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Judicial Nomination Fights -- Past and Present:

The responses to my post on the Keisler nomination below raise many issues that I have addressed in prior posts on this blog (see here, here, here, and here). To recap my take on things: 1) I believe the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology; 2) the modern practice of opposition to appellate judicial nominations on ideological grounds began in the mid-to-late 1980s when Senate Democrats decided to try and blog some of President Reagan's nominees; 3) efforts to block Reagan and Bush I nominees intensified in the last two years of their presidential terms(1987-88 and 1991-92); 4) once Republicans took the Senate during the Clinton Administration, they retaliated and upped the level of obstruction, often engaging in greater obstruction than had Senate Democrats; 5) during this administration, Senate Democrats have upped the level of obstruction, in both the majority and the minority; 6) this "downward spiral" of retaliation and politicization (to use Larry Solum's phrase) is ultimately corrosive of the judiciary and prevents the nomination and confirmation of the most-qualified judicial nominees; 7) neither party should engage in the obstruction of qualified judicial nominees, and both parties deserve blame for engaging in obstruction and delay in the past.

Returning to the present, I believe there is (once again) a window of opportunity to escape from the "downward spiral of politicization." While there is a Republican President, the Democrats control the Senate and have a reasonable prospect of capturing the Presidency in 2008. Therefore, Democrats have the opportunity to re-establish a standard of good behavior toward judicial nominees — a standard neither party has met in quite some time — and therefore create Republicans to follow suit.

Another possibility would be for both parties to agree to a set of rules now that would bind both parties beginning in January 2009. Such a deal is only possible sufficiently far in advance that there is genuine uncertainty about which party will control the Senate and the White House when the deal becomes effective. On this basis, I believe there was a greater opportunity for such a compromise in 2003 than there is today, but I would welcome this or any other compromise that would put an end to the current judicial confirmation wars.

Steve Lubet (mail):
Jonathan wrote:


2) the modern practice of opposition to appellate judicial nominations on ideological grounds began in the mid-to-late 1980s when Senate Democrats decided to try and blog some of President Reagan's nominees;


can you please provide some specifics, as i truly do not recall such events. also, what do you mean by "decided to try and block"? were any nominees actually blocked, or was it just an idea floated by some senators?


3) efforts to block Reagan and Bush I nominees intensified in the last two years of their presidential terms(1987-88 and 1991-92).


again, what do you mean by "efforts to block"? also, isn't there a difference between blocking nominees for ideological reasons and simply not proceeding with confirmations at the end of a president's term?

finally, let me say that the most troublesome phenomenon is the use of bogus ethics charges. i would much rather see serious ideological discussion -- it beats trumped up mud slinging.
5.15.2007 9:55pm
Viscus (mail) (www):

1) I believe the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology


The relevant group who gets to decide what basis the Senate either rejects or accepts judicial nominees is the Senate. Not you.

But since we are talking about how others should do their jobs, I think that Bush should stop favoring Federalist Society members and ideological conservatives in his appointments to the judiciary. I am getting tired of originalists and textualists being appointed. I think the Senate should take your advice as soon as the President takes mine. =)

I am personally very much in favor of perpetual judicial confirmation wars. The idea that their is exactly one person that is more qualified than all 300 million other U.S. citizens for a particular judicial post is obviously false. There are many qualified individuals for each position. Obviously, ideology is going to play a factor in choosing among the many quality individuals who are available.

If ideology is taken into consideration by the President (and it is), there is no reason it shouldn't be taken into consideration by the Senate.

It not enough to nominate someone who is merely qualified. They must be ideologically acceptable as well.

As far as I am concerned, I hope the judicial confirmation wars continue. My only regret so far is that Republicans didn't have the guts to invoke the nuclear option. I think it is high time we ended the anti-demcratic filibuster for judicial nominees (and for everything else!).
5.15.2007 9:59pm
Viscus (mail) (www):

bogus ethics charges


Sometimes investigations into ethics go nowhere (i.e. are bogus). Sometimes they go somewhere. I personally think that nothing is more important than ethics when considering a lifetime appointment.

We should continue to consider ethics in the appointments process. And we should continue to consider ideology. And we should continue to consider qualifications.
5.15.2007 10:02pm
frankcross (mail):
Well, I think the research shows that presidents always have considered ideology in appointments, but that Reagan/Meese took it to a higher level, which eventually produced some backlash.

I'm not against consideration of ideology in appointments or in confirmation (for both sides). As McGinnis &Rapaport have pointed out, appointments to the judiciary are ideological and the filibuster forces the selection of more moderate and presumably less activist judges. And qualifications definitely matter -- Epstein and Segal have shown that there is a qualifications/ideology tradeoff; in general greater qualifications enable a more ideological candidate to be confirmed.

