Friday, November 30, 2007

Eisgruber Respondeth

For everyone wondering how Chris Eisgruber would respond to my question whether a tendency to defer to institutional settlements could really be cabined off from ideological values as "procedural," wait no longer. Chris said that while deference to institutional settlements is part of what makes a Justice "moderate" along the procedural dimension, the procedural value on which he principally relies is "open-mindedness" towards new claims of justice. I'm all for that too, but I should say that this too can be characterized as an ideological position. Self-styled originalists, after all, might say that it's the job of the Court to enforce the old Constitution and for the political branches to be open-minded towards new justice claims. In the end, my mild skepticism may boil down to the sort of skepticism one often sees towards all process-based theories. Think here of the criticism by Larry Tribe of John Ely's process theory.

One further thought on Eisgruber's proposal for moderate Justices. The best way to achieve this would probably be a structural mechanism, such as a requirement of super-majority confirmation. We have a de facto version of that in the possibility of a filibuster of judicial nominees, but the threat of the "nuclear option" doing away with the filibuster is powerful. Thus, even though Justice Alito received fewer than 60 votes to confirm in the Senate, some of the Senators who ultimately voted against confirmation had earlier voted for cloture. Whether the Republicans would have "gone nuclear" if the Democrats had held fast and filibustered is not clear, but the very possibility may have had a chilling effect, and explains why we do not have a strong de facto super-majority requirement. Getting a real super-majority requirement for confirmation would require a constitutional amendment, which may explain why Eisgruber doesn't advocate it (as such an amendment would be extraordinarily difficult to enact).

Posted by Mike Dorf

16 comments:

Sobek said...

The Amendment, coming at this time, would be highly suspect considering the last four judicial picks. Clinton nominated two well-known, extremely liberal justices, both of whom were approved by overwhelming numbers in the Senate -- not because the Republicans didn't know who Ginsburg and Breyer were, but because they knew who America had voted for. Their ideological extremity was not viewed as a bar against their confirmability.

Then GWB nominated Roberts and Alito, and the rules of the game suddenly changed, in at least two ways. First, the notion that the guy who wins the election gets to pick the judges went out the window. Second, justices who are in the mainstream of a major political party were suddenly tarred as outside the mainstream of America (as though about 50% of Americans could possibly be outside the mainstream).

My problem with Eisgruber's thesis is that it assumes some kind of accepted definition of ideological moderation. I can't imagine any definition of "moderate" that accepts Ruth Bader Ginsburg as mainstream but rejects John Roberts as an extremist, other than a definition that changes based on the justice being considered at any one time (and the individual Senator trying to get face-time in front of a camera) -- which of course is no definition at all.

egarber said...

Then GWB nominated Roberts and Alito, and the rules of the game suddenly changed, in at least two ways. First, the notion that the guy who wins the election gets to pick the judges went out the window.

It's a big stretch -- I'd even say it's false -- to say the general rules changed in the judicial appointment game. Overall, Dems have worked dilligently to approve W's lower court appointments. You see, they had to -- given that Republicans blocked so many Clinton nominations, creating what even Rehnquist called a vacancy crisis.

From a CNN story back in the 90's:

Chief Justice William Rehnquist, a prominent conservative, severely rebuked the GOP-controlled Senate Judiciary Committee for holding up federal judicial nominations made by Clinton.

Administration officials have barely been able to hide their glee that it is a conservative chief justice seemingly siding with the president.


So back then, the guy who won the election couldn't even get judges out of committee -- meaning that Helms, et al, were severely hampering the democratic process. At least with filibusters, the process is out in the open, with the full senate weighing in (and voters seeing it).

Sobek said...

"It's a big stretch -- I'd even say it's false -- to say the general rules changed in the judicial appointment game."

I need to modify my statement, but not really in the sense you mean. The rules did not change in any technical sense -- the nuclear option was threatened but never exercised.

What I mean is that the notion that the winner gets to pick the judges went soundly out the window. The overwhemling confirmation votes for overwhelmingly liberal nominations belies any notion that only moderates (or usually moderates) are good candidates, and makes posturing by Reid, Kennedy et al. concerning ordinary conservatives as far out of the mainstream look like the partisan hackishness it really is.

