The Court

The Kagan Vote and What It Signifies

2010-07-18T15:42:00.000-07:00

Predicting the Senate vote in Supreme Court confirmations is not difficult, either a statistician or any political pundit could make a pretty good guess. Statistically, using the Judiciary Committee vote as a predictor has typically meant that there will be about six "No" votes in the Senate for every negative vote in committee. If Lindsay Graham is the sole Republican committee member to support confirmation, the remaining six "No" votes suggest about 36 "No" votes in the Senate. Were Graham to cast a seventh "No" vote in committee, however, it seems unlikely there would be 42 negatives for Kagan on the Senate floor. This is perhaps the most conservative Judiciary Committee contingent for the Republicans in the voting history of the committee, and unanimous opposition by those committee members does not signal solidarity among all Senate Republicans. The New England contingent of Snowe, Collins, Gregg, and now perhaps Brown will not necessarily follow suit. If those four support Kagan, then the Republicans are poised to cast 35 votes against confirmation. Assuming all Democrats adhere to the party line along with the two Independents, then Kagan will have 65 votes propelling her into the Supreme Court. If she manages to pick up Senators Graham and Richard Lugar of Indiana, then she can accumulate 67 confirmation votes. Sotomayor received 68 last year.

Except for the party leadership, though, such predictions are fairly useless. The vote will be what it is. Assuming, however, these numbers come to pass, what they reveal is a politicized confirmation process, one in which Republicans have come around to the view that they may oppose a nominee on the basis of her political ideology and the anticipated liberal positions she might favor in particular Court cases. Not all opponents will be willing to admit that. A number will couch their opposition in terms of the military recruitment narrative favored by the Republicans, but acceptance of that narrative is itself a function of political ideology. More so than Democrats, Republicans have been trapped by their own rhetoric that pillories any results-oriented approach to evaluating Court nominees. Conservatives are no less results-oriented than the rest of us, but they must couch their opposition in language that suggests they are not driven by ideological concerns. Democrats built their opposition to Robert Bork in 1987 precisely on the basis that he was simply too conservative, "outside the mainstream" being their contribution to the rhetoric that infuses the contemporary confirmation process.

Those who decry the partisanship represented by the forthcoming vote fail to understand that the Court itself is part of the political process and, as such, so too is the nomination and confirmation process. Recognizing this is actually the first step towards creating a more serious dialogue in the confirmation hearing, paving the way for a dialogue on alternative conceptions of constitutional and statutory language, as well as other jurisprudential constructs. Clearly the Court is more constrained than other political bodies, but one cannot ignore the differences between a Justice Scalia and a Justice Stevens and having a discussion that would permit views like their to be discussed and debated in a Senate confirmation hearing would constitute a great exercise in civic education.

Acknowledging political differences does not mean that a senator must always vote his or her partisan preference. Like Lindsay Graham, a bona fide conservative, a senator could reason that Kagan is a liberal and likely to favor positions on cases before the Court that would be at variance with his. However, she's the nominee of a liberal president, she's replacing perhaps the most liberal justice on the Court, and, for a liberal, she seems to possess the temperament, intelligence, professional competence, and integrity that he hopes would characterize both liberals and conservatives on the Court.

Kagan will take her place on the Court, and the Court will be changed to some degree. She is not John Paul Stevens, and as yet, neither we, nor even she, know who Justice Elena Kagan will be.

Kagan Critique of Process Intact

2010-07-01T11:45:00.000-07:00

It appears that Elena Kagan's critique of the confirmation process remains largely intact. The best opportunity for a change in the process evaporated when Kagan opted to follow precedent and refuse to address issues that might conceivably come before the Court, which, of course, eliminates pretty much anything we really want to know. Her testimony might give even the Democrats pause, considering the ease with which she was ready to accept as "settled law" even a 5-4 decision on gun control that came down on the first day of her committee appearance. It appears, however, that “settled law” means little more to her than “precedent.” Marbury v. Madison is settled law, except perhaps to Justice Scalia. For conservatives, Roe v. Wade is a precedent, a wrongly-decided case they certainly do not view as settled law. Democrats surely hope that a number of recent 5-4 cases decided by the conservative majority are not settled law, but have only a tenuous precedential value that could some day swing differently.

