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Roberts = Bork?

I'm not the only one with a sense of deja vu. Duke law professor Erwin Chemerinsky writes of the Roberts confirmation debate, "the parallels to the fight over Bork are striking." Both Bork and Roberts were nominated to replace "swing" justices (Powell and O'Connor, respectively); both have "impeccable academic and professional qualifications"; and both are quite conservative. For this reason, Chemerinsky maintains, " Democrats must oppose Roberts." The last point is where Chemerinsky and I disagree.

[NOTE: This post has been corrected. I originally wrote Chemerinsky is a professor at USC -- as he was during the 1980s -- when he's actually at Duke. This was an error, and the text has been revised accordingly.]

Related Posts (on one page):

  1. Roberts = Bork?
  2. Deja Vu All Over Again?
Richard Riley (mail):
Chemerinsky is at Duke now.
8.31.2005 7:27pm
Thorley Winston (mail) (www):
Show of hands people, who thought that there was a snowball’s chance in Hades that Chemerinsky wouldn’t come out full bore against anyone that Bush nominated to the Supreme Court?
8.31.2005 7:43pm
Reg Jones:
Hugh Hewitt interviewed Erwin Chemerinsky on June 2, 2005:


Hugh Hewitt:
"Now Erwin, I've got a challenge for you. Name for me, one, two, or three judges, who you really believe John and I would approve as Chief Justice of the United States, whom you would believe would be a good choice, who would not be divisive."

Erwin Chemerinsky:
"My guess is that John Roberts would not be a divisive fight. I don't think there's a paper trail. He's unquestionably conservative, but I don't predict he would produce a fight. Emilio Garza from the 5th Circuit. Very conservative, but I don't think there's the paper trail, and frankly, I think Bush may pick him for political gain. In contrast, I can tell you. If Bush picks Luttig, or if Bush picks McConnell, there's going to be a big fight. And I'd much rather there'd be somebody just as conservative without a divisive fight. I don't think our country is served right now by the kind of confirmation battle that a Luttig or a McConnell or a Scalia or Thomas would produce."
8.31.2005 8:19pm
Hank:
Why shouldn't liberals oppose Roberts, despite his academic and professional accomplishments? Bush chose him because he is conservative, and senators have every right to oppose him because he is conservative. "Advise and consent" may have come to mean that there should be a presumption in favor of the President's selection, but there is no reason that it should not instead mean that the Senate has a veto power and that the President should actually seek the Senate's advice before he nominates. And perhaps a president, especially one who won by a narrow margin, should not be viewed to have the right to control the Court for decades. Even conservatives might be wary of a Court that tilts too far in one direction. The Court hasn't had a full-fledged liberal since Brennan and Marshall retired, and under the circumstances, replacing a "moderate" like O'Connor (who was moderate only in relation to the radicalism of Scalia and Thomas) with a far-right justice would not be good for the Court. If the Court becomes too unbalanced, the public will view it as politicized as the other two branches.
8.31.2005 8:53pm
Thorley Winston (mail) (www):
Well in Chemerinsky’s defense perhaps he means that there should be a lower bar for appointing someone as Chief Justice than for appointing them as an Associate Justice.

I know it defies logic, but then so does Chemerinsky ;)
8.31.2005 9:19pm
Carl Sanders (mail):
Democrats can feel free to oppose him, if they want to commit political suicide. Bork was scary, Roberts isn't. "John Roberts' America" is where you get arrested for eating french fries, and that doesn't have quite the Borkian ring to it it needs. When you get a guy whom both Cass Sunstien and Richard Epstein say great things about (though I don't know if Sunstein has formed an opinion yet about whether he should actually be confirmed) it's going to be impossible to make this into a fight about making the court "radical."

Also, do you think the public views the court as "politicized" now? My guess (without evidence) would be it does. I'm not sure how Democrats opposing Roberts because he is not liberal enough is supposed to solve this conundrum.
8.31.2005 9:25pm
HeScreams (mail):
This is getting very frustrating, and I have to vent about it somewhere. Why are so many otherwise respectable sources of commentary misrepresenting Roberts's writings?. This Chemerinsky editorial is just one recent example.

Roberts's brief about the prayer at graduation (para 7) was conservative, but hardly "radical." It was a school function, but for seniors, and Roberts's point that this setting is hardly coercive, since the parents are right there, is worth considering. You may disagree, but calling this brief evidence of a possibility that, with Roberts on the court, "government aid could be used for religious indoctrination" is overreaching.

The San Francisco Chronicle makes the same mistake characterizing Roberts as anti-feminist, when the bill in question was simply ridiculous. (Sorry, I can't find a cite for this. I'm refering to discussion of Roberts's memos about a 1984 equal-pay bill sponsored by Olympia Snow.) Roberts's reaction could have simply been to oppose a bad bill, not because it was pro-women but because it was a bad bill. I suppose next anyone who opposes the wholesale massacre of men is now a woman-hater?

