Monday, July 23, 2007

Simple Civ Pro and Supreme Court Nominations

With the Supreme Court’s 2006-07 term concluded, the next big news might well be a vacancy on the Court. Whenever that situation arises, the confirmation process would be vastly improved if senators adopted an approach to evaluating future nominees that roughly corresponded to the basic process of a civil case: pleadings, discovery, trial. More accurately, each individual senator could and should assess his or her support of a nominee on a basis analogous to motions to dismiss for failure to state a claim (the familiar 12(b)(6) motion), motion for summary judgment, and only in very rare cases a verdict after the equivalent of a trial.

Before explaining the analogy, it is useful first to recall the farce that recent confirmation battles have become. Confirmation hearings have devolved into attempts to find gotcha moments, with the inevitable result that the nominees are reduced to mouthing meaningless blather like pledging to be “an umpire who calls balls and strikes.” A major factor contributing to this nonsense is the apparent belief that senators need to “keep an open mind” and not pre-judge a nominee before the hearings. For example, after the most recent nomination, Senator Kennedy said all of the now-expected things about withholding judgment until after the hearings, etc. During the hearings, Kennedy tried and failed to make an issue out of Judge Alito’s possible involvement with a possibly racist organization at Princeton, and the nomination ultimately succeeded (with Kennedy voting against the nomination anyway, even though Alito had met the basic standard of success in the absurd process that the hearings had become, i.e., he did not say anything outrageous).

Senators should simply drop this pretense. There is no reason to insist on withholding judgment until hearings are held, not merely because it is implausible to think that many senators have really not yet made up their minds, but because it is completely reasonable – and fair – to form judgments earlier in the process. Thus my analogy to basic civil procedure.

In a civil case, a party can request that a case be dismissed after the pleadings have been filed. This motion will be granted if a court concludes that the nonmoving party’s case cannot win, no matter what evidence might be found during discovery or presented at trial. For a Supreme Court nomination, the equivalent of a 12(b)(6) motion would be to look at what is immediately known about the nominee, including what the President asserts when submitting the nomination. The best recent example of a nomination that would fail a 12(b)(6)-equivalent motion is Harriet Miers (now back in the news for her possible involvement in the Gonzalez 8 Massacre). Bush nominated Miers for a seat on the Court, saying a few positive things about her and basically leaving everyone to look at her resume. It was not impressive. While it appears that her nomination ultimately failed because the conservative base of Mr. Bush’s party did not support her, it would have been completely reasonable for any senator to say, “I don’t need to sit through hearings to know that this nomination is unacceptable. I don’t even need to go through the equivalent of discovery. Giving every benefit of the doubt, this nominee does not possess the minimum qualifications to sit on the United States Supreme Court.”

A nominee who survives the 12(b)(6)-equivalent then proceeds to the equivalent of discovery. After all of the documents are in, it is then possible to get a very good picture of almost every nominee. In the cases of the two most recent successful nominees, it was completely obvious that both Roberts and Alito were movement conservatives who would decide cases in the way that they have, in fact, decided cases. Some commentators mused openly about pleasant or unpleasant surprises, but it was really beyond reasonable doubt what kind of justices these men would become. Why have hearings? The supposed reason was that people like Kennedy wanted to appear to be “fair,” where fairness in this context took on the odd meaning of giving someone the opportunity to put his foot in his mouth.

The equivalent of summary judgment would have solved this. No one who read the record on Roberts or Alito could have failed to make a reasoned judgment about their fitness to serve. Those senators who wanted to put movement conservatives on the Court could happily vote to confirm, and those who felt otherwise could vote no. The way the process actually played out was not just a waste of everyone’s time but a trap for those who had every reason (based on their viewpoints) to vote against confirmation. It should have been possible for any senator to announce the equivalent of his or her judgment about a summary judgment motion, saying that we knew enough to vote without the equivalent of a trial. And most importantly, doing so would have been “fair” in the very real sense that the whole notion of summary judgment itself is fair. That is, the legal system readily accepts the idea that many questions need not go to trial and that fair and disinterested adjudicators can reach conclusions on the basis of evidence short of direct testimony.

The most likely result of this approach would be the elimination of most confirmation hearings. Few nominees would be so borderline as to require hearings to fill in their views to satisfy senators’ curiosity. On those occasions when hearings were called, moreover, they might actually be interesting, because a president who could not count on 51 votes to confirm a nominee on the basis of the paper record might be compelled to nominate someone whose stated views during confirmation hearings would matter. Over-coaching and dissembling would still quite possibly be part of the process, but if the Senate convenes hearings only after determining that a nominee is really a close call, it would presumably be up to the nominee to make the case that she affirmatively deserves to be confirmed rather than resting on the current presumption that she can only be rejected if she commits a gaffe.