What is the rationale for not responding to questions on issues that might come before the Court? David Souter may have stated it best in his confirmation hearing:

If the judicial process is nothing else, it is a process in which in every court and on every issue that may come before a judge, the people who come before him can have a fair hearing . . . . a fair hearing requires a willingness of the court not only to listen, but genuinely to examine the position which the court is inclined at that point to take.
Anything which substantially could inhibit the court’s capacity to listen truly and to listen with as open a mind as it is humanly possible to have should be off-limits to a judge. . . . can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all practical purposes, to the American people?

In addition to the argument that nominees should avoid any appearance of having prejudged important constitutional questions, Senator Hatch has also argued that the Senate should avoid any “ideological inquisition” that might stir up political partisanship concerning the nomination. Guess which nomination that was, Bork or Kagan?

The argument in favor of the kind of exchange that Kagan advocated in her 1995 book review article is the right of the people and the need of the senators to know what kind of justice this nominee is likely to be. In 1981, Senator Denton told nominee O’Connor, "It is my earnest hope that your response will be neither broad nor bland, because I will base my single vote on those responses." Nineteen of Denton’s 23 questions dealt with abortion, and his futile attempt to draw O’Connor out on the topic would have produced a “No” vote from him, as promised, except he yielded to pressure from the Republican leadership and abstained in the committee vote and voted affirmatively in the full Senate.

The Senate has long ago reached a point of reasonable acceptance regarding the suitability of questions pertaining to a nominee’s constitutional and judicial philosophy. It has not yet reached a point at which the burden of proof has been laid on the nominee and the nominee’s supporters. That likely will not happen until some senator, some day, stands up to vote “No” on a nominee because of the nominee’s refusal to be forthcoming to questions from the Committee. Senator Specter may be ready to take that step.

Kagan v. Senate Judiciary Comittee

2010-06-27T23:39:00.000-07:00

I can’t recall any Supreme Court nominee having written in advance on the nature of confirmation hearings, prescribing what that process should entail. (That may say more about my memory than reality.) In a 1995 book review (62 U.Chi.L.Rev. 919), Kagan asserted that “the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.” Specifically, she argued that confirmation hearings should address a nominee’s judicial philosophy as well as how this philosophy might be applied in practice, “by evoking a nominee's comments on particular issues--involving privacy rights, free speech, race and gender discrimination, and so forth--that the Court regularly faces.

While this might be the ideal in a confirmation hearing, it typically fails to achieve that level of forthright and informative discourse. The president’s political opposition, whether it be in the Senate or among the advocacy leaders, is too intent on seizing any and all opportunities to frame responses into opposition bullet points that can excite public opinion which, in turn, can be leveraged to their financial and political advantage. Cognizant of the opposition strategy (in part because they’ve been there and done that) the nominee’s supporters are too intent on limiting the discourse so that it cannot generate sufficient fodder to arouse controversy and substantial opposition in the public sphere, perhaps jeopardizing the nomination.

The result is a rather strange dance of politics (closely resembling a loose canon), in which both sides refuse to admit that the process of evaluating Supreme Court nominees is driven by politics, except to note with some disdain that the “other side” is playing politics. In reality, of course, they are all engaged in politics, one strategy of which is to claim that you are not being political. The mere fact that the president gets to choose the nominee and the Senate gets to confirm or reject makes it political. There’s nothing wrong with that.

By admitting its political nature, the Senate and the nominee could actually begin to engage in the type of dialogue that Kagan envisioned for the process. Senators could oppose the nominee because they disagree with her political philosophy or her take on several key issues that have characterized the Court’s stormy history. Instead, we’ll have to hear the opposition assert that her lack of judicial experience is sufficient grounds for opposition, when apparently it was not for Louis Brandeis, Felix Frankfurter, Earl Warren, or William Rehnquist. Of course, those 19 months for Clarence Thomas was all that was needed to put him over the top, I suppose. We’ll also hear her characterized as a judicial activist, though only by those unable to see the activism of Scalia, Roberts, or others on the conservative wing of the Court.

What we need is dialogue that will permit us to perceive that this nominee has the intellect, the understanding of and ability to deal with significant constitutional issues, the integrity to faithfully interpret the constitution and laws as they understand them, and some sense about what that understanding is. As the number of closely divided Court decisions reveals, there are distinctly different points of view on any number of these principles. And it’s OK for a senator to decide his or her vote on agreement or disagreement with the nominee on this basis.