And the New York Times wrote a consensus editorial labeling Roberts as anti-Endangered Species Act is similarly off. He never voted on that case; only on a motion for an En Banc hearing. And in that opinion he discusses theories that should be used to uphold the ESA!

How can the public be expected to have a reasonable debate over this new guy when so much misinformation is being spread by respectable sources?
8.31.2005 9:36pm
Thorley Winston (mail) (www):
"John Roberts' America" is where you get arrested for eating french fries, and that doesn't have quite the Borkian ring to it it needs.


Okay did this remind anyone else of Joseph Lieberman’s call for warning labels on junk food?
8.31.2005 9:38pm
Hank:
Carl Sanders: I agree with your first paragraph, and did not intend my posting to offer practical advice to Democrats. But the reason that it would be political suicide for Democrats to oppose Roberts is the existence of the presumption that the President has a right to his nominee -- that "advise and consent" means don't advise, and consent automatically except in extreme cases. And I agree that the public already views the court as politicized; in fact, since Bush v. Gore I suspect that a substantial part of the public believes that all justices' votes are result-oriented all the time. But perhaps with a balanced Court that attitude could slowly change.
8.31.2005 9:44pm
Tim Dowling (mail):
Hank writes: “Why shouldn't liberals oppose Roberts, despite his academic and professional accomplishments? Bush chose him because he is conservative, and senators have every right to oppose him because he is conservative.”

To oppose him simply because he is politically conservative (which he undoubtedly is) assumes he is either unwilling or unable to set aside his political philosophy in deciding cases. If a nominee knows the difference between law and politics and shows the ability to set aside personal policy preferences, being a political conservative or liberal shouldn’t matter.

The other problem with treating nominations as pure politics is that the filibuster has changed the ground rules. It’s only a short hop to saying “why shouldn’t liberals filibuster him because he’s conservative.” If both sides start playing that game, if they put party politics ahead of the good of the country, it will become difficult to get anyone confirmed.
8.31.2005 10:11pm
Hank:
Tim Dowling writes, "If a nominee knows the difference between law and politics and shows the ability to set aside personal policy preferences, being a political conservative or liberal shouldn’t matter." True, and if my grandmother had balls she'd be my grandfather.

As for filibusters, the way to avoid them is for the President to seek the Senate's advice, as the Constitution provides, and to work out a compromise; neither side seeks to prevent all confirmations.
8.31.2005 10:18pm
Thorley Winston (mail) (www):
Actually I’d wager that a substantial part of the American public probably believes that (some) justice’s votes are results-oriented since Roe v. Wade or when the SCOTUS did a 180 on the Commerce Clause to uphold the New Deal after FDR threatened to pack the Court.

That being said, regarding the disingenuous call for a “balanced court” from the losers of the last three elections, funny how we never seem to hear a cry for “balance” when Clinton picked Ginsburg to replace Byron White. Moreover does anyone seriously doubt that a Gore or Kerry administration would try to appoint justices that fit their preferred ideological mode and with the blessing of those who now cry out for a “balance”?

There is nothing sacred about the current ideological make-up of the Court. Replacing O’Connor with Roberts appears, at least on the face, to be a small step in the right direction for those of us that would prefer an originalist rather than activist Court. The real interesting battle will be when Rehnquist leaves and we pick a new justice and a new Chief.
8.31.2005 10:23pm
Hank:
"funny how we never seem to hear a cry for 'balance' when Clinton picked Ginsburg to replace Byron White." Balance doesn't consist in replacing each retired justice with an ideological clone, as that would assume that the Court is perfectly balanced in whatever state it is in when the retirement occurred. When White retired, the Court had already lost its remaining liberals -- Brennan and Marshall, so a liberal replacement would have been reasonable. But Clinton, of course, did not pick liberals of the Brennan and Marshall mold. Ginsberg and Breyer are liberal only relative to the conservatives and radicals now on the Court.

And, please, most readers of this blog are too legally sophisticated to fall for "orginalists rather than activist." Leave that language to the politicians.
8.31.2005 10:31pm
John Jenkins (mail):
Hank, there are a few problems with that.

(1) Filibusters were not part of the constitutional design, so this imposes a greater burden than the Constitution;

(2) Republicans (I believe rightly) believe that this concession would not work both ways and the next time a Democratic president nominated someone, a Republican minority would be portrayed as obstructionist in the press if they did not acquiesce to the future president's pick.

(3) It's better to have a fight when you're in the stronger position. The Republicans have the Presidency and both houses of Congress. If they can't win now, they never will.

(4) All judges do impose their views on their jurisprudence, some judges impose their views ex ante, some ex post. I think Roberts would apply his views ex ante, (e.g. here are what the rules are, is this conduct within the rules?) rather than ex post (here is the outcome I prefer, how do I massage the rules to get there?).

