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Edith Jones on the Confirmation Process:

In a recent symposium published in the Richmond Law Review (available on Westlaw), Edith Jones commented on the judicial confirmation process:

These observations would not be complete without some prediction of what the future will bring or some prescription to resolve the current impasse. In a previous article, I concluded that:

The problems of judicial selection, in my view, are not so much a cause as a symptom of the deeper division in views as to what constitutes the rule of law. If the purpose of law, broadly speaking, is to effectuate political change, then, clearly, judges are political actors who must be accountable to the public like other politicians. If, on the other hand, the principal role of judges is to interpret existing law, while changes of legal policy are within the province of the executive and legislative branches of government, then judges have a more limited, though still essential, role in democratic government. For much of the twentieth century, mandarins of the law viewed the courts as agents of social change and the law as contingent, evolutionary, and ultimately subservient to political expediency. Federal judges long ago caught on to this heightened view of their power, and it was inevitable that state judges would do the same. As judge-made law became more involved in politically sensitive areas, the appointing authorities reacted accordingly. The politicization of selection processes followed the politicization of judicial decision-making, which in turn followed twentieth century currents of judicial philosophy. Today's "ethics" of judicial selection recognizes the politicization of the judges' role.

The restoration of more civil and objective selection processes will not occur until the reigning legal philosophy becomes less ambitious and overweening. That is to say, when the rule of law is again tethered to respect for the executive and legislative branches of government; to traditional legal craftsmanship, to continuity, to moral values; and to limited social aims, judicial selection will not provoke such battles. Philosophical change of this dimension often takes decades to mature and influence society's thinking.

Three years later, my diagnosis of the root problem and the timeline for its ultimate solution remain the same. The prospect for a short-term remedy to the politicized judicial confirmation process is grim, however, barring a decisive change of personnel or rules in the Senate. The indiscriminate use of the filibuster and the resort to public character assassination in hearings are reminiscent of tactics employed fifty years ago by southern senators and Joseph McCarthy to achieve their ends. We now know, of course, that those tactics represented the dying gasp of doomed movements. Politicizing the selection of federal judges ought to share the same fate.

As Ribstein notes, surely there is demonstrable social value in nominating someone to the bench with deep judicial experience and a well-developed judicial philosophy.

Larry (mail):
Her comments sound more like a political diatribe then something that should be coming from a judge (yet alone a Supreme Court justice.) Most of what she says can be categorized into either "pick me" (e.g. the parts about "respect" for the executive branch) or platitudes (law being "tethered" to moral values). Maybe if she wanted to seriously discuss natural law theory, she could be respected, but to play to non-lawyers like that is unpardonable. But, maybe the lay people have something to say about this.

As to analogizing nomination hearings to the McCarthy hearings, it is difficult to see how one relates to the other, but maybe the original poster can provide some details. After all, even a rejected nominee will be able to secure employment. Indeed, Miguel Estrada probably makes more now than he would as a judge. I think this might be political rhetoric, which is strange because I am not used to political rhetoric coming from lawyers.

As for myself, I have been directly involved in the confirmation of five federal judges. All of them were confirmed with overwhelming majorities. Their tricks: don't act like a political nut. Act like a lawyer. Be classy.

Most nominees are completely acceptable. There is plenty of room for disagreement, and most of the time the SJC will overlook advocacy on behalf of a client. But, lets face it, when a lawyer starts to act like a politician, there is a well-founded fear that this person is just a political hack.

Considering that the filibuster has been used very few times and the vast majority of nominees have been confirmed (after nomination by president of either party), and that in each use reasons have been given as to why a particular nominee is not acceptable, I think that the word "indiscriminate" is something that is meant to play to those who, for some reason chose not to go to law school.
7.5.2005 10:00am
thedaddy (mail):
Larry --
If someone with your twitchy thought process is involved with successfully getting judges confirmed with "tricks" we are doomed.

Going to law school is no big deal, slip and fall lawyers are a dime a dozen and they all went to law school.

Get a life.
7.5.2005 10:14am
Larry (mail) (www):
Have you ever been a "slip and fall" lawyer? Have you ever tried a case?

Or are you just talking about things that you don't know about.

In my practice, people with clerkships for "prestigious" judges might be described as a "dime a dozen." The area of practice someone chooses doesn't make them any more or less smart than someone in another area. Anyway, upon further reflection, your point just isn't clear.