Though I very much agree that this should be open on the ideology and not based on trumped up ethics charges.
5.15.2007 10:02pm
GregHH (mail):
"in general greater qualifications enable a more ideological candidate to be confirmed."
Not for Bork.
5.15.2007 10:20pm
Kovarsky (mail):
they blogged the nominees!
5.15.2007 10:25pm
byomtov (mail):
1) I believe the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology;

2) the modern practice of opposition to appellate judicial nominations on ideological grounds began in the mid-to-late 1980s when Senate Democrats decided to try and blog some of President Reagan's nominees


As Frank Cross points out, Presidents consider ideology. Why shouldn't the Senate?

Further, I think your focus on the mid 80's is simply wrong. As I pointed out in the other thread, judicial appointents have been politicized for much longer. Can you say "Impeach Earl Warren?" Can you say "strict constructionist?"
5.15.2007 10:25pm
Jonathan H. Adler (mail) (www):
Steve --

I cite the evidence you seek in the prior posts to which I linked. For instance, on November 12, 1985 the Washington Post reported on the decision by Senate Democrats to begin opposing Reagan's judicial nominees. According to the Post:

Since they are loath to oppose a nominee solely on ideological grounds, the Democrats have trained their fire on other issues -- credibility, temperament, discrepancies in testimony -- to wound the most conservative nominees for judgeships and Justice Department vacancies.
As for the end-of-term slowdowns, these were targeted affairs, rather than across-the-board delays of all nominees.

I agree that a forthright discussion of ideology would be preferable to trumped up ethics allegations. Yet isn't it notable that Senators avoid such a forthright discussion? One real possibility is that this is because they realize opposing nominees on such grounds would be a political loser.

I should also note that I am prepared to defend the proposition that the country is more likely to get high caliber nominations the more deferential the process is to the President due to institutional differences between the executive and legislature, and therefore the consideration of judicial ideology by a President (of either party) should be less worrisome than the consideration of ideology by the Senate. Among other things, I think that Executive consideration of ideology tends to occur on a "higher" level, whereas Senate consideration of ideology tends to focus on a judicial nominee's expected views on specific issues likely to come before a court. I believe we observe this phenomenon in the judicial selection and confirmation process, and that it is no accident (see, e.g., Hamilton's discussion of nominations in The Federalist). I will elaborate on this point at a later date, as I have exams to grade and an (overdue) essay to finish up.

JHA
5.15.2007 10:27pm
Viscus (mail) (www):

I am prepared to defend the proposition that the country is more likely to get high caliber nominations the more deferential the process is to the President due to institutional differences between the executive and legislature...


Of course. I mean, the executive always selects better judges. After all, only the executive can hire major league ideologues like Monica Goodling to vet judicial nominees.

And of course, if Monica Goodling were working for a Senator, she would suddenly be rendered unable to put the nominees through the same ideological litmus test she applied in her position in the executive. She would probably lose a few braincells the second she switched jobs.

I will concede this, it does take a special kind of executive to put someone like Monica Goodling in such a position. =)
5.15.2007 10:40pm
Tom Tildrum:
"Senate Democrats decided to try and blog some of President Reagan's nominees"

Given that this was the mid-'80s, I can't imagine this was terribly successful.
5.15.2007 10:52pm
badger (mail):
More Alderlogic: Because, in a floor vote in the 80's, Democrats and a handful of Republicans rejected Robert Bork's nomination to the Supreme Court, it is now the obligation of Democrats to approve of every qualified judicial appointment George Bush makes to the federal judiciary, no matter how extreme and no matter the degree to which his own motivations in selecting his nominees are guided by ideology. The terrible cycle of reciprocity must be ended, not by some kind of negotiated settlement between the two sides, but by the unilateral disarmament of one side that just happens to be the side not ideologically favorable to Prof. Johnathan Alter.

Irrefutable.
5.15.2007 11:25pm
Jonathan H. Adler (mail) (www):
badger --

(Re-)read the posts. My discussion focused on appellate nominations, not Supreme Court nominations.

JHA
5.15.2007 11:29pm
Randy R. (mail):
The practice of Borking candidates for SCOTUS started with Bork. And with good reason. If anyone has any doubts that this man was selected for purely ideological reasons, you need only read his books and speeches published since then. The man has a truely bizarre hatred of all gay people, liberals in general, and would like to transform our society into a dictatorship of himself. He really dislikes our free and open society. The man deserved to be Borked.

As I recall, the next candidate was Borked because he smoked pot (was it Ginsberg?). I don't think that deserves a Borking, but hey, it doesn't play well with the religious wingnuts, so you can't really blame that one on the Dems. Finally, Reagon got his man, whoever it was -- Kennedy?. He also got Scalia, who is hardly a compromise in anyone's view.

Adler: "Therefore, Democrats have the opportunity to re-establish a standard of good behavior toward judicial nominees — a standard neither party has met in quite some time — and therefore create Republicans to follow suit."