*My* preferred solution is to eliminate the extraconstitutional filibuster rule so that a majority of the Senate can give its advice and consent, but no one has the political guts to pull it off for now (the next time a Democratic president is around and this happens, if the Democrats have a majority in the Senate, the filibuster will be eliminated and the big broadsheets will hail it as a brilliant idea).
8.31.2005 10:34pm
Thorley Winston (mail) (www):
JJ, I think you’re correct that a Democratic President with a Democratic Senate would not allow the filibustering of judicial nominees. The only question IMO is whether the next Republican Senate will opt to make the formal rule change at the beginning of the 2006 session or whether they use the Byrd Option.
8.31.2005 10:45pm
Hank:
The Democrats would not eliminate the filibuster because they wouldn't have the guts to do it. They are to be admired for that. After all, they wouldn't have had the guts to come up with the Swift Boat liars either. You Republicans, in order to justify Republican tactics, are imagining that the Democrats are just like you. They are not. They play by the rules and lose elections because of it.
8.31.2005 10:55pm
Gene Vilensky (mail) (www):
First Re Chemerinsky:

The man doesn't even pretend to be not blatantly partisan anymore. You should see the stuff he posts over at the LiveCurrent on the LA Times blog.

And by the way, his earlier statement to Hewitt about McConnell generating a strong reaction is actually rather duplicitous. The problem is that while Robert is extremely intelligent, he is not the academic of McConnell's mold. He has not opined a whole lot on deep theoretical issues, whereas McConnell has. I know that, of course, Chemerinsky was being "descriptive" rather than "proscriptive" but look, who is he kidding here. The point is that McConnell on the Court would have serious opportunity to move it to the right and enact lots of conservative Constitutional theory (which I happen to also agree with). I am not saying that Roberts is a bad choice for conservatives, but I think that he's not the theoretician that McConnell is, so I suppose that at the time, Chemerinsky was being pragmatic... better a more conservative version of O'Connor or even (gasp!) Rehnquist, than a more consensus-generating Scalia (which, by all accounts, McConnell would be).


To Hank—

Yes, of course, pity yourself that the reason that Democrats lose elections is that they are too nice. Oh, and by the way, when you're done trying to do third-rate sociology about why Democrats can't seem to win, you might want to respond to John Jenkins' substantive points. For example, why are you glad that there is such a thing as a fillibuster on judicial nominees? It is clearly not required by the constitution, but only exist because of a Senate rule. Also, how is Ginsburg not as liberal as Brennan and Marshall? Of course she is. Not that she shouldn't be on the Court, but let's not pretend like she's Joe Lieberman incarnate. She's solidly on the Left, probably the far Left as far as most of America is concerned.
8.31.2005 11:24pm
NickM (mail) (www):
It only takes one Kossack to derail a comments thread.

Chemerinsky is a partisan hack to a greater degree than any other law professor who is a frequent TV/radio/newspaper pundit. Even Susan Estrich, who is still best known for her former career as a campaign staffer, is more likely to express a dissenting opinion from party orthodoxy.

Nick
8.31.2005 11:33pm
Thorley Winston (mail) (www):
Re: Judge McConnell

Not to go too off-topic since he is not (yet) a Supreme Court nominee but does anyone know anything about his general philosophy on Enumerated Powers particularly on interpreting the Commerce Clause?
8.31.2005 11:35pm
Jim Rhoads (mail):
Genr V:

Not to be a picker of nits, but do you really mean to suggest that Supreme Court Justices appropriately "enact"
constitutional theory with their opinions. That is precisely the problem I have had with the Douglas/Warren/Brennan approach to jurisprudence.

"Enactment" and "repeal" are part of the legislative vocabulary which, I submit, is foreign to the traditional judicial function.
9.1.2005 12:37am
Gene Vilensky (mail) (www):
Jim Rhoads--

Sure, you're right. I should have expressed myself better. But, I think you know what I mean.


NickM--

I apologize for derailing the thread... But, to bring my original argument back into the more substantive mold with which JNV started, I doubt that the Roberts nomination is going to be like that of Bork for precisely the reason that Chemerinsky was willing to say that Roberts would be a consensus candidate, while McConnell would cause serious problems. The point is that Roberts is not seen as a theoretician. And theoreticians are seen as ideologues and people think that that's bad. Look at the framing of the story on O'Connor. She's labeled as a great moderate pragmatist and Scalia as a partisan ideologue. Never mind that she was the one who was involved in Republican politics out in Arizona while Scalia was writing law review articles. Any attempt to paint Roberts as a theoretician/ideologue would fail completely since he is not on record anywhere really promoting a particular theoretical outlook on the Constitution. So it would be difficult to present him as an ideologue. Bork sort of opened himself up on that front.
9.1.2005 1:59am
Gene Vilensky (mail) (www):
Oh and one more point... I just wanted to comment on the actual column by Chemerinsky. He, like Bruce Ackerman, is now exposing himself completely. Essentially, he is arguing that one of the reasons to oppose Roberts is because he might overturn some Supreme Court precedents. But surely, Chemerinsky has no problem with the New Deal SC, which in 1937 reversed itself after a naked political threat from FDR. Similarly, Brennan and Warren overturned precedents (some of which was a good thing, by the way). Even the Lawrence decision he hails Kennedy for in his column overturned Bowers. So, it isn't the lack of respect for stare decisis that Chemerinsky doesn't like, it's that Roberts is conservative.