Opposing Sotomayor

2009-07-27T17:29:00.000-07:00

Six of the seven Republicans senators on the Judiciary Committee are set to oppose the confirmation of Sonia Sotomayor. We may anticipate, then, that between 30 to 35 Republicans will oppose the nomination, presumably all 60 Democrats voting to confirm. Typically each "No" vote in committee is worth about 6 "No" votes in the Senate. The committee Republicans, however, are more solidly conservative than the party's overall membership, and Lindsay Graham's support does give some permission for other Republican conservatives to vote in favor of confirmation should they be so inclined.

In confirmation votes the problem for those wishing to vote "No" is not the vote itself, but providing a public rationale for that vote. The president's party has no problem; they can simply follow the president's lead. All will vote to confirm, and the most common explanation for that vote will be the judge's superb qualifications, which include her 17 years experience on the bench, her intellect, her background, her judicial philosophy, and perhaps her performance at the hearing, which resulted in more than 60% of the public favoring her confirmation and only 25% opposing it.

Republicans face a different problem. Some will follow the path of Judiciary Committee member Lindsay Graham. He starts from a position that offers some deference to the president as the one authorized to make the selection. Then, having accepted Sotomayor as qualified—with strong endorsements from various legal groups, most prominently the ABA, and her clear experience and record as a judge, along with her background and intellect, he must assess whether her extra-judicial statements established a bias and judicial philosophy that would sufficiently offset those positive attributes to permit a "No" vote. Ultimately, Graham decided he should take Sotomayor at her more moderate word and proceed to vote for confirmation.

John Kyl, Republican senator from Arizona, has no such problem. It was clear from his opening statement that he, along with Jeff Sessions, was set to pursue a negative partisan role. By characterizing Sotomayor's extra-judicial statements as partisan, biased, and injudicious, Kyl created a false dichotomy by which Republican opposition could be justified. Forget her bench record, that of being a judge with the apparent temperament and intellect to serve as a Supreme Court justice. Her past extra-judicial statements betrayed a bias that she would be unable to rein in as a Supreme Court justice. If Sotomayor stands by her statements, then one should vote "No" according to the Kyl logic. On the other hand, any attempt to explain away or moderate those statements can be characterized as a confirmation conversion, saying what she thinks they want to hear in order to gain their favor. This will be the basis for Republican opposition. Her performance at the hearing will have been insufficient to assuage Republican concerns that her biases will not adversely affect her judicial decision-making on the Court.

When Republican presidents in the 1980s adopted the strategy of appointing Federal Appeals Court judges to the Supreme Court, Republican senators followed by arguing that such judges had already been confirmed by the Senate once and that confirmation to the Supreme Court should follow. Judicial experience was key, and the lower court judicial record was sufficient evidence of their ability and temperament. Sotomayor presents a problem because she has more experience than any of them and her record supported Democratic claims of integrity and temperament. Indeed, the Ricci case could be interpreted as an example of Sotomayor's judicial restraint while exposing conservatives as being no better than liberals when it comes to seeking judicial outcomes consistent with one's political ideology. Now Republicans have had to admit that the Supreme Court provides a greater opportunity for personal values and beliefs to play a role in decision-making. To claim that such an affliction is only a liberal trait seems far-fetched but one Republican senators seem willing to make.

Conservatives, of course, are convinced that Sotomayor's decisions will closely track those of Justice Souter, which puts her in agreement with the more liberal wing of the Court—Souter and Ginsburg having an 87% agreement rate in the 2007-08 term of the Court's nonunanimous cases. (Typically about half to two-thirds of the Court's decisions have split opinions.) By the way, Alito and Roberts have similar agreement rates, as do Scalia and Thomas, the latter pair's agreement with Souter being around 35%. Moreover, they fear she may become a more vocal and forceful presence on the Court than Souter, a stronger (and younger) liberal counterpoint to Scalia.

Republicans are right to oppose Sotomayor if they want to oppose one whose liberal values will influence her decision-making just as Democrats were right to oppose Roberts and Alito from the perspective that their conservative values would influence their decision-making. What we need from both sides is an admission of that as the basis for their votes.

