epsteins, we could all rest easy.

Alas, that�s not the case, and the problem with what PFAW is up to, and the strategy of the Roberts opposition is that the kind of close analysis Richard has done may not be engaged in by the media. In some quarters of the polity all one needs to do is label someone a �far right-wing conservative,� and the coded message � �This person will cut back on abortion rights, affirmative action, the secular public square, Title IX, civil rights, gay rights, and God knows what else� is believed and takes hold. The truth of the proposition is immune to challenge, since what we�re dealing with here is ideology rather than facts.

Right now, it does look as if the battle against Roberts will fail, but it won�t be for lack of trying on the part of PFAW and others of its ilk. Robert Novak�s column of August 25 reports that the 66-year old James Flug, a veteran Borker, has rejoined Senator Edward Kennedy�s staff, and that this would not have happened unless the Democrats were willing to make a full-bore effort to stop Roberts.

I do believe that there is a fair chance we will see a fully-orchestrated effort to suggest that civil rights, human rights, and the good life itself simply cannot survive if a real conservative replaces Justice O�Connor, that John Roberts will be painted as such a real conservative, that much of the media will accept the argument, and that the Roberts confirmation will not be a cakewalk. The mainstream media still loves to present the kind of conservatism espoused by Russell Kirk, Clarence Thomas, George W. Bush and John Roberts as something close to evil incarnate, it does not engage in the kind of nuanced analysis Richard does, and we defenders of the framers� judicial philosophy may be drowned out.

It wasn�t too long ago, during the Thomas hearings if memory serves me correctly, when Richard�s own thoughtful analysis was demonized in Senate hearings as an inappropriate influence on a future justice. The opportunities for that sort of chicanery will present themselves again, and I believe that we need to keep our rhetorical powder dry and our wits sharpened in the service of sensible jurisprudence. The silver lining (to use still another worn clich�) in this cloud of misinformation spun by critics of Roberts is that if Richard and people like him do speak out, there is a chance that the kind of defense of conservative jurisprudence we have explored in these bloggings might have to be taken account of by the mainstream media, and might even penetrate the consciousness of the American public.

Still Tranquil

August 30, 2005 1:53 PM

Steve continues to impress me with his detailed knowledge of the ins and outs of Washington politics. But at this point I think that the better analysis of the overall situation depends less on the small maneuvers and more on the overall level of buzz that the Roberts nomination has generated. On the former, I attach little weight to the fact that Senator Kennedy has appointed James Flug to his staff, even if the latter is a hard-line rejectionist of anyone to the right of the newly perceived O�Connor line. There are good reasons for taking a stand in order to rally the troops, even with only an off chance that the protest may pay off.

That said, the key point here is the lack of buzz and discussion that the Roberts nomination has generated. The New York Times reveals the level of desperation in the covert opposition when Adam Cohen decides to write yet again about that local toad that never goes outside California. There is no mileage in a wry opinion that tells more about the Roberts�s wit than his willingness to roll back the New Deal by constitutional means. And there is the odd piece by Jeff Rosen in the Sunday Magazine, which suggests that we quiz Roberts about his futuristic views on biotechnology. Before I abandoned Jeff�s efforts for an excellent Sunday crossword puzzle, I asked myself how you could get any traction by asking a nominee to opine on the biotechnology of frozen embryos when no one knows what form the technology will take in ten years�all in complete ignorance of the potential legal issues no less. Here is one time that a candidate can answer truthfully that �I have never thought of that issue, and would prudently wait until it presents itself in concrete form before making up my mind.�

So if this is where the rhetoric is, then the suspense will be injected into this entire affair only if Roberts jumps out of character and gratuitously takes a hard line position on some issue or other. That confrontation did of course surface in the Thomas hearing before sex drove it off the front page, and I was a mild casualty in the experience, as Steve notes. For those readers who did not see the incident, Senator Joseph Biden held a copy of my Takings book out to the then judge, Thomas, and asked quite simply why anyone who believed in that stuff should ever be appointed to the Supreme Court. The one answer that I do recall was, �but Senator Biden, there is a takings clause in the constitution,� to which I will add that it is one thing to invent rights as a matter of natural law, and quite another to use the natural law methodology to explicate a clause that is written into the constitution but has to be subject to a number of interpretive questions. Do you take property when you blow it up but don�t take title to the rubble? Can you take property to restrain a nuisance? Etc.