Essentially, the liberal strategy for the Courts is the following:

1) Hijack the courts through naked political threats.
2) Once on the courts, change years of precedent to get the policies you like.
3) Once conservatives get on the Court, espouse a new-found respect for precedent.
4) Complain that conservatives like Thomas are too hostile to precedent and that they should not be SC justices.

Now I am not saying that Lawrence was a bad decision or some of the other overturning of precedent wasn't good. But if your critique is that someone will overturn precedent, you are being dishonest unless you also criticize EVERY SINGLE Court which does that. If we had the respect for precedent that people like Chemerinsky and Ackerman are trying to force conservative jurists to have, then Separate would still be Equal.
9.1.2005 2:09am
Hank:
Gene Vilensky: The fact that the filibuster is not required by the Constitution is obviously not an argument against it. (You haven't claimed that it is unconstitutional.) The reason that I'm glad that there is such a thing as a filibuster on judicial nominees is that I do not believe that the fact that the President and a bare majority of the Senate are of the same party at a particular time entitles them to control the Court for the next generation. (A filibuster for judicial nominees is thus more important than a filibuster for legislation and for executive branch and independent agency nominees, and the Republicans who tried to eliminate the filibuster only for judicial nominees had it backwards.) The views of the 48 percent of voters who opposed Bush should not be ignored, especially when it comes to lifetime appointments. If a judicial nominee can't earn the support of 60 percent of the senators, he or she should not be confirmed. And, please, let's not hear about the filibuster's not being democratic (not that you argued that), because the Senate is not democratic.
9.1.2005 6:21am
Hank:
I'll elaborate on two things in my preceding post. First, the reason that I think that judicial nominees ought to be able to earn the support of 60 percent of the Senators is to keep extremists -- of all ilks -- off the Court. If the people want extremists in the other two branches, that's fine, but the Court is not supposed to be democratic; it is supposed to check the other two branches. Second, I favor the filibuster for legislation and executive branch and independent agency nominees, but regard it as less important with regard to them (and believe that it should be invoked less readily with regard to them) because legislation can be repealed and these nominees do not have lifetime appointments and are more subject to political control.
9.1.2005 6:46am
Tim Dowling (mail):
"If a judicial nominee can't earn the support of 60 percent of the senators, he or she should not be confirmed."

There are a lot of things wrong with this assertion, but even if you look at it from a purely pragmatic perspective, it seems fatally flawed. If 41 Senators use express support for Roe as a litmus test, and another 41 use express opposition to Roe as a litmus test (not an unrealistic scenario, in my view), no one would ever be confirmed. There are other 41/41 splits that would present the same problem.
9.1.2005 8:28am
Hank:
You have a point, but it hasn't happened yet, and I think that it is an unrealistic scenario. Most senators, I think, do not want to acknowledge having a litmus test, and do not tend to stand on principle. I think that they'd work out a compromise. The theoretical possibility of no one's ever being confirmed does not, for me, outweigh the benefits of the filibuster.
9.1.2005 9:06am
Tim Dowling (mail):
I certainly agree that "most senators do not want to acknowledge having a litmus test." They have them anyway, under the radar. The litmus test might not be single-issue, but even if its based on some critical mass of issues (e.g. Roe, affirmative action, gay rights), the effect is often the same. I'm much less optimistic about the Senate's ability to strike compromises, given the increasing polarization of our nation's politics.
9.1.2005 10:04am
NickM (mail) (www):
Attention everyone: We have a new definition of extremist.

Thank you to the Hank's New English Dictionary.

Extremist: (ex-TREE-mist) n: A person supported by a majority, but less than 60%, of the voting population or of a selected legislative body.

We now return you from your excursion into Humpty Dumpty Land.

Nick
9.1.2005 10:22am
Daniel Chapman (mail):
Hypothetical scenario:

Let's say Roberts gets filibustered... let's say it can't be broken for four years and Hillary wins in '08. Does she then get to let the nomination die and appoint someone else? Would it be fair for republicans to filibuster whoever she nominates? What if four justices die before we confirm someone?

Does the filibuster, taken to its extreme conclusion, allow congress to destroy the Supreme Court? I think in this hypothetical (and extremely unlikely) situation, it IS unconstitutional to filibuster supreme court nominees.

Any thoughts?

