Friday, April 23, 2010

Could the Supreme Court Go Extinct?

By Mike Dorf

There is a longstanding debate about to what extent Senators may vote against an otherwise professionally qualified Supreme Court (or other judicial) nominee based on disagreement with that nominee's judicial philosophy or ideology.  At some level, of course, the answer is that Senators can vote however they want on such matters, constrained only by politics.  But in practice there was, until relatively recently, a debate that pitted the following two positions:

1) The only legitimate grounds for opposing a nominee are professional qualifications.  Under this view, the President gets to pick Justices who share his views about the law and even Senators who hold quite different views must then vote to confirm, absent such disqualifications as incompetence or lack of judicial temperament.


2) Senators are entitled to vote against an otherwise professionally qualified nominee where that nominee holds ideologically "extreme" views.  Under this view, a President gets some deference so that a moderately liberal (or moderately conservative) Senator will vote to confirm a moderately conservative (or moderately liberal) nominee.  However, there is a point beyond which a Senator need not go.

It was fun to watch Senators switch between positions 1) and 2) depending on who the President was but at least we knew the range of acceptable views.  As a practical matter, other things being equal, a President whose party controlled the Senate would have an easier time getting a nominee to his liking through.  Other things weren't always equal, of course, and all sorts of political factors complicated appointment politics, but the broad pattern made sense.

Lately, however, we have seen the emergence of another position, namely:

3) A Senator is entitled to vote against any nominee who doesn't share his judicial philosophy.  Moreover, disagreement with a nominee's judicial philosophy is a sufficient basis for voting against cloture as well as the merits.

Position 3 isn't yet fully acceptable and it doesn't usually get explicitly defended.  That's why Senators who deploy Position 3 will often try to characterize a nominee they wish to oppose as not merely holding ideologically distinct views but as ideologically extreme.  I.e., Senators who take Position 3 feel the need to defend their actions by reference to Position 2 (just as a generation ago, Senators who took Position 2 sometimes characterized their objection to a nominee's extreme views as a matter of professional qualifications, because a generation ago Position 2 wasn't yet fully accepted, so it had to be shoehorned into Position 1).

If, over time, Position 3 becomes the dominant view, we will have a recipe for gridlock whenever the President's party has fewer than 60 seats in the Senate.  The party opposing the President will simply refuse to confirm anyone who holds views of which they disapprove.  Meanwhile, the President will have no reason to cave.  In the extreme, this would lead to an equilibrium of no confirmations at all, and eventually the Supreme Court would go extinct.

That's an absurd result, of course.  In practice, the President and the opposing party in the Senate will battle it out politically.  And one might even expect that the legitimation of Position 3 would lead to a stable compromise in which Presidents of both parties typically name middle-of-the-roaders, except when they have large majorities in the Senate.  But this seems unlikely, not least because increased polarization (at least among the party activists who care intensely about judicial nominations) will make a true middle-of-the-roader look like an extremist to both sides.  Note how much of the left is intensely disappointed in Pres. Obama while much of the right thinks he's a radical socialist.  Or note how liberals think Justice Kennedy is deeply conservative with a few occasional surprises while conservatives regard him as a traitor to the cause.  I'm not saying either side is "objectively" wrong, but it's pretty clear that both Obama and Kennedy are fairly close to the center of public opinion.

What lessons should we draw?  First, if Dems want a liberal on the Supreme Court, it's now or never.  Actually, maybe it was a year ago or never, as the Maine Senators have lately shown themselves not especially willing to play ball, whereas a year ago it was possible to get to 60 without them.  If Obama gets another vacancy next year, he'll likely have even fewer Democratic Senators to work with.

Second, it would be very unhealthy in the long run for Position 3 to become legitimate.

And third, all of these factors will combine to make for more basically dishonest confirmation hearings.  Senators who hold Position 3 will pretend to hold Position 2 and therefore will try to portray any nominee from the other party as an extremist.  The nominee in turn will have to do her best to come across as bland and inoffensive, backing off from any prior statements or opinions (in the case of a judge) that could be construed as saying anything other than "I just follow the law."

Here's hoping I've gotten it wrong somehow.


Paul Scott said...

My feeling is that the President wields nearly unlimited political power in this realm if he chooses to not compromise.

Every act the President takes on this (and all other appointments if he makes a big deal about them) is proactive. The President does something. He states there is a position to be filled and I have found the right person for the job.

The Senate, however, only has the power to say "No." This is not like legislation where, even while really just saying "No" to everything, a Senator or a party can appear to be offering other solutions.