Do the Personal Views and Values of Justices Affect Their Judicial Perspectives?

2009-07-15T16:48:00.000-07:00

The rationale for opposing the confirmation of Judge Sotomayor has now become clear. Republican conservatives will argue that she will allow her personal views and values to affect her decision-making on the Court. That view begs the following questions:

Do background and experiences affect perceptions and understanding?
Do perceptions and understanding affect opinions and perspective?
Do opinions and perspectives affect decisions, even of judges?

The answer to all three questions is “certainly they do.” Over sixty years of scholarly research have time and again confirmed what we all know to be true: people are different and their different beliefs, understandings, and perceptions differ by sex, by age, by ethnicity, by economic status, by upbringing, by education, and any number of other characteristics that define their very essence. Does donning the judicial robe empower judges to somehow hold these factors in check? Of course not. What does allow judges and justices to attain the impartiality we expect of them is not the impossible task of checking one’s values and experiences at the door, but putting them into play along side the critical capacity to be open to arguments and claims from perspectives other than their own. Moreover, they must possess the intellect and the intellectual honesty to discern when the law requires them to rule in a way that is inconsistent with their personal preferences.

Much publicity has been accorded a reference by Justice O’Connor of an assertion by Oklahoma Justice Jeanne Coyne that a wise old man and a wise old woman would ultimately reach the same conclusion. O’Connor spoke in the context of seeking to free both men and women from traditional role limitations. Her use of Coyne’s statement was taken out of context, first by Sotomayor in thinking that O’Connor was suggesting that both men and women were capable of wise decisions (yes, they are) and that they would reach the same conclusion (no they wouldn’t) and then by Jeffrey Sessions and other Republicans taking it more literally to connote that one’s sex or gendered perspectives should not influence one’s perceptions and interpretations of the law (but they do). O’Connor herself, of course, is the perfect example of a wise old woman who consistently found herself in the middle of eight wise old justices who could not reach the same conclusion, her decision determining which four would be empowered to join her in saying how we must now interpret the law of the land.

Tom Coburn blew the Republicans’ cover. In questioning Sotomayor about the second amendment, he moved into whether individuals have the right to self-defense. Her response noted the intricacies in such a question, applying legal evasiveness to what the good doctor thought should be a rather straight-forward “Yes” response. Somewhat frustrated, he said, “what American people want to see is inside (you) and what your gut says.” Coburn thus acknowledged what the Republicans know, but what Sessions, Kyl, and others have denied during this hearing—that experiences and personal feelings do indeed affect judges’ legal thinking.

Cases before the Supreme Court usually offer two or more very compelling but competing legal arguments, and the one that prevails rarely involves an unambiguous application of the law or Constitution. Republicans know that, and they also know quite well that those justices and judges who have similar value systems to their own will more often than not come down on the side of the argument that produces their “correct” outcome. That’s why they have spent so much time in previous nominations seeking personal views of nominees on a variety of issues, but particularly abortion. Justices are more amenable to those arguments and interpretations consistent with their own belief system, itself a product of one’s experiences and personal values.

It would be a lot simpler world if both Democrats and Republicans, liberals and conservatives, would simply admit their preference to place on the Supreme Court those justices who they believe are likely to interpret the law consistent with the senators’ own belief systems. Republicans, however, gained the upper hand in the public relations war by creating a myth that conservative jurisprudence and philosophy are somehow consistent with judicial restraint and impartiality, that conservative justices will reach decisions only by referencing the textual meaning and original intent of the law and constitution. Liberal jurisprudence and philosophy, they argue, promote judicial activism, reaching for outcomes based solely on personal preferences, overruling the will of the people as expressed through the legislative branch to create judge-made law, and disregarding the original intent of the framers of the Constitution. The conservative definition of judicial activism used to include ignoring the principle of stare decisis, overruling previous decisions of the Court to impose one’s own agenda. They have backed off from that aspect of judicial activism because they seek a Court that will overrule previous decisions that have produced liberal outcomes.

