Welcome to our featured discussion on the future of the Supreme Court, in light of Judge John Roberts' nomination. We're extremely privileged to have two of the nation's leading legal scholars--in both civil and constitutional law--joining us for this discussion: Richard Epstein and Stephen Presser. For more on these scholars, see my longer post in the Forum, earlier today. I will update here as the scholars post; readers can also scroll down or click onto the specific entry in the right-hand column.

UPDATE: Professor Epstein, 7/21; Professor Presser 7/22; Professor Epstein, 7/26; Professor Presser, 7/26; Professor Epstein, 7/28; Professor Presser, 7/28; Professor Epstein, 7/29; Professor Presser, 7/29; Professor Epstein, 8/3; Professor Presser, 8/3; Professor Epstein, 8/4; Professor Presser, 8/4; Professor Epstein, 8/5; Professor Presser, 8/8; Professor Epstein, 8/8; Professor Presser, 8/11; Professor Epstein, 8/12; Professor Presser, 8/18; Professor Epstein, 8/19; Professor Presser, 8/26; Professor Epstein, 8/29; Professor Presser, 8/29; Professor Epstein, 8/30; Professor Presser, Sept. 1; Professor Epstein, Sept. 1; Professor Presser, Sept. 3; Professor Epstein, Sept. 3; Professor Presser, Sept. 4; Professor Epstein, Sept. 4; Professor Presser, Sept. 5; Professor Epstein, Sept. 19; Professor Presser, Sept. 20.

Earlier this morning I published a column in The Wall Street Journal that said, in essence, that criticism of philosophical positions is a two-way street. More concretely, it challenged the practice whereby senators criticial of a nomineee could make statements as if from high, so that the soundness of a candidate's views, in this case John Roberts, is measured by the degree to which they deviate from that appointed position. My specific target on this occasion was Senator Charles Schumer, for the remarks he made after President Bush had announced the Roberts nomination. But the overall point goes to both sides of the political debate, and thus covers charges that might come from the right against a future Democratic nominee to the court.

I think that it is useful to stress this point for one simple reason. Those people like myself and Steve Presser who harbor limited-government libertarian views have much to be critical of the views of both parties. Indeed, the recent decision of Gonzalez v. Raich shows vividly how a Republican administration can push its Commerce Clause arguments to the limits. But at this point, Roberts is the target, and the sensible response is to separate disputes over intellectual positions from disputes over the choice of nominee. Roberts has a sterling record, and this morning's column by David Brooks points to his many well-known and admirable personal traits. Arguments about substantive positions should be made in briefs, and not in arguments over nomination.

Everyone has to remember that a nominee is a bundle of positions on all sorts of issues. It is as if we were given the choice to take or leave a bag of groceries in a supermarket, some of whose contents we liked and some not. In general, we are better taking the bag if there is an all-or-nothing choice even if we do not like all of the items. In politics it is still worse because there is no candidate who is worth his or her salt who does not have some features various groups do not like. All that we can ask for is to have a person who will listen to the arguments when individual cases are decided, issue by issue.

I do not think that the hard-left will be able to stop Roberts by itself, although it would love to try. Unless and until there is some new revelation (which there won't be) the sensible strategy for most liberal democrats is to follow Jeff Rosen's lead in his New York Times article, and be gracious about the whole matter. Let us hope that this position prevails. The fewer postings between now and confirmation, the healthier the body politic.

As Richard Epstein appears to have hinted, he and I have no serious disagreements over John Roberts, over the manner of evaluating qualifications for judges, or, perhaps even what their appropriate jurisprudential philosophy (a term that I prefer over the currently trendy “judicial ideology” favored by Democrat Senators and their advisors such as Richard’s colleague, Cass Sunstein) should be. I wouldn’t actually characterize myself as a libertarian, again as Richard implies, unless we mean by “libertarian” one who simply believes in the liberty the framers of the Constitution sought to guarantee, since I prefer to think of myself as a “paleoconservative,” one who believes the Constitution ought to be interpreted according to the essentially conservative philosophy of the Framers.