Let a full term go by where the President has nominated one or more persons to fill the job and the Senate keeps rejecting them (or more likely, since an actual vote would result in confirmation, it is just a single nomination on which the Senate refuses to vote).

I see that as a politically impossible position. A President who chooses to win this fight will always win it. The party really willing to put everything on the line to block a nomination that a President refuses to withdraw will take large hits at the next election.

Hank Morgan said...

I agree with your lamentation on the deterioration of the Supreme Court confirmation process. I think you are insufficiently critical of President Obama, who was instrumental in validating position number 3 during the Alito confirmation. Obama didn't just vote against Alito, but he also joined an attempt to filibuster the nomination, and he publicly defended this position largely on the grounds of simple disagreement with Alito's judicial philosophy. See his speech here:

That speech doesn't paint Alito as an extremist; rather, it openly defends the idea that a Senator can oppose a nominee (implicitly including voting against cloture) simply because of disagreement with the nominee's judicial philosophy. And, of course, Obama didn't suffer politically for his position. He's now got the job that every Senator wants. I think the argument could be made that Obama, more than any other individual Senator in the last five years, has contributed to the problems in the confirmation process that you identify in your post.

Michael C. Dorf said...

1) Paul: I think much depends on the politics of the situation, but the President can lose. The Republicans won by holding out against Johnson's nomination of Fortas and ended up flipping two seats. Nixon lost showdowns over Haynsworth and Carswell. Reagan lost on Bork. In both instances the Dems got a Justice more to their liking (Blackmun and Kennedy, respectively). Bush II lost against his own party on Harriet Miers.

2) Hank: I was trying to stay above the fray. As you'll note, I didn't criticize ANY particular Senator or President by name.

Michael Yuri said...

I've been thinking about this lately in relation to the idea of judges being within the "mainstream" and I have a theory that might explain the shift you describe.

There's been a lot of talk about increased polarization in American politics, and it seems reasonable to suppose that a similar polarization has taken place in the legal academy/judiciary.

Perhaps, a generation ago, if you were to plot the ideologies of legal intellectuals on a simple left-right graph, you would have found something like a standard bell curve. In that case, while there might have been a substantial difference in the median position of "liberal" and "conservative" legal thinkers, it would still be possible to define a legal "mainstream" by reference to the normal distribution.

But, as the population became more polarized, the graph shifted toward a bimodal distribution. With well-defined liberal and conservative clusters, but relatively fewer people occupying the space in the middle.

With such a distribution, the concept of a legal "mainstream" doesn't make as much sense. Rather, we now have two separate mainstreams, and someone may be well within the "liberal mainstream" yet far outside the "conservative mainstream," or vice versa.

If that's the case, then the slip from your position 2 to position 3 seems almost inevitable.

Paul Scott said...

Bork to me represents a few things. Firstly, perhaps most importantly, he as a nominee directly asserted the validity of your position 3. I remember his confirmation hearing and thought, if nothing else, his frankness and directness were refreshing. It drew a sharp contrast at the time to the manner in which he was questioned by Senator Kennedy and also was a sharp contrast to the sorts of answer given later by now Justice Kennedy (and every other judicial nominee since).

I am glad, in retrospect, that Kennedy and not Bork ended up on the court, but I do wish all nominees would be as honest as Bork in their hearing. OTOH, his 60-40 (or somewhere close) defeat might have been the lesson taken about honesty and directness in confirmations.

Secondly, I think Bork's situation serves to highlight my prior point. Regan chose to lose. He could have simply put up another strongly right-wing nominee. How long do you think the American public would put up with the Senate repeatedly refusing to confirm clearly qualified, but ideologically (to the Senate) unfavorable nominees? I don't think for very long. Sure, both parties could spin each nominee as either middle-of-the-road or "radically wrong for America" - but at the end of the day the President would be taking proactive moves of putting forward clearly qualified nominees and the Senate would have to keep rejecting them. I just don't see how a determined President loses that fight.

Certainly, as your list shows, they often choose to lose. Maybe there are political realities of which I cannot account, but for a President it looks very simple to me. Keep nominating people you want and eventually the Senate will have to give in. OK, I certainly agree you might not be able to get your "first pick" - but that doesn't mean that if you want a Bork you have to settle for a Kennedy.

Also, seeing that list reminds me of just how effective Bush II was at getting through what he wanted even with no control of either House. I can't help but think we would be better off today with Miers instead of Alito. If that was an intentional loss to make the Alito nomination more likely to succeed...

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