Some people seem to think that the multitudes of confirmed judges did something special to get confirmed. They didn't. They just acted responsibly and didn't think of themselves as politicians. If this is a "trick" so be it. (I guess you could say that "not drinking" is the "trick" to avoiding getting arrested for DUI, too.)

Finally by saying "Get a life" I get the impression that you think that insulting people is a way to convey ideas. Please correct me if I am wrong.
7.5.2005 10:30am
Michael @ CIR (mail):
Larry,

Is it your view that Miguel Estrada did not act like a lawyer, but rather like a "political nut"? If so, what actions of his are you referring to?
7.5.2005 10:57am
Larry (mail):
In my view three things doomed Estrada's nomination:

1) His murky activity in screening clerks for AMK -- he could have explained exactly what he did and why he was doing what he was doing, but he didn't. To me, it seemed like he was trying to ideologically screen clerks for political reasons.

2) His complete lack of scholarly publications. (I think that he was right to assert that he need not disclose memos he wrong while at the SG's office.) Since he has no judicial record to look at, effectively, this Estrada (while undoubtably smart) never seems to have written anything that was not written with the interests of a particular client in mind. If he had served as a professor or judge, or just written 7 or 8 law review articles, he could have rectified this.

3) Circumstantial evidence (e.g. statements from Paul Bender) regarding his tendency to be "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way." Likewise, it is well-known that Estrada is "friends" with many people in the administration. Now, of course, Mr. Bender might be wrong, and friendships with people in the administration don't make one stupid (at least I hope not), but in view of the first two concerns, he did nothing to try to rebut inference that he was an ideologue (and a sneaky one at that.)

If it will make you (or Mr. Estrada) feel better, I would have no problem with his nomination in the future if he would show that he can think independently.
7.5.2005 11:06am
Anonymous jim (www):
So a "discriminate" use of the filibuster is constitutional? Someone please tell Prof. Zywicki.
7.5.2005 11:08am
LArry (mail) (www):
Heck, even indiscriminate use of filibusters is constitutional. Perhaps it is politically unwise, but there is nothing to stop the Congress from making its own rules, and giving consent, say, only on the basis of 95 senators agreeing. I am not sure if Zywicki is a scholar of Senate rules or not.
7.5.2005 11:10am
Michael B (mail):
Yet, Larry, you can't imagine how resorting to public character assassination in hearings is reminiscent of tactics employed fifty years ago by McCarthy. After all, they can still find employment, ergo, tut-tut.
7.5.2005 11:42am
Larry (mail):
Correct. Nominees don't have to be nominees. They don't have to be judges. In fact, for the most part none of the nominees have been derided as untrustworthy or unethical or lacking in character. Anyway, all my friends sailed though, so I don't have much sympathy for people who confuse politics and law.
7.5.2005 11:45am
Michael B (mail):
An acutely unobservant or unaware formalism. Me thinks Bork and Thomas would have different observations entirely.
7.5.2005 12:28pm
Steve:
Funny, I don't remember hearing a lot about "the demonstrable social value in nominating someone to the bench with deep judicial experience and a well-developed judicial philosophy" when Justice Thomas was the nominee.

Justice Thomas was surely not the first Justice to be nominated on the basis of ideology; but his lack of an impressive resume made it impossible to argue that the nomination was about anything other than ideology. With a nominee like Bork, on the other hand, defenders could always claim the nomination was about his distinguished record rather than this ideology.

Once ideology is "in play" in the nomination process, it makes little sense to argue that the President should be able to nominate an individual on the basis of ideology, but that the Senate cannot take ideology into account. As we speak, conservative interest groups are lobbying the President to choose a nominee with a particular ideology; and if that happens, those same groups will loudly claim that the Senate has no right to demand answers to questions about ideology. Under a Democratic administration, the roles would undoubtedly be reversed. There is no right or wrong about it; there is only politics.
7.5.2005 1:00pm
WB:
I think that the real "trick" is not to be nominated for an appellate judgeship, especially not the DC Circuit.
7.5.2005 1:06pm
Bob Flynn (mail):
The dynamics are fairly simple. Dems want a left-leaning justice in the mold of Ginsberg and Breyer -- a fairly reliable vote for pet causes (pro-affirmative action, anti-2nd Amendment, anti-Federalism, certainly anti-Bush v. Gore! etc, etc).

The best way to accomplish this is ...win the White House. But Dems have been unsuccessful as of late.