A paleoconservative also understands that good government ought to foster an understanding of the duties and responsibilities of citizens as well as their liberty, and thus I might be somewhat more willing to endorse some governmental initiatives than would Richard, but over the years, whenever I’ve listened to Richard or read something he’s written I can’t remember much that I’ve disagreed with. Let me be even clearer on this last point, and let me write (blog?) for a moment in the biographical vein that Richard used in his Wall Street Journal piece. Thirty-two years ago, when I was seeking my first teaching job I was interviewed by the then Dean of USC and his young colleague, Richard Epstein. Richard did most of the talking, in that rapid-fire and dazzling manner we all know so well, I found it impossible to get a word in edgewise, or indeed, to form any coherent responses, and I slunk away from the interview, and, of course, got no USC offer. Richard went on to his distinguished career in Chicago, and I still managed to gain a toehold in the academy, but I have never shed my early awe of Richard, his delivery, and his intellect. Even if I disagreed with him, I’m not sure I would know what to say.

Still, I ought to say something, if only to give us more to talk about, and there is a bit more that can be said about John Roberts and the confirmation process. The question on most bloggers’ lips (if blogs have lips) is whether Roberts is a “stealth” candidate, a la Souter (Ann Coulter thinks he is) or whether he’s likely to vote to overturn Roe v. Wade (about which NARAL and PFAW already seem concerned). These are the wrong questions, as Richard so clearly maintains. The questions that ought to be asked are, “Is this a person who really does believe that the tasks of a judge and a legislator are different?” and “Is this a person who displays the kind of learning and integrity that suggests that he or she might actually seek objectively to interpret the Constitution and laws in the manner Alexander Hamilton limned in Federalist 78?” Roberts’s first hearings and his professional track record so far give every indication that he is that sort of person, and indeed proclaim it in a manner that we rarely see in a candidate. We can only hope that the Democrats in the Senate, instead of launching a fishing expedition to uncover some foible that can be adversely spun against the judge, will simply accept the obvious. Judge Roberts has apparently suggested that he’d be reluctant to fasten any label upon himself, so Richard and I don’t know if he’s a libertarian or a paleoconservative, but it does strike me that he’s the right person for the job.

I was both pleased and amused to read Steve’s initial contribution to our dialogue over the ins and outs of the Roberts nomination. I confess that I do not have a distinct memory of the interview that he had at the University of Southern California. But if he said that I talked too much, then I find it hard to deny that it all happened. I do know that we interviewed many strong candidates at USC those days, and often made terrible mistakes when we did not extend offers. I used to say that would could staff the finest law school in the United States with people who did not receive our offers. And though I am gone from USC for over 30 years, it still occupies a special place in my heart, as the home that gave a much needed boost to my fledgling academic career.

Our blog, however, is to talk about weightier things, and Steve has mentioned two. One the Roberts nomination, and second the choice of philosophies needed to understand the Constitution. On the first, it seems that the issue of the moment is whether Judge Roberts is, or has ever been, a member of the Federalist Society. I do not know whether I count as a dues-paying member of an organization to which I have devoted much energy over the past 25 years, but it hardly matters. It is just inconceivable to me that the confirmation process would turn on an issue of so little relevance to the task at hand. One could understand a sense of outrage at people at nominees that spew hate and disdain from their lips. But if Federalist Society membership counts as reason to examine Judge Roberts closely, then membership in the American Constitution Society should be a red flag when the next Democratic nominee comes before the Senate. In effect, political loyalty becomes the litmus test for confirmation, and the entire process degenerates into a situation where the strongest advocates on each side demand the right to block nominees from the other side. This has to be a form of institutional madness, which will only receive too much weight if this line of inquiry has any traction in the Senate. We have to have the faith that all nominees will listen to arguments for both sides before deciding a case. The effort to pin people down to their past statements denies the possibility of intellectual growth. It speaks to the pettiness of the questioners, and not to the merits of the candidate.