Pure naivite. You really think Karl Rove would play fair just because the Dems are? This administration has proved that it will politicize absolutely everything (not my phrase, but Mr. DiIulio's, the guy who start the whole faith-based initiatives).

It's particularly naive to think that you can establish a standard of good behavior in this one instance, but not in other areas, which loom far larger. Anyone who has spent any time in Washington will tell you that civility and comity between the two parties took a drastic nosedive during the Reagan Administration. The parties could bicker in the Senate, then play golf in the afternoon.

That has completely changed, and many members view the other side of the aisle as pure evil that must be totally, completely, and permanently destroyed. (Not my phrase, but Mr. Grover Norquist's)

So in this atmosphere, you actually hope for civility on judges? Laughable. Nothing is going to change until the entire atmosphere changes, and no one sees that happening anytime soon.
5.16.2007 12:08am
Randy R. (mail):
Adler: "As for the end-of-term slowdowns, these were targeted affairs, rather than across-the-board delays of all nominees [ in the 1980s]"

Well, very true. But Senator Hatch and his fellow Republicans engaged in across the board delays throughout the Clinton administration. That was eight long years, and they were NOT 'targeted affairs.' Clinton got Ginsberg in precisely because she was considered a moderate. Clinton did not and could not nominate anyone to the left of the scale. The minute Bush took over, however, suddenly the dam broke for HIS nominations, and he has not bothered with moderates.

And we see the results. I have a friend who is a trial lawyer, and he said that the number of torts claims that he can get even in the federal courthouse has dropped dramatically because of these federal appointees.
5.16.2007 12:15am
Randy R. (mail):
Now, it's true that in the past, there often were very few battles about federal appointees to the courts. In some ways, the courts have themselves to blame. By taking on such social issues as abortion, civil rights, and so on, many of our basic rights hang on the decisions of judges.

Myself, I'm glad they did this. Better to have rights come from the judiciary than no place. But it was because the Republicans fought civil rights for blacks and other minorities in the 60s that the courts were forced to step in. it is because of the cowardice of state legislatures that the courts were forced to overturn homophobic sodomy laws.

Perhaps if our elected representatives actually did some leading for a change, instead of following bigoted voters, then the courts could concentrate on mundane stuff, and nominating judges wouldn't be such a big deal.
5.16.2007 12:20am
Mark Field (mail):

But it was because the Republicans fought civil rights for blacks and other minorities in the 60s that the courts were forced to step in.


I'm on your side here, but it was mostly Southern Democrats who blocked civil rights. Moderate Republicans in the Senate and on the Fifth Circuit were actually important contributors to civil rights in some cases.
5.16.2007 12:37am
Proud to be a liberal :
Many of the Southern Democratic politicians opposed to civil rights became Republicans after the 1964 Civil Rights Act and the Voting Rights Act of 1965; for example, Strom Thurmond.

And let's not forget that Republicans went after Abe Fortas, nominated by Lyndon Johnson to succeed Earl Warren, &that the result was that it was impossible for Johnson to confirm any nominee to the Supreme Court before January 1969, when Richard Nixon became president. The Republicans played hardball successfully with the Supreme Court and wound up appointing 7 of the 9 justices currently serving on the Supreme Court. Ironically, Republicans somehow seem to feel short-changed with the justices who were nominated by Republican presidents.
5.16.2007 12:59am
Randy R. (mail):
Mark Field: You are certainly correct it was the southern Dems who fought civil rights. It was also correct that Johnson knew that by taking on this fight, the Dems would lose the South for a whole generation.

Nixon, too, knew that, and played that card perfectly. This was his whole southern strategy. And so the whole civil rights movement became a political football that electorially benefited the Repubs in the south, allowing them to dominate the Presidency in the beings of Nixon, Ford, Reagan, and Bush I.

The Repubs have attempted to duplicate that strategy with gay rights thoughout the 90s to now, with some success. And so history repeats itself.
5.16.2007 2:00am
jvarisco (www):
"Another possibility would be for both parties to agree to a set of rules now that would bind both parties beginning in January 2009."

How would this be enforced?
5.16.2007 2:12am
DCP:

it is because of the cowardice of state legislatures that the courts were forced to overturn homophobic sodomy laws.


Forced? As in, five of us appointed justices don't personally agree with this properly enacted state legislation widely supported by its jurisdictional constituency so we are "forced" to nullify it and completely diregard the doctine of stare decisis regarding a recent case directly on point as well as the bedrock principal of federalism that our government was founded upon.

I don't think sodomy should be illegal either (remember the prohibition applies to all, regardless of sexual orientation and I'm guessing that about 95% of the sodomy taking place right now is betweena man and woman), but let's not throw the baby out with the bathwater.
5.16.2007 2:41am
Dave N (mail):
I love the historical revisionism of some posters: "Many of the Southern Democratic politicians opposed to civil rights became Republicans after the 1964 Civil Rights Act and the Voting Rights Act of 1965; for example, Strom Thurmond."