(note, I don't think the same situation could apply to appeals court judges since congress DOES have the power to eliminate them at any time.)
9.1.2005 10:32am
SimonD (mail):
R.e. Chereminsky: I recently stumbled across a Debate Club matchup between Erwin Chemerinsky and Brannon Denning. The debate covers what questions might be asked of Judge Roberts and retreads the constitutionality of the filibuster. My favourite moment - a genuine, and very literal, laugh-out-loud moment - is when Denning responds to Chemerinsky's assertion that the filibuster should be used to reject nominees he dislikes by quoting a 1997 article co-written by Chemerinsky arguing that the filibuster is "simply a minority veto.... It is not part of a long Senate tradition and history alone cannot justify it." Denning drops a hammer-blow coup de grace - "what changed your mind?" - leaving Chemerinsky to stumble and blithely change the subject to the nuclear option. It isn't every day you get to see Chemerinsky get blown out of the park by an associate Professor of the Cumberland School of Law.

Tim:
If a nominee knows the difference between law and politics
The problem is, many Democratic members of the Senate do not. I'm thinking, in particular, of Joe Biden and his recent ACS speech, but I think Schumer and Durbin have both made similar law-as-politics remarks.
9.1.2005 10:53am
Hank:
NickM: Amusing, but not logical. To say, as I did, that the right to filibuster prevents the confirmation of extremists does not imply that it can't be used to prevent the confirmation of non-extremists. In practice, however, it won't be.

Daniel Chapman: Your hypothetical scenario might form the basis for an argument that the filibuster of Supreme Court nominees is unconstitutional; I have no opinion on that. But it is so unlikely (as you acknowledge) that it does not serve as a policy argument against the filibuster of Supreme Court nominees. After all, we've had the right to filibuster for I don't know how long, and Congress has not destroyed the Supeme Court yet.
9.1.2005 10:56am
Mjp:
Interesting hypothetical- one I wish I had a certain answer to. On a practical level the answer would be that yes, the constant filibusting could go on, but that the 'other side', be they Republicans or Democrats would create a media and popular fury that would result in the first genuine Presidential landslide for quite a while. This solution is logical after the last election where I seem to recall a high level Republican threatning to traget any filibuster in the manner that they targeted Daschle.

The question of whether it would become unconstitutional is certainly interesting. Of course the House could reasonably argue that the Supreme Court have the power to destroy Congress given the absence of checks and balances, other than the rarely invoked impeachment clauses. However, considering everything, including the fact that there is no remedy for the court within the Constitution and nothing to prevent a finding of unconstitutionality of the filibuster, the only problem would bet that it has existed for many centuries, how can it suddenly become unconstitutional?

In sum, it's an interesting theoretical question; thankfully one that is unlikely to be tested!!
9.1.2005 12:05pm
Daniel Chapman (mail):
We rehashed this question ad-nauseum last spring... the filibuster has NOT existed for hundreds of years as applied to supreme court nominations. The only time it's ever been done involved a couple failed cloture votes for a nominee who was quite possibly being bribed by the mob (as I understand it). My point is only that using a filibuster to prevent the confirmation of nominees to the Supreme Court may be unconstitutional because the constitution requires a functioning judicial branch. An extended filibuster of a SCOTUS nominee has never happened.

I think the best argument in favor of constitutionality is that a filibuster can't possibly "destroy" the court because the president can always pick someone else. This may run afoul with the President's Art. I nomination power, though.

For a more concrete question, does anyone know the law on what happens if a SCOTUS nomination passes through to another presidential term? Does the nomination die or does it go forward without a re-nomination by the new president?
9.1.2005 12:44pm
SimonD (mail):
In terms of the filibuster, I wrote extensively at the time that I saw no constitutional bar to the filibuster on nominations. The filibuster may be unwise, a relic of the past, "a minority veto" as Chemerinsky termed it - if you think so, it should be abolished. But the argument that it is unconstitutional can be found nowhere in the text; the Constitution grants the Senate the power to advise and consent - but nowhere in the Constitution does it spell out how the Senate will do business, and in fact, quite to the contrary, it explicitly grants each institution the authority to determine how to run its own procedings. I wouldn't necessarily oppose the end of the filibuster, but I do oppose the Republican abuse of the constitution to do it, just as I oppose liberal abuse of the constitution for their ends.
9.1.2005 3:07pm
SimonD (mail):
I can't find a copy online, but if the memory serves, there's a McGinnis-Rappaport article,
House Rules: Is a supermajority a requirement for tax hikes constitutional?
that is extremely relevant to this debate - I know its available online, I just can't remember where, so if anyone knows, feel free to post a link. ;)
9.1.2005 3:15pm
Hank:
Do you mean, perhaps, "Supermajority Rules and the Judicial Confirmation Process"? It's on the Web. This blog won't let me post a URL, but I found it by googling McGinnis-Rappaport.
9.1.2005 3:29pm
Daniel Chapman (mail):
actually, judging from the title, it would be completely irrelevant to this debate. I'm musing on the idea that if taken to the extreme, the act of filibustering supreme court nominees gives congress the power to "destroy" a co-equal branch of government. As such, it wouldn't violate any particular provision of the constitution, but it does violate the doctrine of separation of powers.