On that occasion I was asked discreetly by one of my former students, who was also an aide to Senator Biden, whether I would like to join the show by testifying before the committee on the takings clause. It was clearly an effort to get to Thomas through me, and I politely declined the invitation to speak. But I did offer Senator Biden an alternative: we could debate any and all issues in my Takings book, once the hearing concluded. I never heard back from him about participating in a disinterested inquiry for the truth. I would happily extend that same offer to Senators Kennedy, Leahy, or Schumer. But you won�t see me at the hearings. I have no idea what Roberts thinks about my view, nor do I for these purposes care. Roberts will have to stand on his own two feet. I am confident that he can. So rest easy, dear Stephen.

Chemerinsky�s Folly

September 1, 2005 2:59 PM

Now that Steve has his blood aboiling, what shall I be able to do to calm him down on this matter? Surely there are some approaches that I could take that would be bound to fail. I could argue that Chemerinsky is right that the sole, or even main, source of opposition to Bork was that he did not wish to protect marital privacy, took a narrow view of the first amendment, as well as the equal protection clause. But I was not comatose during the entire summer and fall of 1987 when the opposition reached a frenzy that is now captured in a verb that has unambiguous social meaning. To �Bork� someone is to engage in a full-fledged all-out, no-holds barred campaign of vilification. It involves taking hold of the hearings on the one hand, and using vicious ad campaigns on the other. Ted Kennedy�s speech, �in Robert Bork�s America,� was not confined to the erudite issues that Erwin mentioned. I don�t think that anyone should accept his crude efforts to sanitize what was, when all was said and done, one of the sorrier episodes in our history.

Perhaps I should then switch tacks, and tell Steve that the opposition in this case is principled because Roberts is likely to be to the right of O�Connor in some way that the Democrats oppose. I suspect that this will be true on some issues, but I am not quite sure how to read that. If Lopez is one of the arch sins of modern constitutional law, then O�Connor must stand convicted in the dock with Roberts, so that she could not be confirmed either. But those nasty details aside, the real point here is that Chemerinsky takes the view that Roberts should not be confirmed because he may prove to be to the right of Kennedy, even if it turns out, as also seems likely, that he will be to the left of Thomas, Scalia, and Rehnquist.

Oh? I can�t persuade Steve on this one. The clear implication of all train of thought is that the Court may move to the left, but it cannot move to the right. Now oddly enough, I do not necessarily agree with Steve on the substantive issues. I would have upheld affirmative action in Grutter and have more sympathy for the libertarian angst in Lawrence than does Steve. But I think that it would be grotesque to take my own far-out views and use them as a litmus test for deciding who makes it over the barrier or not. I think that we have to accept that the political process gives the President some sway over the direction of the Court. The Democrats have to count themselves lucky that the justices we have appointed over the past 50 or so years, on balance, have been more liberal than the presidents who appointed them. But that cannot go on forever. To shape the Court you have to win elections, and for Democrats that means moving away from Chemerinsky, not toward him.

So if Steve is right to balk at these efforts at calming his nerves, perhaps I have one last shot. What would happen if Roberts is turned down? I think that we could easily see that the President would nominate someone whose conservatism is of a deeper dye than Roberts. In a word, I think that in some sense the Machiavellian Republicans could then beat up on Democrats for a vicious partisan fight based on nothing more than a decided political preference that someone, who is to the left of three sitting justices, is too conservative to sit on the Court. I don�t believe that the Democrats will want to commit hari-kari. Erwin is a lone voice. May he long shout in the wilderness.

The Constitution: Dead or Alive?