Strom Thurmond did change parties--but I challenge you to name 2 others who did in the afternmath of the Civil Rights movement. George Wallace never changed parties; Fritz Hollings never changed parties; Robert Byrd never changed parties--so let's stop the BS that all those racist Democrats became Republicans.

On the other hand, Federal Judge Frank Johnson, a Republican, enforced civil rights laws in Alabama--facing down Democratic Governor George C. Wallace.
5.16.2007 2:59am
Dave N (mail):
Frank Cross,

You argue that the Reagan Administration took ideology to a new level in choosing judges. I would suggest you are one adminstration too late. Jimmy Carter's judicial nominations were well to the left of Bill Clinton's on almost every score.

Using the Ninth Circuit as but one example, with the possible exception of Richard Paez (and perhaps Sydney Thomas), Stephen Reinhardt, Betty Fletcher, and Harry Pregerson are all well to the left of Bill Clinton's appointees--including Betty's son, William.
5.16.2007 3:07am
hugh:
Of course the wars could continue and escalate. Carried to a ridiculous extreme, it would be impossible for any judicial nominees to be confirmed and all federal judges would be appointed on a recess basis.
5.16.2007 7:32am
Andrew Okun:
I wonder about the term "Borking." It seems to refer to two different things and I'm not sure which is meant.

One is intense examination of the nominees professional record, in judicial nominations meaning review of judicial and academic work, to see their ideas. This is what was done to Bork, whether it was a good idea or not, which folks here are arguing about.

The other meaning is intense review of the candidate in possibly mean and unfair ways to try to get rid of them. This wasn't done to Bork; the first instance I am aware of is that it was done to John Tower when Bush I nominated him for SecDef. Vigourie, I think it was, decided that Bush I had forgotten who was in charge now and had to be corrected and so Tower was assailed, not on an ideological basis but for ideological reasons. The standards applied to a Texas politician's personal conduct suddenly changed a lot. Happened to Ginsberg later.

I am not meaning to blame this kind of nomination hearing behavior on Republicans, although it is tempting, but just to try to clarify what is being argued about here and whether "Borking" actually refers to it.
5.16.2007 11:15am
Dave N (mail):
Andrew Orkun:

I would define "Borking" in the sense that Ted Kennedy used over-the-top rhetoric in opposing Bork's nomination.
5.16.2007 11:22am
Randy R. (mail):
DCP: "I don't think sodomy should be illegal either (remember the prohibition applies to all, regardless of sexual orientation and I'm guessing that about 95% of the sodomy taking place right now is betweena man and woman), but let's not throw the baby out with the bathwater."

You make some good and worthy points, worth discussing, but not on this board. I would note only, though, that in the case of Texas v. Lawrence, the Texas legislature actually did vote to repeal the sodomy laws against gays (hurray!) , but then Gov. George W. Bush vetoed the law (boo!)

I myself think that's rather amusing.
5.16.2007 11:32am
Andrew Okun:
I disagree with Prof. Adler's characterization that the Democratic senators under Reagan are to blame for leading to the current atmosphere and that Republicans merely responded.

First of all, and I may be wrong about this, but Senate Democratic blocking under Reagan was not numerically significant, or at least was considerably less than Hatch's behavior or Reagan's nominating decisions.

Second, Reagan's nominations were _all_ targeted affairs. He had decided to alter the judiciary and all his nominations were aimed at that. Previously was it not the case that the general pattern was most judges were meant to be safe choices and the judgeships were handed out with a recognition of the pattern of political power, so that a Democratic president might appoint a Republican to a judgeship in a state with Republican Senators as a nod, while giving more to Democrats than Republicans overall? Anyway, it certainly wasn't the case under Reagan, whose philosophy was to use the power of the presidency to recreate the judiciary, not in response to Carter's liberal appointments but in response to the previous 30 years of judicial history.

In any case, the parties have now split on what makes a good judge. The Republicans do not want a range or mix of smart judges with a range or mix of philosophical or intellectual viewpoints, because they regard many of those viewpoints as wrong. I don't think there is a Republican presidential candidate out there whose website doesn't say something about nominating strict constructionist judges who will interpret, not make, law. I am sure some people here will regard that as just a different way of saying "judge" or at least "competent judge" but that doesn't change the fact that the mix of judges out there including many Republican appointments of yesteryear are not like that. It is a plank of the Republican platform to change the judiciary. For a future Republican Senate to approve a Democratic president's nomination of anyone outside this definition would be a failure to execute the program. They'll approve a few because of the balance of power, but the idea that they would do so because the Democrats had started to behave gentlemanly in some prior administration is cracked.
5.16.2007 11:32am
Randy R. (mail):
David N: "George Wallace never changed parties; Fritz Hollings never changed parties; Robert Byrd never changed parties--so let's stop the BS that all those racist Democrats became Republicans. "

True. But all three eventually learned to change their mind, and Wallace and Byrd especially did what they could to atone for their racism and became true defenders of civil rights for blacks. The same cannot be said for those who eventually became the dominant republican party in the south, upon which Nixon and Reagan relied up for their 'southern strategy'
5.16.2007 11:35am
Andrew Okun:
I would define "Borking" in the sense that Ted Kennedy used over-the-top rhetoric in opposing Bork's nomination.