My argument, by the way, is nonpartisan. Senators of both parties should feel comfortable taking this approach, no matter the president’s party. My guess, in fact, is that Republican senators are likely to take the equivalent of this approach with any future Democratic nominee, rejecting nominees out of hand who appear to be too liberal. Many but by no means all Democratic senators have apparently taken this approach to Bush’s nominees. Being clear and honest about what they are doing, though, promises to improve the process by making it clear that senators are applying well-established approaches to legal decision making, clarifying where the presumptions lie and making it clear that Supreme Court justices should be chosen on the basis of the senators’ judgments of their merits and not on whether sufficient drama could be manufactured during televised hearings.


Benjam said...

there clearly is a time for summary judgment (remember the term "demurrer?") under the current process. the candidate meets with key senators in private. that was what happened with miers as well as the "other" justice ginsburg. volokh has a piece on him here both nominations got beat by the 12(b)(6) motion. in technical terms, they got "twelve-b-six-ed."

but mike's suggstion goes a good bit further and it raises serious questions about system performance. how should the nominations process work under divided government? is a republican president really supposed to nominate a liberal judge because the democrats control congress? can congress refuse to confirm a justice because they want a more liberal ideologue? in that case, why should they confirm people like john ashcroft? why not try to force the president to nominate liberals in every instance where senate confirmation is required?

i suppose that would encourage more moderate nominations, but it would also encourage more stealth candidates-- people who lack a substantial record and thereby lack significant experience.

the solution is for the political parties to do a better job educating citizens about the consequences of elections. failing that, americans will get a dose of reality when they begin to lose rights that have been long taken for granted. hopefully we have reached that point and the pendelum will soon begin to swing back.

Michael C. Dorf said...

fyi, this was posted by neil buchanan, not me, though i'm always happy to take credit for other people's work.

Benjam said...

thanks and sorry neil.

i read today that when bork's confirmation was killed (after hearings), he had pariticipated in over 400 opinions and not a single one had been reversed by the court. on paper, his judicial record must have looked strong but in hearings he began to emerge as a reactionary thinker. perhaps we need to be careful about judging a judge based solely on his paper trail. for that reason, the hearings still seem important and also fair for the nominee to have an opportunity to explain his record. besides, wouldnt we miss listening to joe biden take 20 minutes to "ask" a question?

Tam said...

Benjamin, if anything, the forced withdrawal post private meeting is more of a 12(b)(6) than an SJ, because SJ's can go in the favor of either party whereas a 12(b)(6) always dismisses the case.

And not to be pedantic, but I really like the difference between the message that Congress would be sending with a 12(b)(6) versus an SJ, as I interpret it:

12(b)(6): "Pres, we can't even recognize this person as a candidate. Most third year law students, by virtue of being on a law journal, have published as much if not more work than your nominee."

SJ reject: "Well, at least you've got a candidate here, and maybe under a different Senate, you can get her through, but not under this one, no way Jose."

SJ confirm: "This candidate's in, no matter what, so can we just skip the charades?"

And then imagine the fun (I'm still being serious) with running statistical analyses on the number of 12(b)(6)'s versus SJ's, the composition of the Senate, etc., and what such analyses may (or may not) be able to tell us about Presidential cronyism, etc.

Sobek said...

For whatever reason, we still like to pretend that judges are apolitical, so we kind of have to pretend that the nominations process is apolitical, as well.

The problem could be avoided if the Supreme Court were more willing to let political questions be decided by politicians, but they won't, so they have to endure the confirmation charade.

Benjam said...


many lawyers and legal scholars do still pretend that justices are apolitical but political scientists quit that 20 years ago. i dont think anyone pretends that the confirmations process is apolitical but we do have a strong norm that the president is entitled to appoint justices from his or her side of the political spectrum.

a bit of work has been done in recent years (shippan & shannon) suggesting that a longer confirmation process results in more withdrawn nominees and others (cameron) have suggested that opponents of a nominee try to stall while the media digs up dirt in the hopes of a scandal. nasty stuff, i must say and i thoroughly agree that the hearings are a charade. still, who can deny that the thomas hearing were great theatre?

Tam said...