September 3, 2005 1:02 PM

The portents still seem to point to a fairly easy confirmation for Roberts, so perhaps I�m not really justified in being as worried as I was a couple of posts back, but I thought I would address Richard�s interesting suggestion that if the Democrats succeeded in blocking Roberts, the next nominee would, in order to teach the Democrats a lesson, be an even more consistently conservative jurist (say, perhaps, someone like Edith Jones, whose name has been floated, and who would be a splendid choice). Richard has suggested that the smart move for the Democrats and their liberal allies at this point is to accept Roberts, and then proceed to draw the line (as Cass Sunstein implied in The Wall Street Journal the other day), and suggest that anyone to the right of Roberts would be so unacceptable that it would amount to the �extraordinary circumstances� that would justify a filibuster. Better to compromise their principles on Roberts, then, and be ready to fight on someone like Jones, who could push Constitutional law much further in a conservative direction.

But this assumes that Roberts cannot be successfully demonized in a manner that suggests that not only is he bad, but anyone more conservative would be worse, so that both Roberts and a successor conservative nominee could potentially be defeated, probably through filibusters. After all, after Bork was Borked, we got Anthony Kennedy, hardly to the right of Bork. The foes of Roberts no doubt believe this--a less conservative nominee--would be likely if Roberts were defeated. Now I join Richard in thoroughly disagreeing with PFAW and NARAL on what kind of a Justice ought to be serving on the Court, but if we look at the world from their ideological point of view, we can understand how they can believe that Roberts is the enemy. Such folks might actually be convinced that Roberts, replacing O�Connor, could be in a new 5 to 4 majority that would sustain restrictions on partial birth abortion, require parental notification, and abortion clinic regulation; that might restrict political conduct on the part of unions; that might give states and localities further leeway in allowing aid to sectarian schools or allowing the dominant Judeo-Christian civic religion into the public square; or that might prevent the federal legislature from expanding the reach of the federal government into local domestic affairs. In the academy, in the blue states, and in the main stream media all of these might seem like terrible risks, or at least portend turning back the clock on the right to privacy (which Richard cherishes), or affirmative action, and very possibly bringing us back to a national culture closer to the fifties or even the twenties. Let�s give Erwin Chemerinsky his due; if we take him at his word, that�s what he�s concerned about.

Richard and I don�t, but if one really believed in a �living Constitution,� and believed that the Warren, Burger, and Rehnquist courts got it right in decisions such as Brown, Roe, Casey, Lee v. Weisman, and Lawrence v. Texas (just to pick some samples), why should one welcome someone like Roberts who has criticized the logic of these decisions, and the notion that the Supreme Court has the discretion, acting in the purported interests of the people to further social change or redistribution. I know, I know, it�s been our tradition that a President is entitled to a presumption of fitness on the part of his nominees, and, until now, naked result orientation has not been accepted as a valid criticism of a nominee. But we have to remember, these are people who think they are fighting evil, and they�re the good guys. As Chemerinsky himself makes clear, he believes arguing that a conservative nominee would roll back rights worked in Bork�s case, and ought to work in Roberts�s. Roberts doesn�t look as strange as the bearded Bork did, and he doesn�t carry the baggage of firing Archibald Cox, but he worked for Ronald Reagan, and to Chemerinsky and his ilk, that�s just as bad.

Richard and I believe that if the framers had wanted the nine Supremes to function as an ongoing Constitutional Convention empowered to implement its revisions without the bother of ratification, there would be no Article V Amendment process in the Constitution. The idea of a �living Constitution,� however, is entrenched in most of the academy, and maybe even in the American popular mind. Scalia has said he prefers his Constitution �dead,� and he�s right, but it�s a hard sell. We still have some reason to be uneasy.