So, now, the silent mantra is "Save Roe v. Wade." That's it. That's the only issue. It is the sine qua non of this battle. Sure, they would rather not have another right-winger on the court, but that battle is lost.

That's why you get all this fawning praise of O'Connor. You didn't hear much of this praise when she and Kennedy provided the swing votes on Bush v Gore, right? Of course, not.

That's why Gonzalez is suddenly a strongly viable option -- he's seen as a potential Souter or Kennedy. True, he was villified as a torture enabler during his AG nomination, but, that's not nearly as important as saving Roe.

In fact, if the President nominated the judicial equivalent of, say, Nat Hentoff, (a liberal on most issues, except abortion), the nominee will still be opposed. Bank on it.
7.5.2005 1:08pm
Larry (mail):
Bob, Can you be specific about how the Democrats want an "anti-second amendment judges." Since the 2d amendment has never come before the court during the time that any of the current justices were on the bench, I think that maybe you are engaged in political rhetoric.

Likewise, I fail to see how you think that Democrats want an "anti-Federalist" judge. If anyone has taken a position "against" Federalism (, it has been the current administration (which is Republican) which has consistently asserted the supremacy of federal power in court and politically e.g. Raich, gay marriage, tort reform). Not that this is a bad thing.

I find it somewhat ironic that you state that the Democrats want a pro-affirmative action judge (if that is possible) and an anti-federalism one. Does this mean that the Republicans want the converse. Since affirmative action is generally a state action (that is, states give preferences to lesser-qualified minorities over lesser-qualified white boys), why do you assume that the Republicans want to not defer to the states' own interpretation of the constitution.

You would really need to provide specifics to be taken seriously.
7.5.2005 1:19pm
Bob Flynn (mail):
Larry,

As my mother used to say at Thanksgiving, "Don't focus on the condiments, focus on the turkey!"

Your slightly snarky post offers trivial criticisms at the edges, but ignores the central (non remarkable question); namely, Is the primary focus of Dem opposition to any Bush nominee, the fact that s/he won't commit a priori to upholding Roe v. Wade, or not?

BTW, I love your criticisms of Miguel Estrada above, particularly "complete lack of scholarly publication." By this standard, you were a big supporter of Professor/SolicitorGeneral/Judge Robert Bork -- scholar par excellence, no?
7.5.2005 2:04pm
Larry (mail) (www):
Bob,

I wasn't a lawyer when Bork was subject being grilled, so I didn't have the time to throughly research him at the time. I think some of the criticism of him was unfair -- i.e. his musings that the first amendment only applied to political speech were somewhat out of context -- but he definitely provided the SJC, the Senate, and all Americans with some indication of how he thinks when not working for a client. Therefore, he surpasses the first hurdle. I have read a couple of his books and I think that he is a bit of a hypocrite (not so much for legal reasons, but for social reasons), but I don't know if that should preclude him from being confirmed. Whatever the case, there is a lot more to work with and to have an honest debate about whether he is a political hack or an intellectually honest scholar.

As to Roe (or Casey), a lot of people who matter think that Roe serves a good political purpose: keeping the "left" energized in the fear that it somehow would be overruled, and the right "energized" out of some strange hatred of it. Personally, I don't care one way or the other, as I know that people in my social class will always have ready access to abortions. Always.

Doctrinally, some also think that too narrow a construction of un-enumerated rights will lead to a rollback of one's right to "homeschool" your kid (a right which I, personally, don't like, as only nuts do this) or some other religious-type liberties. To this end, most people, I think, are quite interested in knowing where a nominee stands on un-unemerated rights or whether only what is specifically mentioned in the constitution should be protected. (Even though there is a textualist argument that abortion is protected by the constitution.) The question is whether that discussion is held in public or in private. I think the Democrats want it in public.
7.5.2005 2:14pm
Michael B (mail):
"I don't remember hearing a lot about "the demonstrable social value in nominating someone to the bench with deep judicial experience and a well-developed judicial philosophy" when Justice Thomas was the nominee."

Firstly, the discussion was addressing character assassination. Too, the various rhetorical salvos concerning Thomas' putatively inadequate judicial philosophy have not been demonstrated, e.g., Scott Douglas Gerber's review of Thomas' tenure in First Principles.

"... his lack of an impressive resume made it impossible to argue that the nomination was about anything other than ideology."