I think that is a third meaning! You can quietly or tastefully oppose a guy for being a strict constructionist or a pot smoker, or you can be loud and demogogic and turn it into politics. Perhaps Kennedy is the inventor of this behavior in judicial nominations, though I doubt it.
5.16.2007 11:39am
frankcross (mail):
Dave N, you're wrong about the Carter Administration judges. He did appoint some strong liberals but overall his judges were a moderate or even conservative bunch. He appointed more judges from the opposite party (18%) than any recent president. Reagan was at 4%. And if you look at overall decisions, his judicial appointees were distinctly less ideological than those of any president since Kennedy.
5.16.2007 11:51am
AB (mail):
Dave N says:

You argue that the Reagan Administration took ideology to a new level in choosing judges. I would suggest you are one adminstration too late. Jimmy Carter's judicial nominations were well to the left of Bill Clinton's on almost every score.

As Frank points out, that isn't supported by the evidence. Indeed, Carter established merit-based selection committees to pick appellate judges. These committees sometimes picked Republican Catholics, for example, without quizzing them on what they thought about hot-button issues. Carter was committeed to increasing the number of women and minorities on the bench, but he was not especially concerned with ideology per se. The big change, when it comes to court of appeals judges and ideology, was with Reagan, who really moved this political vetting process into the White House. There are many sources to consult on this, such as Sheldon Goldman's book on the history of judicial selection.
None of this is to say that Reagan was wrong to politicize things more -- that is a separate issue. But let's try to be accurate about things.
5.16.2007 12:33pm
Mark Field (mail):

Strom Thurmond did change parties--but I challenge you to name 2 others who did in the afternmath of the Civil Rights movement. George Wallace never changed parties; Fritz Hollings never changed parties; Robert Byrd never changed parties--so let's stop the BS that all those racist Democrats became Republicans.


This is right in one sense, wrong in another. It is true that few of the Southern Dems actually changed parties. There were some (John Connolly), of course, but that's not the real story. The real story is the party realignment in the South in which the succeeding generations of those who, in previous years would have been Dixiecrats, became instead Republicans. Vice versa in the North, of course.
5.16.2007 12:34pm
Daniel950:
Randy: "By taking on such social issues as abortion, civil rights, and so on, many of our basic rights hang on the decisions of judges. Myself, I'm glad they did this. Better to have rights come from the judiciary than no place... Perhaps if our elected representatives actually did some leading for a change, instead of following bigoted voters, then the courts could concentrate on mundane stuff, and nominating judges wouldn't be such a big deal."


Randy,

Do you understand why democracy is considered a good thing? Do you understand why we have a written constitution? Do you understand why, if enough so-called "bigoted voters" wanted, we could repeal the 14th Amendment, or any other Amendment? We could entirely repeal the judiciary and Article III if we wanted, by amending the Constitution. Where then, would your precious robed masters be?

You are fundamentally anti-democratic because you see the will of the masses as conflicting with your lifestyle. If you really think people are going to destroy the entire concept of paticipatory democracy just so you can give all power to the Judges in order to enact what you view as important social issues, then you're crazy.
5.16.2007 1:42pm
Randy R. (mail):
Oh I understand democracy is a great thing. In fact, I worked very hard in the early 90s to help bring democracy to the former communist countries through a program sponsored by the ABA and US AID, among others.

I'm also glad that the rights of the minorities are protected from the tyranny of the majority. I hope YOU understand that, since you are undoubtedly in the minority regarding some issues. And you DO understand that many of the people in America were in fact bigoted towards blacks some time ago, and quite a few opposed any sorts of civil rights for them? And because blacks refused to go along with the majority, they took their cases to the courts for redress, and so we had such cases as Brown v. Board of Education. The case could have been avoided had Gov. Faubus simply allowed integration of his schools. Today we have integration of our schools, in part because courts forced it upon our bigoted publics. (Who then still refused to go along, and contributed to the flight to the suburbs).

and then we had the courts intervene because some people wanted to get married, but one person was black, and the other white. The bigoted majority thought it simply unconscionable, at least in Virginia, and so SCOTUS had to step in in a very anti-democratic manner. Perhaps if Virginia weren't so hell bent on keeping blacks in their place, the courts would not have had to get involved, don't you think?

I guess being black *could* be considered a lifestyle that conflicts with the will of the masses, which apparently, is your will as well, since you seem very offended that anyone would like to have their rights vindicated in the court system, rather than the legislature.