Let us therefore move on from the latest tempest in the teapot to the larger question of whether my constitutional theory is paleoconservative or libertarian. The first point here is that the opposition is overstated because of the heavy congruence of the two positions as a matter of historical happenstance. The Constitution has survived as long and as well as it did because the Founders had a clear philosophy that dominated most (but not all) of its key provisions. They were not hard, anarcho-libertarians, but believed that the state had to have sufficient powers to govern, which in turn meant that it had to have sufficient powers to tax. But these powers were exercised to the end of protecting liberty and property, which received accordingly explicit constitutional protections. An honest reading of these key provisions will clip the wings of government to, as the phrase goes, “adjust the benefits and burdens of economic life,” because of the clear understanding that this is just a fancy modern way (Justice Thurgood Marshall’s way) of saying that it is all right for the state to take from A and give to B so long as it runs its program of confiscation through some large facility, like a pension guaranty fund, to achieve its result. There will of course be cases that Steve and I differ on, but they are not likely to come up in the current environment, where the dominant error is in favor of too much legislation, not too little. But if there is some dispute over how broadly to read a prohibition against titles of nobility, I’m confident that Steve can lead me to the right answer.

It’s a strain to try to think of something to debate, given the eloquence, cogency, and all-around common sense in Richard’s last posting, especially the gracious implication that USC has made hiring mistakes. One more biographical point; I believe that I am actually a card-carrying dues-paying member of the Federalist Society (though who can actually keep track of these things), so that, like Richard, I take umbrage at the notion that it should count against anyone. Indeed, as those of us who’ve participated in any of its conferences know, it is about the most fair-minded debating society around, and always does its best to present center and left views to go along with its traditionalist and libertarian leanings.

It’s a measure of how perverted our law and politics have become that, in some quarters of the polity, to say “Federalist Society Membership” is a coded message meaning “Right-Wing Neanderthal or Troglodyte,” which is probably unfair not only to Federalist Society members, but also Neanderthals and Troglodytes.

Perhaps the main sinner in this regard is Senator Edward Kennedy (although Ralph Neas of People for the American Way and others of his ilk come close), who infamously slandered Robert Bork in his “Robert Bork’s America” speech, claiming that “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.” None of that was even remotely true, of course, and Robert Bork reports that Kennedy later coyly explained to him that his words were “just politics.” And that’s the problem--the media and the American people have too long permitted politicians the freedom to fail to distinguish between law and politics. Too many in the academy think there is no such distinction, but if there’s not, then our profession is built on a massive lie, and Richard Epstein and the rest of us have been writing in vain.

And to come back to Richard’s point about titles of nobility. We have no established church, no monarchy, and no aristocracy. All we have, for sacred veneration, is the Constitution and laws; all we have is our ideal that we have a government of laws, not men. Maybe it’s no surprise that politics should permeate law, since it’s so important to us and since politicians’ power now is so dependent on the law. I once wrote that a paleoconservative is not quite certain that the American revolution wasn’t a mistake, and that we might be better off if we had institutions such as a House of Lords which could offer some competing traditional or aristocratic guidance to that now vested exclusively in the United States Supreme Court. I’d be inclined, in short, to revisit the question of prohibiting titles of nobility, so I’m not sure I can elucidate the nuances of the currently-existing Constitutional provision on the point. Perhaps, Richard, this will give us something to disagree about.

Tuesday, Steve Presser and I concluded our initial love fest in basic agreement that the nomination of John Roberts presented an easy case for confirmation. On this point, I am heartened to report that my own liberal colleague Geoffrey Stone reached the same conclusion when he urged his colleagues on the far left to throw in the towel on the ground that Roberts was not the incarnation of Justices Scalia and Thomas.

Nonetheless the drumbeat to first undermine, and then kill the nomination continues apace. Yesterday morning’s entry from The New York Times was a column entitled “Casing John Roberts”, in which Vikram David Amar urges that the Senate put hard questions to Roberts on a range of issues that go from affirmative action, to late-term abortions, to cruel and unusual punishment, to the display of the Ten Commandments and the scope of sovereign immunity. Of course another commentator could easily find five other hot-button issues on which to dwell.