"Overall, Dems have worked dilligently to approve W's lower court appointments."

Well, not really. When the Republicans controlled the Senate, it wasn't a case of Dems diligently working towards anything. The Republicans had the votes, but they couldn't beat a filibuster. Dems made matters worse by (for example) tarring Judge Pickering as a racist, regardless of his endorsement by the NAACP. Now the Dems control the Senate, and a nomination fight would look very different, but for most of Bush's administration it was not a question of whether the Dems were working diligently.

That's what I'm talking about here. Not a simple yes or no vote -- I'm not suggesting the confirmation process become an empty ceremony. I'm talking about calling moderate Republicans raving right-wing lunatics. Eisgruber's argument is simply worthless if it turns on "moderation," but proposes no workable definition of moderation.

What Helms (I thought it was Hatch -- are you sure on that?) did is by no means consistent with my belief that the winner gets to pick the judges, but neither does it contradict my argument. The Clinton-era Republicans has enough votes to keep the nominees locked up in committee indefinitely, and didn't have to bother challenging anyone's "moderate" status.

egarber said...
This comment has been removed by the author.
egarber said...

not because the Republicans didn't know who Ginsburg and Breyer were, but because they knew who America had voted for. Their ideological extremity was not viewed as a bar against their confirmability.

Why do you assume those justices reflect “ideological extremity”? Compared to what – the baseline established by the Heritage Foundation?

As an example, let’s look at Roe. Not that I’m big on polls, but they do consistently show that Americans favor by 60-70% keeping Roe on the books. And further, 5 of the 7 justices who decided Roe in the first place were Republican appointments. You *could* argue the other way – that Republicans used to be in the mainstream on judicial philosophy (they were the Roe majority, after all), but later went hard right.


Second, justices who are in the mainstream of a major political party were suddenly tarred as outside the mainstream of America (as though about 50% of Americans could possibly be outside the mainstream).

Just because 50% vote for a president, that doesn’t translate into guaranteed approval for all decisions. Did 50+% of Americans support the Terri Schiavo GOP actions, simply because Republicans won the 04 election? Did 50+% support social security privatization? In other words, there’s a logical flaw in thinking it’s not possible for an elected leader to leave the mainstream.

In fact, it’s fairly evident that one reason Republicans win is that they fire up the base by speaking in specific ways about judicial appointments. That appeal is directed to a far smaller portion of the voter population than 50% -- my thinking is that evangelicals and ultra conservatives probably make up 25-30% of the population at most.

The overwhemling confirmation votes for overwhelmingly liberal nominations belies any notion that only moderates (or usually moderates) are good candidates,

"Overwhelmingly liberal" by what standard? American voters have a relatively high opinion of the Supreme Court. So it wouldn’t seem the court is out of society’s mainstream in upholding "liberal" precedents.

I think it’s also significant to examine your argument in the context of precedent. With Ginsburg and Breyer, there was little risk that stare decisis would face a frontal assault like that which was feared with Roberts and Alito. Democrats thought precedent and established law were worth fighting for, I think.

What Helms (I thought it was Hatch -- are you sure on that?) did is by no means consistent with my belief that the winner gets to pick the judges,

Helms was a major player in all of that. But you are correct: Hatch was involved as well.

Sobek said...

"Why do you assume those justices reflect 'ideological extremity'?"

The fact that you have to ask the question tends to prove my point: that moderation and extremity are not self-defining concepts.

And the reason I assume the represent the ideological extremity is because of their voting patterns. Pick any hot-button political topic in America, and you are virtually guaranteed to know how those two (as well as Souter, Scalia and Thomas) will vote on it. Gays in the military? GBS will vote for it. Death penalty? GBS will vote against it. Abortion rights? GBS will vote for them. Affirmative action? GBS will vote for it.

Do you have any serious doubts that GB&S haven't already made up their minds on the D.C. gun case? Or the Kentucky death penalty case? I have no such doubts, because they have convinced me through long experience of how they think and what results they prefer.

Note that I'm not suggesting this phenomenon is unique to the liberals. I know how Scalia and Thomas will vote, too. I am increasingly confident that I can predict how Alito and Roberts will vote.