So go ahead and repeal the 14th Amendment, and Art . III, since apparently you are so upset that blacks would have the temerity to find liberty in 'this land of liberty.'

But then, I always love it when the homophobes come out and show their true colors.
5.16.2007 5:05pm
Daniel950:
My point, as you obviously missed, is that courts can only do so much outside the will of the people. You don't seem to understand that. Courts are, ultimately, powerless in a democracy unless the people support them.

Even in your example of integration and civil rights for blacks, there was such as thing called "massive resistance." Courts are powerless without the will of the people. Until the majority of the people were convinced of the rightness of civil rights for blacks, court orders ultimately meant nothing.

So despite your condemnation of "bigoted voters," you will never avoid the problem of having to convince them. The Courts will not save you. Sorry.
5.16.2007 6:31pm
Randy R. (mail):
Actually, it is you who missed my point. I agree that the courts are a not the proper venue for vindication of rights -- it should be the legislatures. It is only because legislatures get it wrong so often, banning contraceptives for married couples, banning interracial marriage, banning sex between consulting adults, that the aggreived parties are then forced to go to the courts. And then our rights to these matters hang on the decisions of a few people, and so we have these big fights when we try to appoint judges.

If our elected representatives were more concerned about liberty and freedom than trying to tell everyone how to live their lives, we wouldn't have these problems. In Canada, for instance, blacks, gays and other minorities have their rights, and they didn't have to resort to courts to get them.

I agree, the problem is that we have to convince the bigoted voters -- not an easy thing to do. However, there is a common thread amongst bigoted voters, and that is many of them rely upon their religion. Perhaps it is really the ministers and preachers who preach hate and divisiveness that we should convince.

hey, it's their right to be a bigot, and I'm cool with that. But if we don't get our rights in the legislatures, then don't complain when we have to go to the courts. Eventually, we get them, and the will of the people usually follows anyways.

I do disagree, though, on one point. Even when blacks didn't have the will of majority behind them, the court orders certainly did mean something. That's why the National Guard was called in.
5.16.2007 7:19pm
Daniel950:
"It is only because legislatures get it wrong so often..."


I'm sorry, but you still act as if the legislature should merely be a rubber stamp for your own special interests, to be "corrected" by the courts if they get things "wrong," as if they're being corrected by a teacher. Why is the legislature "wrong" just because it doesn't give you what you want? I still have to wonder if you really understand why we have legislatures, what courts are really for, and why certain rights are actually written into constitutions. And here I thought liberals were all about fellowship with their countrymen. Nope. It's all about getting a bunch of elitist lawyers on a court to declare the rules for us plebes.

Under what authority can a court "correct" a legislature that rejects a proposal, say, to permit gay marriage? Why should you be allowed a do-over by a branch of government that is wholly unsuited to determining what our rights should be, and instead is supposed to interpet whether the laws were executed based on how they were written? Do you not see ANY problems with giving courts the basic function of a legislature?

"But if we don't get our rights in the legislatures, then don't complain when we have to go to the courts."


We? Do you not see the peril that EVERYONE will do this? And then what will be the value of passing laws when a court can just declare the rules we live by? What would be the value of voting? Of written constitutions? Whatever happened to the rule of law, not of men? Why are men on courts any better suited to determine what rights should apply, than the people's elected legislatures, or the people themselves?

The answers to these questions are obvious and have been answered throughout various sad episodes of history. Fundamentally, you are unwilling to accept a Constitutional system of government in which the majority does not validate your own special interests. And you're willing to tear down democracy in your mad quest to get it. And that has become more evident with every post you make on the subject. So you'll have to forgive me if I don't hold anything you say on these matters as having any value whatsoever.
5.16.2007 9:12pm
Andrew Hyman (mail) (www):
In this Adler-Somin debate, I take Adler's side in this blog post.
5.16.2007 10:54pm
Randy R. (mail):
I think we are talking past each other. So chill.

Of course I disagree with legislatures when they seek to regulate our lives. And it is the courts function to strike down laws that are unconstitutional. Which they have, many times. I don't see anything wrong with that, unless you are arguing that courts should never strike anything as unconstitutional.

I'm merely saying that often we have legislatures that seek to regulate people's lives that violate the constitution. Sometimes they want to ban contraception, or interracial marriage, or gay marriage, or integration of races in schools, or banning minorities the right to vote, access to institutions, or even just a cafeteria. All these have been struck down by the courts. They have that right, and I think it was right for them to do so. I really don't care if the majority thinks blacks should sit at the back of the bus -- they have a right to sit where ever they please. And when blacks filed court cases to have these overturned, did you really think that they were rejecting a constitutional system of government?

If leglislatures would confine themselves to figuring out ways to fill potholes instead of trying so hard to regulate our sex lives or ability to see a movie in an integrated movie theater, the world would be a better place, and the courts would not have to get involved in the first place.