Psychoanalyzing Roberts�s Opposition

September 3, 2005 3:30 PM

Steve�s last post makes a sympathetic effort to see the world as Roberts�s opponents would see it. And they certainly have reasons to be unhappy about the kind of justice he would be. What they do not have is strong reasons to think that they should block the person because of those disagreements. I might also add that I am certain that I have disagreements with Roberts as well, and hope after his confirmation to find out what they are. But for the moment let me again return to my favorite theme. How do we disentangle the sensible threads of opposition from the political hype?

My text du jour is Friday�s column that our Senator Dick Durbin wrote in the Chicago Tribune in which he expressed his anxiety over issues of the commerce power and the right of privacy as it pertains to intimate associations. It is interesting that he does not talk about any current controversies but confines his attention to two of the great and enduring conflicts of the 1960s, those over the scope of the commerce clause with respect to the civil rights acts on public accommodations, and the scope of some (undefined) guarantee with respect to rights of intimate association, which for these purposes I will not include abortion.

How could anyone disagree with Durban�s view that the segregation in public accommodations in the South was a national disgrace? I can�t. But on the initial question is whether the commerce clause reaches these matters, the answer is surely yes for inns and other establishments that are part of the interstate system, but not for every local restaurant in town. His outrage and the shortfall of the clause leads him to defend, wholly without regard to text, history, and structure, the modern meaning of the clause. It is perfect reverse engineering. Know what is right (and he is right) and the constitutional issues are resolved.

What is ironic here is that he does not explore how the entire document is put together. The villain of this piece is the narrow reading of the privileges or immunities clause of the Fourteenth Amendment in the Slaughterhouse Cases, which essentially stripped that provision of all its protection to the newly made citizens, the former and now freed slaves. But if that clause were read correctly, it would cover the right to travel freely between states (not to receive welfare in new states, however), and that right would carry with it, I think, the rule that public accommodations had to offer nondiscriminatory provisions for all, whether or not in interstate commerce. We get to the right result without having to pay the high cost of agricultural cartels (of the sort propped up in Wickard) of which Congress is all too fond.

The privacy issue is amenable to the same kind of analysis. Here the wrong turn in the road was the rejection of Lochner (one of Senator Durbin�s favorite cases, I am sure) so that ordinary contracts were subject to extensive state regulation. Griswold was of course at root a contract case, and here the usual justifications of safety and health don�t come within a country mile of justifying a ban, which could never be sustained because other people were offended by contraceptive use. So we don�t need a right of privacy. The ordinary protection of liberty will do just fine here, without committing us to Roe v. Wade, where the state interest is so much stronger.

The hardest question in constitutional law often asks how we back and fill. My own preference is to confess error and reverse precedent. It is intellectual cleaner than the Durbin approach that finds a sound result that is defensible of his reading of a particular provision, but which sweeps in lots else that should be left aside. Not clear what Roberts would do. But one hopes that he would be sensitive to the problems of dealing not only with constitutional text, but with prior judicial errors in constitutional interpretation.

Politics or the Rule of Law Yet Again

September 4, 2005 3:31 PM

As this is written the Roberts hearings, scheduled to begin on Tuesday, are in some jeopardy, because of the death of Chief Justice Rehnquist, and because of the ongoing turmoil over the aftermath of Hurricane Katrina. The President finds himself under a barrage of criticism from Democrats for failing to deliver more relief to New Orleans (as if he had the power to do that), and there are reports that the Mayor of New Orleans, in an act of extraordinary chutzpah, has asked for a delay in the Roberts hearings so that the Administration can concentrate on aid to his city. We may never know whether the devastation that hit New Orleans is due simply to an act of God, to a failure by state and local officials, or to a federal relief effort which was too slow, but it looks to me, as Ben Stein has argued in the American Spectator, as if objective observers would conclude that President Bush has done nothing wrong, and that those claiming he did are engaging in the crassest and most reprehensible form of partisan politics.