I am too young to remember the Thomas hearings (hehe), and don't otherwise know much about it, but in the context of this discussion, it's worth noting that he was confirmed by a vote of 52-48, so that is a situation where a pre-hearing vote would probably not apply.

Benjam said...

well, i was only three-years-old but i still remember it well. (heh) thomas got confirmed because of democrats like jim exxon and sam nunn, who was afraid to vote against a nominee from his home state. the interesting point is that anita hill finally agreed to testify at the last minute. had opponents of the confirmation not delayed, thomas' history of sexual harassment (and his taste in movies) would never have come to light. it supports the idea that opponents stall while the media digs dirt.

Sobek said...

I was technically old enough to remember the Thomas hearings, but too young and disinterested in politics to have paid attention. I vaguely remember that there were allegations being bandied about, but that was about it. I didn't start caring about politics until law school (when my wife got me hooked).

I submit that in the age of the internet, a prolonged hearing process is less and less necessary to allow for scandal, because small armies of fighting keyboardists are willing to comb every piece of data and pimp it to the media outlets of their choice, on a far wider scale than was possible during the Thomas hearings.

I think it's interesting that very few Senators have publicly articulated any kind of philosophy for the approval or rejection of judges. One of my pet peeves among conservatives is use of the label "judicial activist" without any principled attempt to define that phrase -- usually it just means "liberal," and that's hardly a sound justification for approving or rejecting anyone (unless you're Rush Limbaugh). During the Roberts and Alito hearings, liberal folks like Kennedy and Schumer complained that they were right-wing ideologues, but of course they had no objection to hard-core left wingers like Ginsburg and Breyer.

But again, because it's all just political theater, no Senator has any reason to go on record with an articulable standard, because s/he knows it will inevitably backfire when the White House changes hands. Anyone with any experience in the Senate knows that a paper trail can only hurt, never help.

My personal view is that (a) elections have consequences, and (b) only the ability to show legal reasoning and research are critical. Thus, although I disagree with Ginsburg almost every time, I freely concede that Clinton had every right to nominate her, and that she is indisputably qualified to sit as a judge. If only that same standard had applied to Bork...

PG said...

"(a) elections have consequences, and (b) only the ability to show legal reasoning and research are critical."


1) The notion of any federal judge, much less a Supreme Court Justice, doing his own research is ludicrous.

2) Merely because a result can be reached through some sort of legal reasoning does not mean that either the result or the reasoning is good and constitutional. I can reason that because the 14th Amendment does not actually mention race or any other category, there is no reason for me not to apply its requirements to any characteristic -- or conversely, for me not to declare it an "inkblot."
I can reason that because the First Amendment says "Congress shall make no law abridging the freedom of speech," that the laws requiring CIA approval for former employees' writings about their work are unconstitutional and CIA agents have a First Amendment right to shout national security secrets from the rooftops without fear of criminal liability. (Civil liability for breach of contract with the CIA is a different matter.)

In short, it's easy to "reason" to lots of stupid conclusions.

Sobek said...

"In short, it's easy to 'reason' to lots of stupid conclusions."

I agree, and Ginsburg re-convinces me of that on a frequent basis. But again, my opinion of whether her decisions are stupid is not the acid test of whether she is qualified as a judge.

Sobek said...

Please tell me, if you were a Senator, what would your test be?

PG said...


What are the stupid conclusions to which Ginsburg has frequently reasoned? (Please cite case names where possible.)

If I were a senator, I would vote to confirm judges whose judicial philosophy could encompass the results in Brown, Ollie's BBQ (but not Wickard nor Raich), VMI (but not Roe) and a few other cases, even if that philosophy led them to rule in future cases in ways with which I disagreed. I think some precedents are too fundamentally rooted in who the American people are today to be disregarded, especially those outcomes that read the Constitution as disallowing state-sponsored racism and sexism, and allowing Congress to pass laws that would combat those ills in the private sector when they have a nexus with interstate commerce, So Bork would be out, but Scalia would be in. McConnell would be in, though I'd make him squirm first.

Sobek said...


I don't have my copy of the most recent SCOTUS decisions, so I'm going to answer a slightly different question -- I was using Ginsburg as an example of a justice with whom I frequently disagree, and I want to substitute Breyer for my response.

I don't know if you've had a chance to read Breyer's book "Active Liberty." It's interesting and a quick read. He has a section in there on speech, including McConnell (but not Wisconsin Right to Life). I think Breyer reasoned himself into a bad decision in both cases. I'll be relying more on his book than on McConnell itself.