I'm not even trying to revive the "nuclear option" talk by saying this argument should be used to oppose a filibuster in the future... it was just random musing on constitutional theory. Filibusters of standard legislation and even filibusters of appeals court judges wouldn't apply to this argument, however, because no co-equal branch of government is threatened.
9.1.2005 3:29pm
SimonD (mail):
You know what, I stand correct - the article I was thinking of wasn't House Rules, it was McGinnis &Rappaport, "THE RIGHTS OF LEGISLATORS AND THE WRONGS OF INTERPRETATION: A FURTHER DEFENSE OF THE CONSTITUTIONALITY OF LEGISLATIVE SUPERMAJORITY RULES" 47 Duke L. J. 327:
"we contend that there are strong reasons to conclude that the Framers did not use the term "passed" to mean "passed by majority vote...we argue that there is no inconsistency in an interpretation of the Constitution that would permit Congress to pass supermajority rules but which would require those rules to be subject to repeal by a simple majority. Historical and structural principles require a majority of the legislature to have the power to repeal rules, but no such principles preclude a rule that requires supermajority support for passage of legislation.
What is good for the goose is good for the gander; what reason can be brought forth to suggest that, if the House may impose supermajority rules for carrying out the functions delegated to it by the constitution, that the Senate may not do exactly the same thing? I argue that, whatever one might think of the WISDOM of the filibuster, its CONSTITUTIONALITY seems on firm ground.

See also McGinnis &Rappaport, John O. McGinnis &Michael B. Rappaport, "The Constitutionality of Supermajority Rules: A Defense", 105 YALE L.J. 483 (1995), in which they "argued that the Rules of Proceedings Clause, U.S. CONST. art. I, § 5, cl. 2, gives each house of Congress the authority to pass any rules that relate to its internal operations unless those rules violate some language or principle in the Constitution...The only inference that can be drawn from the supermajority requirements in the Constitution is that the Constitution itself does not require a supermajority to pass a bill." (quoting from RIGHTS OF LEGISLATORS, supra, at n.9).
9.1.2005 3:38pm
SimonD (mail):
Hank,
From my brief glance through "Supermajority Rules and the Judicial Confirmation Process" - it's available on SSRN - they spend most of that essay discussing whether a supermajority requirement is a good idea. Which is besides the point, of course, unless one accepts that it is constitutional, which their previous articles (see previous post) have done a lot to convince me of. Rappaport also wrote a fabulous dissection of the President's recess appointment power last year, which seems particularly prescient in light of the Bolton nomination.
9.1.2005 3:45pm
Thorley Winston (mail) (www):

For a more concrete question, does anyone know the law on what happens if a SCOTUS nomination passes through to another presidential term? Does the nomination die or does it go forward without a re-nomination by the new president?


My understanding is that if the Senate recesses without having confirmed or rejecting a judicial appointment, the nominee is sent back to the White House who may or may not resubmit them the next Senate term. It’s not that uncommon for lower court nominees particularly if the nominee is sent later in the term or there is some defect in the nomination (e.g. didn’t finish the background check, opposed by a Senator from that State, etc.) and usually the resubmitted nominees get voted on during the next term. In which case it would be up to the next President to decide whether or not to resubmit the candidate. President Bush for example resubmitted several of President Clinton’s nominees to the Senate including one that was sent to the Senate in January of 2005 (something which I believe has never happened before).

Speaking of which if you’ve ever heard the factoid that 65 of President Clinton’s judicial nominations didn’t get an up or down vote, you should know that most of these were candidates that were sent back to the White House at the end of the term they were originally submitted to the Senate and then resubmitted the following term where they then got up and up or down vote (just as happened with President’s Reagan and Bush 41). However since each time they’re sent to the Senate they count as a “nomination” the first “nomination” technically did not get an up or down vote.
9.1.2005 4:40pm
NickM (mail) (www):
I agree that there is no Constitutional impediment to an internal Senate rule requiring a supermajority to agree to proceed to a final vote. However, the current Senate rule that purports to require a supermajority to change existing rules, for the reasons summarized by McGinnis &Rappaport ("[h]istorical and structural principles require a majority of the legislature to have the power to repeal rules"), is Constitutionally infirm and could be freely ignored by a majority vote.

For those who didn't see why Hank's response to my prior comment was a non sequitur, there is no such thing as an extremist majority. It's an oxymoron. Calling a judicial nominee with majority support an "extremist" is simple demagoguery. It is, however, easier than confronting the substance of his judicial philosophy and views or defending your own.