And when legislatures refuse to allow two adult people to have consensual sex, then you do the next best thing -- you go to court. Maybe the case is thrown out, but maybe it isn't. But at least in our society, we have an option, and thank goodness for that. And yes, everyone does that already, so any peril has already occured.

"Of written constitutions? Whatever happened to the rule of law, not of men? Why are men on courts any better suited to determine what rights should apply, than the people's elected legislatures, or the people themselves? "

I don't know why you are so confused by this. If the majority of people say that blue eyed men are not entitled to have sexual relations with any other person on the planet, it would be a clear constitutional violation. So we uphold the constitution by having the courts strike down that law. What's so bad about that? I'm sure there is some crazy intepretation of the Bible out there that prohibits that sort of 'lifestyle' and wants it gone. I think that if YOU were the blue eyed person, you wouldn't simply sit back and accept your second class status, and you would likely a) try to stop it in the legislature, and failing that, b) be the first to file in court.

And I'd be happy to file an amicus brief on your behalf.
5.17.2007 12:25am
Daniel950:
"Sometimes they want to ban contraception, or interracial marriage, or gay marriage, or integration of races in schools, or banning minorities the right to vote, access to institutions, or even just a cafeteria. All these have been struck down by the courts. They have that right, and I think it was right for them to do so."

Interracial marriage, the right to vote, access to [public] institutions and [public] cafeterias, and the integration of races in schools - ALL of that was dealt with in the 14th Amendment, which was specifically passed by the majority of the people to end unequal treatment for blacks. Anyone who knows the most basic history of the 14th Amendment knows that.

Contraception and gay marriage were never, ever, ever, ever considered so fundamental that they were part of a constitutional amendment voted on by the people. In fact, the idea that a ban on contraception is somehow unconstitutional is flat-out ridiculous. It was banned for decades, if not centuries. It's perfectly with a state's police powers to ban things based on the majority's own moral disapproval.

That majoritarian morality can be overriden when we adopt constitutional amendments designed, for instance, to provide equal protection to blacks. Otherwise, the normal way to end those laws you dislike is through the DEMOCRATIC PROCESS. The 14th amendment was not passed to provide gay marriage, protection to blue-eyed people, or any other liberal victim group du jour, and it is an insult to everyone's intelligence to argue that the Radical Republicans intended that passing the 14th Amendment would permit gay marriage, etc. It is flat out ridiculous to even make that argument.

Every day a new law is declared unconstitutional, but it seems plainly evident that "unconstitutional" nowadays is merely another word for "laws I as a judge don't like." In fact, I think that this criticism applies to most jurisprudence for the past 40 or so years. Striking down laws in Lochner, Roe, Lawrence, etc., the court has been defying the plain reading and meaning of our Constitution for years now. And excuse me if I think it's time it ended.

I happen to believe in democracy, and that means I believe that the people have the right to enact stupid laws like bans on contraception. The idea that our highest, supreme law of the land says ANYTHING about contraception, or gay marriage, or blue-eyed people, is idiotic.
5.17.2007 1:19am
Daniel950:
The danger of a Judicial system so corrupted by politicians-as-judges who declare laws they don't like unconstitutional is that people will quickly learn that they have no power to organize society as they see fit, and judges will cut down all the laws that hold society together. In America, the people, not the judges, are sovereign. But a judge who says that Law X is not permitted, nor Law Y, and certainly not State Constitutional Amendment Z, is crushing the will of the people, and destroying the social fabric of rational shared morality. It is a judicial dictatorship that satisfies a judge's most base desires.

Now, perhaps some people won't care that the majority's ox is continuously gored. Especially since it seems to be trending towards striking down any and all laws regarding morality. But Sir Thomas Moore still says it best: "And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?"

Only a perverse, morally deranged person could wish for a society in which all laws regarding morality were cut down. But plenty of people are pursuing it in their blind quest to use the courts as their own special interest validators. Maybe you want to live in a world where there's no protection from child predators (age is an unconstitutional taboo), stalkers (lust is an is an unconstitutional taboo), rapists (consent is just another unconstitutional taboo), etc. But I don't want that world. And you, and most of the libertarians on this blog, are so blinded by their mad quest for freedom/anarchy, that they don't see it rushing towards us either.

And the people will not stand for it. One day, I am certain the judges are going to be squashed. The Supreme Court just has to declare some moral law an unconstitutional taboo, and the people will say: "enough." Perhaps it'll be age of consent laws. Perhaps it'll be incest. Who can say? But it will come, mark my words. And then everyone who put their faith in the courts will remember the day that those black robed bastards were stripped of their power, and the Judicial Branch became once again the "least dangerous" of all government.
5.17.2007 1:33am
loki13 (mail):
Daniel950,

Thankfully, I think your day will never come to pass. Despite the scaremongering tactics employed by those like you, the judiciary continues to hold the highest public estimation of any of the three branches in American public life.