Breyer begins the book by distinguishing between passive liberty (the right to keep the government out of your affairs) and active liberty (the right to participate in government). A decision that emphasizes active liberty rests on three factors: (1) "it should be possible to trace without much difficulty a line of authority for the making of governmental decisions back to the people themselves" (p. 15), (2) "the people themselves should participate in government," (p. 15), and (3) "the people ... must have the capacity to exercise their democratic responsibilities" (p. 16). In shorthand, responsibility, participation and capacity.

As far as that goes, I agree completely with Justice Breyer. I just think most if not all of the examples of applications of these principles are logically untenable. Just as one example, his support for abortion rights easily contradicts all three principles, because (a) Roe contradicted the making of governmental decisions in at least 34 U.S. jurisdictions, (b) it stands for the proposition that the people are precluded fro legislating as they please except to the extent the Justices allow them, and (c) Breyer supports restrictions on information programs, like requiring ultrasounds and banning abortion clinic protests.

So it appears that his general principles get discarded at his convenience.

With reference to McCain-Feingold and the McConnell decision, Breyer starts by detailing the rapid growth of expenditures on campaign advertising over the past decade or so. As a result, a small number of people make the vast majority of political donations. The result is a concern that big-ticket donors have special access to politicians, and a corresponding loss of faith in the system. "That," he concludes, "is why legislatures have tried to regulate the size of campaign contributions" (p. 45). He doesn't mention that another reason is that restricting political speech tends to help immunize incumbents, like John McCain, from criticism during the most important part of the election cycle.

Having said all that, over the course of four paragraphs, Breyer claims that the constitutional question is not whether the legislation is desireable or wise, but whether it is compatible with the First Amendment. Nonsense. The only reason any of the fact Breyer cited about campaign spending was to persuade the reader that clamping down on that spending is both desireable and wise.

Applying his principles of active liberty, Breyer then argues that the First Amendment seeks "to facilitate a conversation among ordinary citizens that will encourage that will encourage their informed participation in the electoral process" (p. 46). But does McCain-Feingold actually do that? Of course not -- the sole purpose of the law is to limit speech by limiting the funding for speech, and in particular, speech that is critical of legislators like John McCain (unless said speech is too far out from an election to be very effective, or from grass-roots organizations that are usually too small to be effective).

In other words, in his zeal to correct the ills of corporate speech, Breyer's conclusion has the effect of immunizing legislators from legitimate criticism by those most likely to criticize most effectively. And at the same time, it does nothing to solve the problem he initially noted, because wealthy people still know how to get money to politicians -- just ask George Soros. Before McCain-Feingold, political contributions were dominated by the wealthiest individuals and corporations. After McCain-Feingold, they are dominated by the wealthiest individuals. This is supposed to make me feel more confident in the electoral process?

So Breyer reasons himself into what I will boldly call a "stupid" result, at the expense of his own principles of active liberty. The law was not passed by the people, it was passed by a career legislator in a seat so safe he may as well put it in his will. It restricts individual participation in government by impairing the power of collective advertising through corporate intermediaries (the only way someone like me could ever hope to be heard, byw), and by maximizing the influence of wealthy individuals with no corporate restrictions. And it hardly benefits the capacity of the citizens to make informed choices -- 527 groups exist to propagandize, not to inform. That may sound overly-cynical, but these groups are formed to get someone elected, not to educate the public.

I apologize to everyone for the length of this comment.

PG said...


Not having read Active Liberty (nor any other book by a judge on his general theory of jurisprudence), I can't say whether I'd agree with your summary Breyer's views therein. I can go to the opinions he's written and joined to see whether he reasons to a stupid conclusion in those.

Of course, we begin with a problem inasmuch as I don't find the idea that the First Amendment doesn't protect corporate speech, or protects it to a lesser extent than the speech of individuals and non-corporate organizations (which lack the legal advantages of corporations), to be a stupid conclusion to reach. It was reached by judges with an assortment of political views -- White, Brennan, Marshall and Rehnquist -- when they dissented in First National Bank of Boston v. Bellotti to uphold a state law that the majority said violated the First Amendment.

Contrast with that the idea that because corporations are citizens, they should be able to vote, which is the practice in Hong Kong's functional constitutuency elections, and which I do think in the U.S. would be a blatantly stupid conclusion to reach through reasoning from Supreme Court decisions on corporate personhood and state citizenship.

In short (too late!), I don't think we're going to be able to agree on what constitutes a "stupid" conclusion.

Sobek said...