Similarly, the extraordinary posturing that we are beginning to see coming from the Senate, in the wake of the Chief�s passing, is anything but the fulfillment of the advise and consent function as traditionally understood. Thus, Senator Schumer, who has come to be the leading champion of the notion that �judicial ideology� needs to be balanced on the Court, and who appears to have believed that under Rehnquist the court became unbalanced in a rightward direction, now declares that the hearings should be delayed because, as he said on ABC, � We can take a few days out to mourn Justice Rehnquist. He was a towering figure in the judiciary . . . Judge Roberts was his law clerk, and Judge Rehnquist was Judge Roberts' mentor. I think it makes a good deal of sense for us to take time, catch our breath and take a few days out.� Even more remarkably, Senator Christopher Dodd has suggested that the President should consider asking Justice O�Connor temporarily to rescind her retirement, presumably to become acting Chief Justice, in order to give the President more time to consider how permanently to replace the Chief Justice.

What appears to be going on in this attempt to delay the President and the Senate from carrying out their constitutionally-mandated functions is to give the Senate Democrats, their allies in the liberal interest groups, and the main stream media more time to make the case that the President cannot be permitted to pack the Court with the sort of conservative nominees he has promised, and that the Court must remain �balanced,� and that, in Cass Sunstein�s bizarre appellation, no �fundamentalist Conservatives� need apply.

One side in this debate, then, appears ready to use any tactic or opportunity at hand to engage in a politically-motivated effort to dictate the kind of result-oriented jurisprudence on the Court it favors, as I suggested in my last post. We can only hope that the White House will be able to perceive this effort for what it is, and mount a strong case that to delay Judge Roberts�s confirmation, to delay the selection of a new Chief Justice, or to give in to the nonsense about �judicial ideology� or �fundamentalist conservative,� would be nothing short of a betrayal of the Constitution and the rule of law itself. I hope somebody at 1600 Pennsylvania Avenue is reading Richard�s and my efforts.

Forward March!

September 4, 2005 5:52 PM

The death of William H. Rehnquist creates a second vacancy on the Supreme Court, which now threatens to throw the entire nomination process into big-league confusion. As of this writing, no official notice has been given that the hearings on John Roberts will be delayed, and none should be forthcoming. Many of us have long claimed that the tortuous nature of the nomination process will in the end demean the institutional standing of the Court. That prospect will be much closer to the short run if it turns out that the October Court will be begin without any Chief Justice, and only eight members, assuming that Justice O�Connor is prepared to stay until the ever-more Byzantine politics work their way through to some conclusion.

There is in my view only one sensible course of action in the present. The Roberts nomination should go forward with an eye to quick confirmation. He should remain a nominee for the seat that he was originally proposed. The next nomination should be for the Chief Justice, and not a word should be said about that appointment until this one is completed. It is evident that the Senate has trouble juggling one ball at a time. We cannot afford to guess what strange alliances will emerge if two names are put forward simultaneously. One only hopes that the Democrats will not engage in delay tactics, which can only throw the fall term into turmoil.

On all of this I am in agreement with Steve, and I share his amused sense that the only distinguished conservative jurists are those who have left the bench. I also share with him his deep sense of amazement and distress that the implicit program of the anti-Roberts Democrats is to treat Sandra Day O�Connor as setting the outer limits of the acceptable right flank in Supreme Court jurisprudence. The Court should be open to people of ability with all sorts of views. As a small-state libertarian, I disagree with many of the decisions that the so-called conservative right would support. I am happy to argue with the justices whose positions differ from my own. I do not think it appropriate to use any set of substantive views, even my own, to keep people off the bench. No one has a monopoly of sound thinking on these issues.

I do, however, take issue, cautiously, with Steve on one question of policy. I am not so sure that it is a foolish suggestion to ask Justice O�Connor to assume the role of an Acting Chief Justice until a permanent replacement can be found, hopefully sooner rather than later.

The argument against that proposal is that it reduces the pressure to fill the position quickly. The Democrats (or at least that fraction of them that are opposed to Roberts) can then use the O�Connor Chief Justiceship as a reason to delay the hearings on any Chief Justice nominee, and thus drag days into weeks, months, or even an entire year. But the alternative is to travel light to require some adjustment in the rules on certiorari (four out of nine are currently required), and to produce a set of annoying four-to-four ties. On balance, I think that public pressure to restore the Court to its normal nine-member contingency will force the Chief Justice question forward. There will be no two-month period of reflection before the job is done.