See above. Beyond that, the "anything but" phrasing is a non-serious non-starter, itself indicative of the various character assassination motifs launched against Thomas we're suppose to take as more substantive; again, see above. The mere fact this "argument" continues to be ever re-entered as an aspect of the debate is itself an artifact of the intense vilification and political/ideological core of the Left/Dem's initiatives against Thomas.

"With a nominee like Bork, on the other hand, defenders could always claim the nomination was about his distinguished record rather than this ideology."

Again, a non-serious non-starter, devoid of virtually any cogent quality; rhetorical flim-flam.

"Once ideology is 'in play'"

Merely a layman, but it's safe to say ideology and moral and political philosophy has always been in play, and in current usage at least so since the Warren Court according to many insiders.

"Under a Democratic administration, the roles would undoubtedly be reversed. There is no right or wrong about it; there is only politics."

Clinton's nominations, Ginsburg and Breyer, prove this to be incorrect. Ideology and politics were not, in an overriding or usurping manner, brought to the fore by the opposition party.
7.5.2005 3:23pm
Steve:
You use a lot of big words; I can't make heads or tails out of them other than to grasp that you seem to disagree. I do think that defending Clarence Thomas' lack of a resume at the time of his nomination by pointing to the after-the-fact evidence of his subsequent jurisprudence might be fairly labelled a "non-serious non-starter," among people who use such terms.
7.5.2005 4:19pm
jgshapiro (mail):
I suppose Jones's comments are true, but only in the sense that if judges confine their rulings to very narrow legalistic issues, no one will care what they do. I don't see this as possible for a Supreme Court justice, since the disputes they resolve by definition must be controversial among the circuits/states and somewhat material in nature or cert would never have been granted.

How do you as a justice, in practice, avoid making law when Congress routinely punts on important details of legislation and leaves them to be sorted out by courts later (e.g., is the civil rights restoration act retroactive?) and when constitutional phrases are capable of multiple interpretations by reasonable people (e.g., is a broad public purpose a public use? Is a "regulatory taking" a taking under the 5th amendment?)?

Even if she is just talking about substantive due process, this doctrine has many adherents on both sides of the aisle -- conservatives when it protects home schooling, liberals when it protects gay sex, almost everyone when it protects contraceptives for married couples. Is a Senate majority ready to confirm a justice who would do away with all of it? How do you do away with some of it and not the rest?

By the way, by the rule of law being tethered to "continuity," is she suggesting she would affirm precedents with which she strongly disagrees?
7.5.2005 7:05pm
Michael B (mail):
"... defending Clarence Thomas' [presumed] lack of a resume at the time of his nomination by pointing to the after-the-fact evidence of his subsequent jurisprudence might be fairly labelled a 'non-serious non-starter,' among people who use such terms."

So many things could be noted, but will limit my response. I didn't so much as mention Thomas' resume, was addressing the subject of his judicial philosophy. However the following represents most if not all his resume:

A.B., Holy Cross, graduates cum laude
J.D., Yale Law School
Worked for John Danforth, Missouri AG office
Worked in Monsanto's legal dept.
Worked as legislative aid for now Senator Danforth
DOE, Asst. Secretary for Civil Rights
EEOC, Director
U.S. Court of Appeals
Supreme Court Justice

(From a couple of sources, including this one again.)

And if someone like a Kennedy or an O'Connor is deemed to be more acceptable, spare me the complaint about a lack of a judicial philosophy, a Justice Brennan they're not.
7.5.2005 8:14pm
Larry (mail):
I am not taking a position on whether Thomas is qualified or not, but I should note that the way you put it, Thomas looks rather average:


A.B., Holy Cross, graduates cum laude
J.D., Yale Law School



Big deal. We all have JDs. He didn't go to a "name" undergraduate school or graduate with distinction from law school.


Worked for John Danforth, Missouri AG office
Worked in Monsanto's legal dept.



No clerkship. No large firm experience. Heck -- no firm experience. No experience as a prosecutor. This would scare most headhunters away.


Worked as legislative aid for now Senator Danforth



Obviously got this job because of his schmoozing skills from his first job.


DOE, Asst. Secretary for Civil Rights
EEOC, Director



Political appointments.



U.S. Court of Appeals
Supreme Court Justice



He never spent any time as a Supreme Court advocate, never spent any time as a professor, etc.