There’s nothing wrong with opposing a nominee on the basis of her perceived liberal or conservative predilections. Senators may apply any criteria they wish. The president has done so, and any senator may follow suit. The Senate is an equal partner in this process; it just doesn’t get to pick the nominee. It can, however, force the president to pick a different one. So oppose Judge Sotomayor, but do so because you are at odds with her presumed liberal philosophy, not by creating a bogus claim that she will somehow allow her experiences, value system, and judicial philosophy to influence her decision making as if Justices Roberts, Scalia, Thomas, or Alito do not.

The best we can do is to appoint justices who will achieve impartiality through blending their legal expertise with the intellectual capacity to open-mindedly weigh alternative arguments and reach the judgment they believe best comports with the legal principles at issue. To that end we also benefit from a Court that brings different perspectives to bear on the issues at hand.

Reality TV: The Senate Judiciary Committee Confirmation Hearing

2009-07-07T13:22:00.000-07:00

Reality TV—purposive role-playing using contrived narratives purporting to show people in real-life situations. Wait a minute! That sounds like a Senate Judiciary Committee confirmation hearing. Indeed, the Senate can lay claim to having invented reality TV back in 1981 with the televised hearing for Sandra Day O’Connor’s confirmation. Now after a hiatus of more than three years, the Alito hearing of 2006, we have the Confirmation Hearing of Sonia Sotomayor, a four-day mini-series beginning July 13.

As show time nears, each of the committee’s 19 senators has one or more aides busily creating the senator’s script, an opening statement along with questions that the senator can ask the nominee. Development of this script is guided largely by what role the senator has defined as appropriate for this nomination. If you want to make sense out of what otherwise may appear as a mind-numbing, largely repetitive set of statements and questions, it helps to analyze what role you think the senator is playing and how he or she implements that role. Past nominations have revealed four roles commonly adopted by senators. You may be able to identify others.

Role selection is typically a function of two variables: one’s initial view of the nominee, which itself is usually a matter of party and ideology, and whether the nomination is perceived as controversial. Despite the Supreme Court’s recent decision in the Ricci case, the Sotomayor nomination has not achieved controversial status, meaning that her confirmation is certain, barring of course some hike on the Appalachian Trail.

You might think that the purpose of the hearing is to allow senators to gather information so they might decide whether to confirm or reject the nominee. A senator in that position plays the role of an evaluator, asking questions of the nominee that will address those key issues critical to the senator’s vote. Similarly, the opening statement will reflect the importance of the hearing and the nominee’s performance in helping the evaluator come to a decision. Never was that more clearly stated than by Jeremiah Denton when he told nominee Sandra O’Connor, “Your answers at this hearing . . . will determine my estimate of your position . . . and I will base my single vote on those responses.”

True evaluators in the confirmation hearing are rare, however. Senators have already spoken privately with the nominee and have gathered file drawers full of information about her. Most, therefore, come to the hearing with a sense of how they will vote. That being the case, then what are these senators going to do with their time?

One option is to choose the partisan role. A positive partisan supports the nomination and will use the opening statement to praise the nominee and build the case for confirmation. Questions to Sotomayor from the positive partisan will allow her to showcase her judicial temperament, expertise, intelligence, philosophy, and compassion. The negative partisan seeks to sink the nomination and uses the opening statement to construct the nominee as ill-suited to be a justice. Subsequent questions will attempt to discredit, embarrass, and otherwise show the nominee’s lack of fitness to serve on the Court. The difference between the positive and negative partisan was in stark contrast with the same nominee, Robert Bork. Republican Orrin Hatch opened by saying, “ I feel honored to welcome to the committee one of the most qualified individuals ever nominated to serve on the United State Supreme Court.” Democrat Ted Kennedy followed by asserting, “ Robert Bork falls short of what Americans demand of a man or woman as a justice on the Supreme Court.” The questions from these two senators clearly established their playing the roles of positive and negative partisan.

Whereas the partisan’s vote is already certain and questions are designed to help or hurt the nominee, the role of validator is played by one who is pretty certain about how he or she will vote and uses the hearing to confirm that expectation. Unlike the partisan, though, the validator asks questions to overcome any nagging doubts, any concerns that remain before confirming the decision to support or oppose the nomination. Clearly illustrative of this role is Senator Metzenbaum’s opening statement in Antonin Scalia’s hearing: “There can be little question about the fact that he is qualified for the position of association justice. My only area of concern relates to some of the views Judge Scalia has stated in a number of critically important areas.”