I think your quick dismissal of the 'blue-eyed' law is indicative of the emptiness of your rhetoric. Equal protection is to protect all (discrete, insular) minorities. Even though it was passed during reconstruction, it does not just apply to blacks. Are indians (American, East, and West) unable to receive the equal protection of the law? Asians? Arabs? Will you extend it to all races? What about religion? Gender?

The greatest danger in a democracy is, of course, the momentary passions of the people. Which is why we have several anti-democratic features built into our system of government, starting with the Senate and ending with the Supreme Court. If you do not like a Supreme Court opinion, and you love the will of the people, you can always pass an Amendment... which is how the 11th was passed.

But in the meantime, I hope you take the time to broaden your horizons and absorb more than just overblown Scalia dissents and 'Justice Sundays' before maing another overwrought post. The judiciary has been destroying America.... well, since Chisolm (Jay Court), through the massive Jefferson/Marshall battles (Federalists will be usurping Democratic/Republican Power by legislating from the bench) and somehow managed to survive.
5.17.2007 10:12am
Randy R. (mail):
"In fact, the idea that a ban on contraception is somehow unconstitutional is flat-out ridiculous."

then Griswold v. Conn. was flat out ridiculous.

As for the rest, it's clear that you think it's okay to find laws against blacks unconstitutional, but laws against gays perfectly okay. Fortunately, even a majority of Americans think otherwise. And that gets to the nugget of this argument -- you simply hate the fact that gays are getting rights through the courts.
5.17.2007 12:10pm
Randy R. (mail):
This is a blog for libertarians. Most libertarians believe that gov't should butt out of people's lives. We don't care for whether a majority or minority of the people want to meddle in my life, and it really isn't their business whether I use contraception, whether I have love a man, and so on.

What I suggest for people like you is to worry more about your own lives than worrying about what I do in my own time. And that should be the model for legislatures everywhere. Then maybe we wouldn't have problems with the courts.
5.17.2007 12:13pm
Daniel950:
Loki,

I think the greatest danger of democracy is social self-suicide, because the people have become accustomed to being led instead of being the leaders. The Courts are telling us what to do nowadays. They rule this country.

The Constitution is a foundational document meant to create the system. It is not a document to respond to the Supreme Court and elitist judges, who should not be ruling us like they are. Apart from foreign policy, they run the country. There is nothing they haven't achieved power over.

Randy,

Griswold WAS ridiculous. Glad you picked up on that. I do hate the fact that gays are "getting" rights through the courts, since the courts have NO AUTHORITY to do that. I wouldn't give a crap if gays "got" rights through the PEOPLE. But apparently you've concluded we're too darn bigoted to ever do that. And somehow, I'm the bad guy? Please.

I don't worry about what you do in your own time, but I do worry that the courts are destroying society. Their power is all but absolute, and it's supremely ironic that a bunch of libertarians who hate concentrated power in government can't see that.
5.17.2007 12:23pm
loki13 (mail):
Daniel950,

I understand (I do) your viewpoint. But the courts are an anti-majoritarian instrument in both the area of civil liberties and equal protection. Equal protection applies to more than just blacks, as I believe you would be willing to acknowledge.

The question on the floor is, who else should receive the equal protection of the laws? While you rail against decisions protecting homosexuals, neither Lawrence nor Romer was a decision that protected homosexuals as a class. Currently, they are not a protected class. I happen to believe that they should recieve equal protection (discrete and insular minority, w. immutability, political powerlessness, and history of discrimination) but you do not. Fair enough.

The overall problemn I have with your argument is it is the same argument used by Falwell and others during the Brown and Loving era. This is when the conservative backlash against the courts began. Because it is less politically palatable today to target blacks, they simply moved the target to homosexuals. But the animus (Romer) behind the attacks is the same. Why should a minority be forced to get their equal rights through 'the people'? You could make the same argument if a law based on a person's ethnicity was passed- why, arabs should be forced to get their rights from 'the people' as well (the 14th was about blacks, not arabs). But the tyranny of the majority is something to be feared in a minority, and any law based on such immutable classifications such as these should be odious and suspect.
5.17.2007 2:56pm
Randy R. (mail):
Loki: Thanks for the support, but I fear you are wasting your breath. Often I encounter people who claim that they don't care what two men do in their own bedroom, but -- and the but always means that these same two men don't get any of the rights that anyone else enjoys, such as right to be free of discrimination in the workplace and living quarters, right to marry, right to anything at all.

I guess the thing is that it is no longer fashionable to simply say, I hate gays, and I think they are threat to our society. That makes you sound like racist, only against gays. So they say they don't care about gays, but then they want laws that prohibit us even from having sex in our bedrooms!

It plain old homobphobia, dressed up in legal language. Danial obviously hates the fact that gays are getting respect, both in society and in the courts, and nothing will change his mind about that.

So I won't bother.
5.17.2007 10:50pm