Now, I am not taking a position on whether or not Thomas is well-qualified or not, but the way you put it, it doesn't hold a candle to most professors.
7.5.2005 10:03pm
Michael B (mail):
Good grief, I won't comment on your slights per se. However, the way I "put it" was simply to list it. I didn't embellish it, didn't lie about it, didn't use any artifice - such as double or triple spacing - and didn't make it out to be more than it is. It is what it is and it's sufficient for his position, contrary to the innuendo that resulted from some of the smears against him. Additionally, I primarily emphasized his judicial philosophy as researched and illuminated by the Scott Douglas Gerber volume. I responded to the resume issue only after my statement concerning his judicial philosophy was misrepresented.

Odd, that you don't respond in a corrective manner to the facile notion of Thomas having a "lack of" a resume, which is what I responded to and which is not untypical of the snipes heard subsequent to the smear and vilification campaign against Thomas. Odd, indeed, but again not at all surprising in the wake of the campaign against him, a point I'm emphasizing since it was one of the primary points of the (original) post, though a topic that was subsequently evaded.

And frankly, if Thomas has a resume which appears to be less stellar than, for example, a Kennedy or an O'Connor or a Breyer, that's not going to persuade me that Kennedy or O'Connor have performed better as Supreme Court Justices than Thomas has, to the contrary, especially so as pertains to a coherent and cogent judicial philosophy. Without at all slighting them, resumes are useful to a point, but only to a point. Finally, the only reason I mentioned the fact he graduated cum laude from his undergraduate college was because it's often noted he was initially admitted to Yale law school, in part, as a result of an affirmative action program, while it's never mentioned he graduated cum laude with his undergraduate program. The impression given is that he was admitted to Yale almost solely because of an affirmative action program.

Quaint, how those impressions tend to stick in the wake of a character assassination campaign. In fact, that's the only reason I responded to the banalities and received opinions as expressed in the original post. In the wake of a vigorous smear campaign, those smears and innuendoes somehow continue to carry a ring, however false, of authenticity. Quaint indeed.
7.6.2005 1:00am
LArry (mail) (www):
Now I am having difficulty understanding what you are saying. I am not taking a position on whether Thomas was objectively qualified to be on the court, I am merely pointing out that his resume is not nearly as impressive as most professors' resumes. No big deal. I am not sniping, and besides, he is on the court, and there is little that can be done about that. He is what he is.

But, you need to understand, too, that a justice's performance on the court is a subjective matter. Many would argue that O'Conner and Kennedy have performed "quite well" on the court, since they have been called "powerful" by some. Indeed, O'Conner (the only justice to have ever won an elected office) is credited by some with having preserved a woman's right to an abortion. Whether this is objectively true or not is anyone's guess. WHR, on the other hand is credited (whatever that means) with having expanded the power of the court.

I don't quite know what Thomas is credited with doing. I am sure that he participates in conferences, and handles whatever administrative tasks are assigned to him quite well. He has written a few opinions that I agree with, and a few that I disagree with, but does that make him "better" or "worse" -- who knows ?

I am not engaging in "character assassination" except, perhaps, to simply note that 1) it is difficult to tell who is the "best" justice; and 2) Thomas' resume (before becoming a judge) would probably not be good enough to get a teaching position at a top-ranked school.
7.6.2005 1:28pm
Michael B (mail):
Larry,

I did not indicate you were engaging in character assassination. And given any number of factors (e.g., judicial outlooks, ideological and political interests, underlying philosophical and moral views), I certainly understand the subjective quality of judgements involved. On the other hand that "many would argue" that Kennedy and O'Connor have performed within acceptable bounds, if not better, does not impress me. As you noted, highly subjective judgements are involved, in addition to some rather Machiavellian political interests. Finally, and especially so given ideological and often enough blatant political bigotries amply on evidence in the cloistered and tenured settings of academe, that Thomas might not achieve a teaching position, even now, is far more telling of those cloistered and overly protected ivory towers than it is of Thomas per se. Have a good day.
7.6.2005 2:48pm
DRJ (mail):
Larry,

Let's go back to where you said:

"As to Roe (or Casey), a lot of people who matter think that Roe serves a good political purpose: keeping the "left" energized in the fear that it somehow would be overruled, and the right "energized" out of some strange hatred of it. Personally, I don't care one way or the other, as I know that people in my social class will always have ready access to abortions. Always."

"Your social class"? Rather elitist of you, old chap. Wouldn't it have been more democratic to say "your economic class"?
10.29.2005 8:40pm