In the Sotomayor hearing, we shall surely see Democratic positive partisans making the case for her confirmation and helping her put her best foot forward. Nothing yet indicates any Republican senator plans to pursue a negative partisan role. Some Republicans may be true evaluators, using the hearing to come to a decision about their own up or down votes. A number of Republicans are likely to be validators, checking on key aspects central to their view about what a justice should be.

These three roles, however, don’t capture the behavior most likely to be evident. One can engage in partisan play only for so long, while evaluators and validators determine at some point what they came into the hearing to find out. These individuals then join others who adopted a fourth role, an advocacy role that manifests itself in a number of apparently different behaviors. Advocates have a message and a target for that message. The obvious target, of course, is the nominee. Thus, Senator Kennedy pursued the topic of civil rights with Chief Justice nominee John Roberts, attempting to secure concessions from him regarding the “irreversibility” of progress in civil rights over the past 50 years. Senator Grassley sought assurances from Roberts that the courts may not take initiatives to solve societal problems when the political branches are slow to act. Joseph Biden tried to persuade Sandra O’Connor that as the first woman appointee to the Court she could (and should) speak out on women’s rights.

Advocates may also target others, including fellow senators or their constituents back home. Advocacy is less about confirmation than it is about the senator demonstrating his or her earnest concern about certain issues and attempting to educate, advertise, and persuade or otherwise cajole the target into an appreciation of the senator’s position. Senators need to impress, but when you are thirteenth, fourteenth, on down to nineteenth in line for asking questions, it’s not easy and the advocacy role may be all that’s left to play.

So enjoy the mini-series, even though a surprise ending does not seem to be in the works. See if you can identify what role each senator is playing, observe shifts in role during the course of a senator’s questioning, and assess exactly what it is the senator is trying to accomplish in asking each particular question. If you would like to get a more complete description of these roles and examples of their application, go to the site “A Vacancy on the Court” at http://supremecourt.ws/sjc.html, the page on the Senate Judiciary Committee.

Sotomayor and the Ricci Case

2009-06-29T14:29:00.000-07:00

Conservative opponents to the confirmation of Supreme Court nominee Sonia Sotomayor were provided with new ammunition in their flagging attempt to sidetrack her nomination. In a case (Ricci v. DeFastano et al.) coming out of the Second Circuit in which Judge Sotomayor participated, the Supreme Court decided in favor of the white firefighters (Ricci) who claimed the city of New Haven violated their Title VII civil rights by throwing out the results of a test required to qualify for promotion. In that test, white firefighters scored higher than the minority firefighters. The federal district judge had sided with New Haven (DeFastano et al.) and Judge Sotomayor joined with two of her colleagues in the Second Circuit to affirm the district court ruling. The Supreme Court now has overruled that decision.

This is a complex case that conservative opponents of Sotomayor have already tried to oversimplify as a straight-forward instance of racial discrimination against whites. Some will also try to paint this overturning of the Second Circuit as an indicator of Sotomayor’s lack of fitness to serve on the Court. Alas, both arguments constitute shameless efforts to influence public opinion, a public these advocates are counting on to be ill-informed about both jurisprudence and the workings of the Supreme Court.

With respect to the Supreme Court’s decision, Ricci was the winner because Justice Anthony Kennedy saw it that way. This was the fourth 5-4 decision in recent weeks in which Kennedy has decided whether the outcome will be one preferred by the Court’s four conservative justices or the four more liberal ones. In Ashcroft et al. v. Iqbal et al. Justice Kennedy wrote the Court's conservative opinion imposing limits on the liability of government supervisors. In Montejo v. Louisiana, the conservative bloc effectively reversed a 1986 precedent protecting a defendant's 6th Amendment right to have counsel present during interrogation by the police after one's arraignment. Subsequently, Kennedy joined his more liberal colleagues in Caperton et al. v. Massey Coal to rule that elected judges may have to recuse themselves in cases connected with individuals who were huge contributors to the election campaign of that judge. In each of these instances, had Kennedy sided instead with the minority of four, the Court decision would have been the reverse.