Nick
9.1.2005 4:46pm
Hank:
OK, so you wouldn't call the Nazis "extremists" in Nazi Germany. That's one way to use "extremist." But that's not the only way. One could call the Nazis in Nazi Germany "extremists" because their views are extreme relative to some other standard. A majority of Americans apparently believe in creationism or intelligent design, but we could still call that an extreme view.
9.1.2005 4:56pm
SimonD (mail):
I agree that there is no Constitutional impediment to an internal Senate rule requiring a supermajority to agree to proceed to a final vote. However, the current Senate rule that purports to require a supermajority to change existing rules, for the reasons summarized by McGinnis &Rappaport ("[h]istorical and structural principles require a majority of the legislature to have the power to repeal rules"), is Constitutionally infirm and could be freely ignored by a majority vote.
I don't agree. Consider the Constitution. The Constitution contains rules for how it can be amended and updated. Having adopted the constitution, we are obliged that its provisions - let's call them "rules" - can only be changed according to the terms it provides for doing so. Why would the Senate be any different? The rules and procedures of the Senate are absolutely extraconstitutional; the constitution has nothing whatsoever to say on the subject, and in fact explicitly recuses itself from doing do. The Senate is a continuing body, and thus, once the Senate adopts a set of rules which includes a rule about how the rules can be changed, it is bound to change its rules only in the manner provided by its rules. Likewise, unless "we the people" take some sort of action that frees us from the constitution - the adoption of an entirely new one, perhaps - we are bound by the constitution's rules for amendments. Rules, by the way, which appear in Article V, not Article III...But that's another argument.
9.1.2005 5:55pm
Daniel Chapman (mail):
Let's say this senate adops a rule on its last day in session that all future business requires unanimous consent to pass. Can the next congress overturn that rule without unanimous consent? Of course it can. Same thing applies to any rule change.
9.1.2005 7:10pm
SimonD (mail):
I disagree. I say that it can't. The Senate is a continuing body, unlike the House - which is precisely why the House of Representatives explicitly votes on the adoption of a set of rules at the beginning of each Congress, and the Senate does not, unless the rules are challenged.
9.1.2005 7:22pm
Daniel Chapman (mail):
Well you're wrong. I figured you'd see why since this would shut down our government as far as the constitution is concerned... but I guess not.
9.1.2005 7:31pm
Robert Schwartz (mail):
Chemerinsky is a perfect example of a liberal professor who can argue any position with complete assurence if it meets a short term political goal of the Democrat Party. As SimonD demonstrated above he, has no fixed principles except that the country should be run by elite liberals like him.

Hank, who seems to be channeling Paul Begala, seems to think that the Democrats can block Roberts, and maybe even that they have the right to. Hank, I have bad news for you. This is all power politics, there isn't a shred of principle anywhere.

The President has the power to nominate whom he wants and the only advice he wants from the collection of senile fools and villans in the Senate is a polite: Yes, Sir, How High Sir?" And, I am willing to wager that he will get it, after the vain buffons are done preening and pating themselves on the back in front of the television cameras.
9.1.2005 7:40pm
Hank:
Of course the Democrats have the right to block Roberts; the filibuster rule is still in effect. But I agree fully with your third paragraph, and never meant to imply that the Democrats would do what I suggested. I was merely making the point that "advice and consent" need not mean as little as you correctly say it has come to mean. Further, I recognize that we could do a lot worse than Roberts. Cass Sunstein, in today's WSJ, says that Roberts is a minimalist conservative rather than a radical like Scalia and Thomas.
9.1.2005 7:56pm
Robert Schwartz (mail):
"Of course the Democrats have the right to block Roberts; the filibuster rule is still in effect."

They will simply provoke the Republicans into amending the rule.

"I was merely making the point that "advice and consent" need not mean as little as you correctly say it has come to mean."

It is a political issue. And I don't care.

"Cass Sunstein, in today's WSJ, says that Roberts is a minimalist conservative rather than a radical like Scalia and Thomas."

I hope that the mindless opposition of the liberals embitters Roberts as it did Thomas. I also hope that he turns out to be Atilla the Hun, but I fear that he is really Souter in drag.
9.1.2005 9:38pm
Hank:
I didn't know that Roberts dresses in drag. What will the "family values" Republicans say about that?
9.1.2005 10:11pm
Wince and Nod (mail) (www):
Hank,

The Nazi Party was not a majority party. Hitler did not win the presidency:
Hindenburg's term as president was ending in the spring of 1932. At age 84, he was reluctant to run again, but knew that if he didn't, Hitler would win. Hindenburg won the election, but Hitler received 37% of the vote.
They did not have a legislative majority:
Germany's government remained on the brink of collapse. The SA brownshirts, about 400,000 strong, were a part of daily street violence. The economy was still in crisis. In the election of July 1932, the Nazi Party won 37% of the Reichstag seats, thanks to a massive propaganda campaign.
This is a common and understandable mistake.

At any rate, the word extremist is virtually meaningless in American politics as a label. It's actual meaning, if you go by usage, is, "Someone with whom I have a dramatic disagreement."

As an example, I find the Kennedy and Kerry plans for universal government funded health care to be extreme. As usual, this tells you much more about me then about them. Similarly, your portrait of Roberts as extreme tells me more about you than Roberts.

I would like to point out that President Bush sought out the advice of a large number of Senators before picking Roberts.