But again, what are we to make of these protestations? The most obvious point is that no liberal interrogator can claim to sit on that magic podium that makes him fit to judge all lesser human beings. The second point is that the discussion of any of these issues in depth could consume the entire hearing without coming to any conclusion. Certainly on this score no one should trust Amar’s formulation of the questions, nor his desired answers to them.

Here is but one example. How do we think about Grutter and affirmative action? The most obvious point is that Justice O’Connor’s purported use of the strict scrutiny standard to validate the practice was something of a joke. Why should she take the University of Michigan at its word when it says that it hopes the program will be gone in 25 years? That doesn’t make the decision wrong, but it does call into the question the use of the strict scrutiny standard. But when that standard is relaxed, then what happens to cases in which a state wants to segregate high schools by sex in order to promote discipline and learning? We can argue until the cows come home how this should be resolved. But there is no way that questions on this, or any other case by a panel of senators, will be able to steer clear of future business before the Court.

And why do we want to do this? Not in the hope that liberal democrats will find something to cheer about in Roberts. They just hope that he will slip up under pressure. We don’t need this ordeal. And we don’t want a democratic nominee to face the same questions from stony-faced Republican interrogators who will expect a very different set of answers.

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.

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.

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.

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 naïve 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.

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 naïve 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.

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.

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.

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?

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.

Steve’s last posting deals with two kinds of issues, one timely and the other timeless.

The most timely issue on this front is the nomination of John Roberts. The great irony here is that the apparent strength of his support led his diehard opponents to take a very hard line against him as a member and representative of that extreme right-wing group known as—you guessed it—Reagan republicans. That kind of argument can gain traction in cases like Robert Bork’s where there were public lightning rods to which everyone could respond: The remarks about the “unsurpassed ugliness” of the civil rights laws on public accommodation; the firing of the special prosecutor. But for Roberts the charge is only that if we knew more then we would be truly horrified, which is a form of scare-mongering that is weak in general and wholly inappropriate in this case.

Why the last point? Because we do know something about his intellectual style. Roberts was a lawyer who hung out a shingle to attract clients. The first rule in that line of business is to keep a low profile. Taking strong positions on public issues will bring you very little new business, especially as a one-shot appellate lawyer. Ordinary business types don’t want to have to explain why they chose a lawyer who said or believed X. Hence one learns to separate out cases, avoid conflicts, and keep the door open to a list of unknown clients on all sorts of different issues. And to do that you have to think like that: You have to believe that distinctions matter and that general theories are suspect. That kind of person is not a suitable target for charges of ideological extremism because it is utterly inconsistent with his overall habits of work that survive even after he leaves the bar and joins the bench.

Hence it is the critics that look to be outlandish. Not only are they wrong in what they say about Roberts, they are also wrong about their substantive issues. So Senator Leahy wants to talk about the immense progress in civil rights. Not so if one thinks of this supposed outcome as a function of legal remedies against discrimination, which have had little or no ability to raise wages or increase job access. But there has been an enormous advance, notwithstanding the skeptics, in race-relations largely because so many individual citizens and firms have taken it as their mission to work hard on just these issues. The civil rights laws have done little to help them by beating them over the head, and limiting their options.

So the attacks will fail: they say nothing ill about Roberts and nothing favorable to the people who launch them. But this gets back to term limits, which I support in principle. I would love to see him on the Court, and just as happy to see him leave by 68 or 70. I agree that there are other opportunities that vigorous ex-justices could take, but, unlike Steve, I don’t think for the most part that politics is one of them. And if it is, let them pursue it. The decision of Charles Evans Hughes to run for President in 1916 was critical in many ways, but his past service on the Supreme Court was not one of them. And besides anyone can resign to pursue politics right now, which they won’t (because none of them could, if they tried). So I keep to the proposal that it is good across the board to shuffle the deck on frequent occasions. To me the only risk is the difficulty of making sure that the amendment process does not careen out of control. On this one I would take it. I’ll get back to the challenge of Justice Stevens and the timeless Constitution in a future posting.

I’ll let Richard have the