An argument that Sotomayor is somehow unqualified to be on the Court because of her affirmation of the district court’s ruling against Ricci fails on two fronts. First, circuit court judges have less latitude than do Supreme Court justices to break new ground in interpreting legal issues. Doing so would constitute the very judicial activism that conservatives purport to decry. Second, even assuming that Sotomayor would have decided against Ricci were she on the Supreme Court, and she likely would have, to say that disqualifies her from being on the Court is tantamount to saying that Justices Stevens, Breyer, Ginsburg, and Souter are unqualified to be on the Court, or that Justices Roberts, Scalia, Thomas, and Alito are unfit because of their minority opinion in the Caperton case. Interpreting the law is a complex endeavor that engenders reasonable differences of opinion. After all, without controversy, a case is not a case.

I believe it is legitimate to oppose the nomination of Sotomayor because you would prefer someone more in the mold of Alito or Scalia than of Ginsburg or Souter. Using the 5-4 decision in Ricci, however, to couch that preference in terms that question her very fitness or her bias, especially by people who know better, is fundamentally dishonest.

[This blog entry is part of the civic education project, "Vacancy on the Court," which may be found at http://supremecourt.ws]

Rhetoric and Rancor in the Confirmation Process: A Wee History

2009-06-29T14:20:00.000-07:00

Ever yearn for those good old days when Supreme Court nominations did not generate such partisan rancor? Many consider that to be any time before the nomination of Robert Bork in 1987. Remember this reaction to his nomination?

“. . . taking into view [his] reputation, character, and professional career, he is not a fit person to be a member of the Supreme Court of the United States.”

Oops, my mistake. That comment wasn’t about Robert Bork; it was directed at Louis Brandeis in 1916. Woodrow Wilson did not shy away from nominating this intellectual giant, the first Jew to serve as a justice, but the opposition was fierce and the rancor distinct.

Still, that comment seems rather mild, almost gentile. Was it really that way back when? Let’s get more personal. What about “an office too important and dignified for a character not very far above mediocrity. . . [he is] wholly destitute of every qualification for that important station.” Or “[This nomination] is an affront to the Court and to the people. [It] is as menacing as it is unfit. [The president has] picked the one who would be generally regarded as the worst he could find.” Surely, these observations rank right up there with the comment made by a senator in voting against Clarence Thomas, “I cannot find a single distinguishing aspect of [this nominee's] legal career that would warrant his consideration for the Court.”

The “mediocrity” comment was directed at one of our very first justices, John Rutledge, nominated to be our second Chief Justice in 1795 by the Father of our Country. The “worst” comment was directed at Hugo Black in 1937, considered by many to be one of the strongest voices in the Warren Court of the 50s and 60s.

If we were to hear this following comment today, it would undoubtedly elicit complaints about how politicized the process has become: “Even those most acquainted with modern degeneracy were astounded at this abominable nomination.” But this comment came in 1811, directed at Alexander Wolcott, a nominee put forward by the Father of our Constitution, James Madison.

Hyperbole abounds in reactions to nominees. Of Roger Taney, an Andrew Jackson nominee, it was said, “[He administered]...the most dangerous blow which has been given our constitution and law. If [he] ... be now confirmed, all will be lost.” The “blow”was Taney’s undermining of the Second Bank of the United States, as Jackson’s Secretary of Treasury. Perhaps the statement was not overly aggressive: Taney’s majority opinion in the Dred Scott case is considered by some as moving the nation a step closer to the Civil War.

One of the most famous reactions to a nomination was made, not by an opponent, but by a supporter. Never was “damning with faint praise” more evident than in Senator Roman Hruska’s effort to support Nixon nominee Harold Carswell: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Frankfurters and Cardozos . . .”

If there’s a lesson to be gleaned from all of this, it is that the process of appointing Supreme Court justices has always been partisan and political. While plaintive voices and oppositional reactions of advocacy groups have proliferated with expanding media fora, rancorous rhetoric has been common in the public sphere from the dawn of the republic. If it ever seemed otherwise, it was only because of solid Senate support for the president or because the president himself chose to exercise a politics of consensus rather than the politics of controversy in making a nomination.

And while we may legitimately decry the rancor, making the appointment process an adversarial one is not inappropriate. After all, the justice system itself assumes an adversarial system is the best way to find the truth.

[For more on this subject, visit "A Vacancy on the Court," a civic education project of Professor George Watson at http://supremecourt.ws]