Yours,
Wince
9.1.2005 10:26pm
SimonD (mail):
Well you're wrong.
Well, gee, Danno - I guess when you put it like that, I'm convinced. You got me. ;) But really, humour me: if the Senate rules don't run on from Congress-to-Congress, why is it that the House adopts its rules anew each time a new House of Representatives convenes, while the Senate almost invariably just swears in the members and gets on with it, without considering its new rules? What rules is the Senate operating under, if the rules of the previous Congress die with that Congress, as in the House?

The Senate is a continuing body. As such, it does not need to adopt a new set of rules each January 4th, because it continues to operate under the rules that were in force in the previous Senate - including those rules which govern how the rules can be changed.

Chemerinsky is a perfect example of a liberal professor who can argue any position with complete assurence if it meets a short term political goal of the Democrat Party.
Indeed. The living constitution theory embodies the empty, result-oriented, standardless incoherency suggested by former Solicitor-General Seth Waxman, who opined before the supreme court in Florida Prepaid (527 U.S.) that "we are attracted by any notion, or principle, the logic of which carries us to a result we think is just."

The President has the power to nominate whom he wants and the only advice he wants from the collection of senile fools and villans in the Senate is a polite: Yes, Sir, How High Sir?" And, I am willing to wager that he will get it, after the vain buffons are done preening and pating themselves on the back in front of the television cameras.
This I disagree with. Suggesting that Senators are any more self-involved than anyone who takes the monumentally self-aggrandizing decision to run for President of the United States is absurd; the constitution wisely makes the Senate as an institution and the President co-equal in the process of appointing Judges. How the Senate chooses to give its advice and consent is a matter for the Senate; I don't think it's wise for it to create a system the practical effect of which is to give each individual Senator the power to deny consent, but that's a question for the Senate.
9.1.2005 10:32pm
Hank:
Wince, you're right that the Nazis weren't elected as a majority party, but all I said is that they weren't extreme, using "extreme" in a numerical sense, in Nazi Germany. I know that there were no elections or polls we can rely upon, but I think it reasonable to assume that, at least during the early years of World War II, they had the backing of the majority of the German people. Even the backing of a significant minority would cause them not to be extreme in the numerical sense.

And I don't know whether Roberts is extreme. I view Scalia and Thomas as extreme, using "extreme" not in the numerical sense but in the sense that they believe, for example, that the Constitution does not prevent the government from executing people whom it knows conclusively (on the basis of evidence discovered after conviction) to be innocent. Herrera v. Collins, 506 U.S. 390 (1993) (Scalia, J., concurring).
9.1.2005 10:51pm
WHerndon (mail):
I think it can be safely said that Hank is really Erwin Chemerinsky himself in disguise. As such, all the criticism of Chemerinksky here is applicable to Hank. Nothing he's said here betrays the slightest taint of principle. It's all power politics.

Of course, his side doesn't have the political power. So go and use the filibuster on Roberts. The Republicans will merely activate the 'nuclear option' -- this time with overwhelming public support. I'd prefer such a scenario not come to pass, but if it does, I will quite enjoy watching it.

I am amused to hear all these reasons on the left why a president whose party controls the Senate and House has no right to name a conservative to the court. I can't find the clause in my copy of the Constitution saying that a president must maintain idealogical 'balance.' Or maybe that's a New Deal practice that began under FDR.

Had I thought in a similar fashion, I would have objected to the selection of justices Ginsburg. I did not. I supported her confirmation in light of her stellar professional qualifications and the fact that the Democrats controlled the presidency and Senate. For the same reasons, I support the confirmation of Roberts.

By the way: I'd like to know how this notion that Democrats are too nice fits in with the recent Naral ad accusing Roberts of supporting violence against abortion clinics.
9.2.2005 10:12am
Robert Schwartz (mail):
Stop the Presses! Dog Bites Man!

WASHINGTON -- Warning that the confirmation of Supreme Court nominee John G. Roberts Jr. would jeopardize liberties that had been protected by retiring Justice Sandra Day O'Connor, 160 law professors from around the nation yesterday urged the Senate to reject him. ...


At a news conference, Duke University Law School professor Erwin Chemerinsky said Roberts was "likely to be much more conservative than O'Connor" and could overturn narrow decisions upholding affirmative action, the right to privacy and separation of church and state. ...


Chemerinksy was joined at the news conference by Georgetown University law professor Peter Edelman, who predicted that the letter from "Law Professors Against John Roberts" would attract "many, many more" signatures as the Judiciary Committee takes up Roberts' nomination next week.


In other news, the sun rose in the east this morning. ...

Bunch of partisan hacks.
9.2.2005 2:00pm
Hank:
Every one of those 160 law professors is a partisan hack, but your opposing view, of course, is purely intellectual and has nothing to do with partisan concerns.
9.2.2005 2:22pm
Robert Schwartz (mail):
No, Hank, I am not non-partisan, but I am not flaunting my institutional identification or making any claim to expertise beyond that of the ordinary citizen.
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