In the short term, however, the first move is to hold the Roberts hearings as scheduled. Nothing about this nomination has changed. The object of delay is to sow further confusion for which we have no need. The Supreme Court took two hundred years to build up its current institutional capital. We do not need it to be dissipated in a couple of weeks.

Oh, Dear. Politics Again.

September 5, 2005 4:01 PM

The President�s decision to withdraw John Roberts�s nomination as associate Justice and nominate him to the position of Chief Justice of the United States is a brilliant political move; not only does Richard get his wish about keeping a full complement of Supreme Court justices (assuming Roberts is confirmed), because O�Connor stays on until a replacement for her is seated, but the President makes Roberts�s confirmation even more certain because it is difficult for the left to make the Sunstein/Schumer argument about a need for a �balanced� Court when one conservative (Roberts) simply replaces another (Rehnquist). The real fight now will come when an O�Connor successor is named, assuming that the President keeps his pledge to appoint Justices in the mold of Scalia and Thomas.

Still, for those of us who like to worry, there are things to worry about here. First of all, whatever the brilliant politics of this, it does suggest that political considerations, not judicial ones, were foremost in the mind of the President. The Chief Justice has four primary roles, as I see it. The first is the assigning of opinions when he (let�s use the male pronoun; the President sadly blew his chance to appoint Edith Jones or Janice Rogers Brown as the first female Chief Justice) is in the majority, the second is to serve as at least the titular head administrative officer of the United States Courts, the third is to serve as a symbol of the Supreme Court, and the fourth is to preside over Presidential impeachment trials. Let�s pray that the fourth job (which has only been performed twice before, once by Rehnquist) will not need to be done in the near future. The others will, however, and to appoint a lawyer, however brilliant, with no prior service on the Court, with no experience as a court administrator, and at a relatively young age, suggests that the particular attributes a Chief ought to have were not foremost in Mr. Bush�s mind.

Scalia or Thomas would have been better choices (especially since Mr. Bush claims they are his favorites), but perhaps the two declined the job. In their shoes I�m not at all sure I�d want to suffer confirmation by this particular crew in the Senate. They probably were content to stay where they were. As a political matter, had Bush nominated either of those two, he would have been faced by three confirmation hearings, not just two, and he was able to take the easy way out. For Richard and me, though, we�re right back where we started, arguing about how we defeat the left�s argument that O�Connor must be replaced by someone who shares her ideology (or her bizarre and inconsistent Constitutional result-orientation). Assuming the Democrats in the Senate have thought this through, they should mount only token opposition to Roberts, if any at all, and then expend all their considerable resources in whipping up their base, their activist organizations, and their friends in the mainstream media to demand �balance� (meaning a pro-abortion nominee) to replace O�Connor. One wonders what the Senate is up to in postponing the Roberts hearings; since his qualifications aren�t going to change now that he�s been nominated for Chief, and all the cards are on the table. The ridiculous reasons offered by Schumer and others for postponing the hearings make no sense, and I�m sure Rehnquist would have wanted a swift confirmation of his successor. I hope that this doesn�t portend more silliness in connection with Roberts, or an effort to get more time to wrangle concessions regarding the nomination of O�Connor�s successor out of the President. Let�s hope Mr. Bush will not be tempted now once again to take the politically easy route and appease them.

Now that the Senate hearings on Roberts have concluded, Steve and I should take stock both of his nomination and of the Senate that now must vote on his confirmation. On the former, I see nothing in these recent events that has altered the basic judgment that Roberts is a serious and able man who will take his job seriously, and discharge it ably. In saying this, I do not mean to imply that he will agree with me more often than not. As an outsider to our dominant constitutional tradition, I regard that, frankly, as too much to hope for�and wholly improper to ask for from any nominee. But so long as the Senate recognizes that the nomination belongs to the President, and not to itself, then the only grounds to vote no is that Bush did not choose a liberal democrat to fill the seat of William Rehnquist. Sensible senators of both parties will vote to confirm.