"And further, 5 of the 7 justices who decided Roe in the first place were Republican appointments."

Three of the five were Nixon appointments. Powell was nominated because he was old and couldn't leave a lasting impact on the Court, and to facilitate the Rehnquist nomination. Blackmun was badgered by Brennan into writing the opinion Brennan was too much of a coward to write. Burger's vote was inexplicable, but no one ever accused him of being terribly analytical or philosophically consistent.

More importantly, I submit that before 1973, abortion rights (which hadn't been invented yet) were simply not on anyone's radar screen in the appointment or confirmation process.

"Just because 50% vote for a president, that doesn’t translate into guaranteed approval for all decisions."

I know it well. I've basically started counting down the days to January 20, 2009 along with the Democrats. Still, in addition to close presidential votes, the Senate and House are about evenly split, in spite of a resounding Dem victory in 2006.

"In other words, there’s a logical flaw in thinking it’s not possible for an elected leader to leave the mainstream."

I'm talking more about party platform than any individual politician. The fact that the Republican party espouses fairly consistent views, and remains a viable political party, is of itself an indication of the views of its members. Obviously I'm speaking in generalities, but useful ones, I think.

"Democrats thought precedent and established law were worth fighting for, I think."

Some established laws, anyway. No liberal cried about stare decisis after Lawrence v. Texas, because the conservatives wrote that one. Just as no conservative complained about Gonzales v. Carhart, because conservatives wrote it.

egarber said...

Some established laws, anyway. No liberal cried about stare decisis after Lawrence v. Texas, because the conservatives wrote that one.



I actually think Lawrence appropriately applied the existing privacy / equal protection precedents. Roe and Griswold had each been affirmed many times (recall Specter holding up his super-precedent charts), and so (imo) it made sense to find that Bowers was misguided.

With Roberts and Alito, the fear was that they might blow holes through that foundation, along with others that have been fortified -- church / state separation, issues of federalism, commerce power, etc. It seems reasonable to me that Dems might think these norms were at risk.

Sobek said...

"...and so (imo) it made sense to find that Bowers was misguided."

When you have a general precedent and a specific precedent, you can't really claim to uphold stare decisis by rejecting the latter in favor of the former.

I'm also reminded of a women's rights case (I don't remember which; I can look it up if you like) pending while everyone thought the Equal Rights Amendment would pass. Brennan tried to persuade the other justices to apply strict scrutiny to gender cases. The moderates said it would make more sense to let the amendment pass. Brennan was very upset. He was more than willing to toss precedent to get his preferred result.

egarber said...

When you have a general precedent and a specific precedent, you can't really claim to uphold stare decisis by rejecting the latter in favor of the former.

Point taken. I'm not necessarily making a strict stare decisis argument. I simply think it was an appropriate correction of where Bowers had originally missed the boat.

In my view, Lawrence was based on predominant contemporary law, unlike say, a justice over-ruling Roe at this point.

Sobek said...

"In my view, Lawrence was based on predominant contemporary law, unlike say, a justice over-ruling Roe at this point."

Roe was based on predominant, (then) contemporary medicine, which has since changed significantly. According to The Brethren, even in 1973 some of the justices were worried that the trimester approach would be undermined as fetal medicine advanced (how odd that they would "worry" about medicine improving). And it has changed, and viability is continually getting pushed back. Simultaneously, our knowledge of fetal monitoring and development is improving.

If Bowers was based on bad law, and subject to being overruled on that basis, then the same holds true for a case based on bad medicine.

I didn't mean to turn this thread into a discussion of specific cases. My original point was that insisting on judicial moderation is a pointless exercise without some kind of definition of moderation. Does it mean following polls? Does it mean institutional deference? Can any definition that insists John Roberts is an extremist also defend Ruth Ginsburg as a moderate?

And for the record, much as it might sound like I'm attacking Ginsburg or Brennan, I won't deny that they both are/were qualified for the job. Clearly Ginsburg was and is qualified. And I prefer Ginsburg's consistency (even when consistently liberal) far more than vacillation by O'Connor, Kennedy and Stevens. Predictability is a key to law, and I don't know how any attorney can advise a client when the meaning or enforceability of a given law depends on Kennedy's mood on a given day.

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