Just a few quick points:

1. Breyer's views in Active Liberty are consistent with the decisions he joined in McConnell and Wisconsin Right to Life. He actually cites to McConnell in making his argument in Active Liberty.

2. Scalia makes the point well in Wisconsin Right to Life when he notes the irony that "the effect of the BCRA has been to concentrate more political power in the hands of the country's wealthiest individuals and their so-called 527 organizations, unregulated by s203. (In the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142 million to 527s)." To the extent Breyer thinks he is actually upholding his views of active liberty by muzzling speech, he is seriously deluded.

3. The distinction between commercial and non-commercial speech is untenable, in light of the fact that much of the most obviously protected speech in America is done through corporations, like for exmple the New York Times.

It has been argued that big corporations like Nike don't need First Amendment protection, for example, to defend themselves from claims that they run sweatshops, because they are Nike -- a multi-million dollar organization with more than enough money to defend against private lawsuits. But of course the same can be said of the New York Times.

Contrast these two examples with a small town newspaper, and a bicycle repair shop. Neither of them has the financial resources to defend against protracted and vigorous litigation. The commercial/non-commercial speech distinction assumes that the Times is more analogous to the small town newspaper than to Nike. That makes no sense when considering statutes designed to stifle speech, because the real-world consequence of such a statute is the effect on financial ability to defend against lawsuits.

And McCain's ham-fisted Incumbency Protection Act doesn't make the distinction, either. Assuming, arguendo, that there is a danger in corporations using general funds for political speech -- because investors maybe like the company but not the message -- McCain-Feingold ignores the fact that (a) I won't be more likely to approve of the political speech 120 days out from an election than 20 days out, (b) I can always sell my stock and invest somewhere I'm more comfortable, and, most importantly, (c) the statute doesn't make any distinction for corporations like Wisconsin Right to Life, which exists solely for political purposes.

Sobek said...

Also, I agree with you completely on this:

"...I don't think we're going to be able to agree on what constitutes a 'stupid' conclusion."

That's precisely why my standard for accepting nominees is so lax. The first premise -- that elections have consequences -- is key because people know when they vote for a president that the president (not the Senate) gets to pick the judges. This is increasingly true as the nominations process and judicial opinion-making become more politicized and publicized. A correllary of that first premise is that the Senate does not get to pick the judges, and so my personal policy preferences (were I a Senator) would have nothing to do with qualifications.

PG said...

1) I'm not sure what Scalia means by political power becoming more concentrated in wealthy individuals because they promote *their* views (as distinct from the views or promotion of a particular candidate). That speech could be helpful to a candidate, or it could end up being detrimental to him if voters don't like nasty attacks on the opposition and punish the candidate for them. But it's speech attributable to the individual -- indeed, both Swift Boats and MoveOn got in trouble for coordinating with campaigns. Paying for a bilboard that says, "I want a Department of Peace" is *my* speech, my message. Giving $2000 to Kucinich no longer is speech; it's just money I'm giving him in hopes he'll get elected. (And maybe in hopes that he'll remember me fondly when he's in the White House.)

2) The NYT is covered by freedom of the press, not by freedom of speech. If Nike wants to set up a press (as I heard the NRA did), it would be covered by a different set of precedents. Incidentally, while your estimate of the NYT's current financial ability to defend against defamation lawsuits may be accurate, it certainly was more in question during the civil rights era, when there were nearly $300 million in libel actions outstanding against news organizations because of their reporting in Southern states. Sullivan alone won half a million in damages. I would be surprised if Nike ever faced such a concentrated attack on its speech. The usual argument for treating commercial speech differently is the concern about fraud; if we allowed commercial entities to be negligent speakers, consumers frequently would be misled more often than they already are, even with FTC protections.

3) I don't really get this "Incumbency Protection" claim about McCain-Feingold. Yes, an incumbent begins with a recognition advantage because he ran in a previous election and has been the voters' representative. That means that a challenger has to work harder to get her name out, meet voters, criticize the incumbent (an advantage to challengers). I don't think this is some horrible defect in our system, inasmuch as we can't wipe voters' memories to start the two candidates out on perfect equality.

4) Without significant Senate advice and consent, presidents would nominate people with whose policy preferences they would not necessarily want to be identified politically. After all, it would be odd if Bush I had been well known for *both* pushing the ADA and supporting a judge who said the ADA was an unconstitutional exercise of the interstate commerce power. Presidents aren't really that closely identified with what their judges rule, particularly because the most important judicial decisions often can come after the president who nominated the judge has left office.

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