The state of the Congress, as voiced through the Senate, is much more difficult to fathom. Freud�or, at least I think it was Freud, but who remembers for sure?�spoke of love/hate relationships and that is what the Senate has for itself. On the one hand, it is easy for Democrats and Republicans alike to wax elegant about how it is critical that the Supreme Court not place any limits on its power to legislate, wisely of course, under the Commerce Clause. The argument here has nothing to do with constitutional text, history, structure, purpose or precedent. It is a simple assertion of raw, unenumerated power. The justification for that power is that Congress enjoyed it in the years between Wickard v. Filburn in 1942 and United States v. Lopez in 1995, which clipped the Wickard wings ever so slightly.

Unfortunately, if Senator Arlen Specter is any guide, the case for the return to that 53-year regime rests on one giant emotional pout: members of the Senate think that you are showing us disrespect when you assume that we are not competent to solve the nation�s problems. It was as sorry a display of intellectual infantilism as one is likely to see in public life. Not so much as a single effort was made to offer a principled basis for reaching that conclusion.

So that�s the side of self-love. But what of self-hate? That is captured in the idea of the �right to privacy,� which, after the Bork nomination, has become a litmus test for constitutional respectability. But now the jurisprudence does a constitutional U-turn. Privacy is so critical to ordinary individuals that Congress could never be trusted to regulate or protect it. At this point we have to tell a different story about Congress from the one just advanced with the Commerce Clause. Now Congress is filled with boorish and insensitive individuals who could never be trusted to defend the fundamental rights of our people. The Court must step in as the guardian of all rights, at least of those which the Senate thinks so fundamental that they have to be kept off limits to Congressional action.

Yet how do we tell which these rights are if we do not read New York Times editorials? Once again we are left at sea, for there is little effort to bring text, structure, history or purpose to this analysis. We are of course told that the right was first enunciated in the famous Warren and Brandeis article about the right to privacy, which is somewhat more genteel than the modern right of privacy. But the irony is still deeper. Warren and Brandeis were not in the business of doing constitutional law. They sought to cobble together a collection of older common law precedents to make sure that the yellow journalists of his day could not cover in lurid detail the wedding of Mr. Warren�s daughter. It is one ironic footnote to this history that this version of privacy has long been swallowed by the general �newsworthiness privilege,� grounded in the First Amendment rights of the very newspapers who champion the privacy right in other contexts.

That Warren and Brandeis championed a constitutional dead end should give caution to anyone who asserts a general right of (or to) privacy, without taking into account the scope of the basic interest or the countervailing interests on the other side. But in the context of Senate hearings, lip service is what counts. The hard questions never get discussed because what is sought is not an understanding of the Constitution but to fealty in advance to one view of how the overall debate should come to an end. This great experiment in public education has taught us very little about Judge Roberts. Alas, it has taught us all too much about the intellectual blinders that govern the Senate Judiciary Committee in the course of its deliberations.

Given the overall complimentary character of our exchange, I�m not surprised that Richard�s final post gives views very similar to my own. We end in agreement on at least three points: 1.) Roberts is a good man, and deserves confirmation, 2.) The Senate has an odd understanding of constitutional law, to say the least, and 3.) much of what�s going on is about the so-called �right of privacy,� a right manufactured from, but not actually found in, the Constitution. Nothing more need be said about the first point; rarely, if ever, has a nominee demonstrated a greater fealty to the constitutional task as set forth in Federalist 78. If a vote against Roberts is justified, than we can pretty well kiss the idea of the rule of law goodbye.

So I�ll devote most of the rest of this to points two and three, the Senate and the right to privacy. I was tickled by Richard�s Freudian analysis, but I think Jung may be a better bet. What I see is a real contest between good and evil archetypes. On the one hand the President and Roberts�s supporters have embraced his notion of the judge as an unbiased �umpire,� and have been willing, as has Richard, to say that Roberts may come up with a result they wouldn�t like, but because of his fidelity to our tradition and his even-handedness, they are comfortable having him on the bench.

The other side, and here I�m thinking of groups like NARAL and PFAW and the senators in their pocket, such as Kennedy (the jury is still out on Schumer, Biden, Durbin, and Leahy at this point, depending on their Roberts vote), who are very consciously perpetrating falsehoods or at least distortions about Roberts because they are prepared to go to any lengths to condemn the conservative tradition he represents. They seem to care little or nothing for the idea of the judge as the neutral arbitrator; they want only judges who will rule to reach the substantive results they desire, for example, expansion of the �right of privacy� to remove abortion from regulation, or perhaps to permit gay marriage. They want, in other words, to continue, as Richard suggests, to remove these and other issues from the democratic process, because this would please the constituencies on which they rely. They see no difference between law and politics, and they have made judicial confirmations political campaigns instead of an objective evaluation of qualifications.

Fortunately, it looks like the bad guys have been thwarted in this particular contest, as NARAL had to withdraw one mendacious ad, and the spurious attacks on Roberts�s character have failed to gain any traction. Still, it�s clear that the Roberts hearings are a sideshow and the real contest will be the struggle over O�Connor�s successor. If the Democrats are shrewd and subtle, most will, as we have suggested in our dialogue, vote to confirm Roberts, and then suggest that anyone to Roberts�s right is too extreme to go on the Court, and ought to be filibustered because the risk of such a person going on the bench would be the �extreme circumstances� which the gang of 14 left open as justifying a filibuster. This is because the spurious �right of privacy,� as Richard has exposed it, is at some risk if O�Connor is replaced by a Justice more like Scalia or Thomas, as Bush has promised. Roe v. Wade is probably not going to be overturned because there are still five Justices (Breyer, Ginsburg, Kennedy, Souter, and Stevens) who are on record as confirming it, and even Roberts indicated it was a strong precedent. But more abortion regulation would be permitted if an Edith Jones, or a Janet Rogers Brown, or a Priscilla Owen took the O�Connor seat (just to mention three conservative possible nominees in the mold of Scalia and Thomas), and other liberal-favored policies might not be as easily implemented by such a Court.

Allowing Roberts through would also give the Democrats a chance to invoke their now preferred notions, spun out by academics such as Lawrence Tribe and Cass Sunstein of the need for �balance� on the bench; �We gave you a conservative,� this time, the left will say, �now you need to let us have a liberal.� But there are places where it is wrong to speak of �balance,� and if those who have read this exchange understand anything it is that picking judges is one of those places. There is never a need to balance �good� with �evil;� and if there is a single correct theory of Constitutional interpretation, and if it is as exemplified by John Roberts � one of fidelity to the Constitution itself, rather than an ideological preference, then to call for �balance� here would be wrong. The friends of the theory of Constitutional interpretation set forth in Federalist 78, the same theory brilliantly and subtly explained by Roberts and with great grace by Richard in his last post, can and should use this exchange as ammunition to fight the confirmation battle that will soon be upon us.

 

 

 

FEATURED DISCUSSION ARCHIVE:


Obamacare Decision: Reactions, July 2012
Law School Faculty Diversity, May-June 2012
Class Actions, May 2012
Constitutionality of Individual Mandate, March 2012
Human Rights and International Law, February-March 2012
The constitutionality of President Obama's recess appointments, January 2012
Do caps on medical malpractice damages hurt consumers?, December 2011
Trial Lawyers Inc.: State Attorneys General, October 2011
Wal-Mart v. Dukes, April 2011
Kagan Supreme Court nomination, May-June 2010
Election roundtable, November-December 2006
Who's the boss, September 2006
Medical judgement, July 2006
Lawyer Licensing, May 2006
Contingent claims, April 2006
Smoking guns, July 2004

Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.