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Will Conservatives Try to Block a President Obama's Judicial Nominees?

MSNBC wonders whether conservative groups will mobilize to defeat controversial judicial nominations if Senator Obama is elected president. I hope not. While I doubt a President Obama's nominees would be much to my liking, I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).

As Alexander Hamilton explained in Federalist 76, we are likely to get better nominees from a single decision-maker (the President) than a committee, and the primary purpose of Senate confirmation is to place a "check upon a spirit of favoritism in the President" and "to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." His concern was cronyism, not differences in judicial philosophy. Allowing the Senate to have a greater role, he warned, would encourage an undue focus on narrow and parochial concerns, and I think that is what we've seen as the confirmation process has become more politicized. Senators spend hours trying to get nominees to tip their hand on specific issues or cases, whereas recent Presidents have largely focused on a prospective judge's overall judicial philosophy. In my view, the latter is the better way to do it.

So if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight. This is how most Republicans treated President Clinton's nominations of Stephen Breyer and Ruth Bader Ginsburg, and equally qualified Obama nominees deserve nothing less. If this means that a President Obama gets to place several quite "liberal" jurists on the bench, so be it. Republicans have long argued that Senate Democrats have treated President Bush's judicial nominees unfairly. They're right, but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse.

UPDATE: Several comments make good points and raise important questions that I will address in a follow-up post. What is odd, however, is that some commenters seem to believe that Republicans have never obstructed Democratic judicial nominees. This is silly. While Republican opposition to Bill Clinton's Supreme Court nominees was far less that Democratic opposition to both Bushes' Supreme Court nominees, the Republican Senate certainly obstructed some of Clinton's nominees to lower courts -- obstruction which led Senate Democrats to respond in kind, and then some. I've blogged on this extensively before. For round ups with links, see here and here.

Sasha Volokh (mail) (www):
I don't see a concern with actual issues as narrow or parochial; nor am I convinced that Presidents have been more big-picture than the Senate. Judicial ideology is hugely important -- these guys can do a huge amount of good or evil -- and I think it's eminently defensible to block the opposing party's nominees on those grounds.

On the other hand, what complicates matters is that these guys are in a repeated game where each party will occupy the White House, or the Senate, some of the time. Given that, it's possible that, while blocking judicial nominees may be the most moral thing to do in the short term, some sort of accommodation is better in the long term.

I think the need for long-term coexistence, and the concern that you don't want all of _your_ nominees blocked one day, may well justify a more accommodationist strategy; for me, the justification for accommodation doesn't derive from grand political theory, or from Alexander Hamilton, or from a belief about whether the President or the Senate is more big-picture about nominations.
9.13.2008 7:10pm
Soronel Haetir (mail):
At least at the SCOTUS level a lot would depend on who is being replaced, I think. There would be much less incentive in fighting a liberal replacement for Stevens or Breyer than there would if something happened to Scalia or Thomas.

I can imagine an absolutely vicious fight in the latter case.
9.13.2008 7:16pm
Kazinski:
That sticks in my craw, but of course you are right. If Obama wins, then his qualified nominees, short of William Ayers, should be confirmed for the bench. And that includes the Supreme Court.

I hate not being a hypocrite.
9.13.2008 7:19pm
frankcross (mail):
Sasha's right except for worrying about accommodation, I think. An opposition Senate has and will let plenty of nominees through. Just not those more ideologically extreme. The game is played where Senate opposition compels the Administration to appoint more moderate judges than it might otherwise prefer, in order to gain confirmation. That's not so awful.
9.13.2008 7:24pm
TMac (mail):
In politics, those who set the proper principled example lose. As long as the dems continue to block conservative judges and the reps continue to do the *principled* thing, the end result will be a judiciary dominated by liberals.
9.13.2008 7:27pm
EstaLaw:
Yes, Jonathan, you are right, I'm afraid. But I am concerned that the resulting dynamic is a one-way (leftward) ratchet. The left clearly can affect republican picks (see, Kennedy after Bork; see also Souter), causing the court to remain further to the left than it otherwise would. The right's principles ensure that this leftward force goes unchecked.
9.13.2008 7:32pm
Calculated Risk:
A couple of points:

(1)
If Alexander Hamilton and the Founders wanted to limit the Senate's advise and consent role to non-ideological grounds, they should have written that in the Constitution. In the meantime, we should go by what the Constitution actually says, not what you wish it said.

(2) That Hamilton listed some reasons to justify the Senate's advise and consent role, you cannot assume that those were meant to be the only reasons. This is especially true in light of the fact that the Federalist Papers are not legal documents, but instead political articles meant to persuade.

If I give reasons 1, 2, 3 that policy X is desirable, I might feel that is sufficient and not go on and on about every other possible reason that policy X might be desirable. It doesn't mean that reasons 4, 5, and 6 are not also desirable outcomes of adopting policy X.

(3)
You obviously don't know much about history. George Washington's nominee to the Supreme Court, John Rutledge, was denied confirmation to be Chief Justice in part for political reasons. In particular, because he gave a speech critical of the Jay Treaty.

(4)
Your theory is clearly out of whack with original meaning originalism, something that I thought was big with you VCers.

Let's look at the plain words of the Constitution in Article II concerning the Presidents power and the Senates role in the confirmation process.


He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court


Well, according to the plain meaning of the text at the time of the ratification of the Constitution, there are absolutely no limitations on the grounds upon which the Senate can withhold its consent. None. It could have said advise and withhold consent for only those nominees who are unqualified or cronies. But it doesn't say that. It just leaves consent unqualified.

I don't see how you can square your claim to be an original public meaning originalist with reading in your own special and favored limitations into the Constitution.

Either you are not really a public original meaning originalist, or that particular approach to interpretation does not in fact do anything meaningful to limit discretion in interpretation.
9.13.2008 7:38pm
Clayton E. Cramer (mail) (www):
I agree with the other commenters here: if the left was prepared to be as respectful of Republican choices as Republicans have been of Democratic choices, then I wouldn't have a problem with this. Watching the disgraceful situation with Clarence Thomas makes me disinclined to give the benefit of the doubt to any Democratic choice--especially a President as far to the left as Obama.
9.13.2008 7:42pm
Jerry F:
Conservatives will not try to block Obama's judicial nominees because the President appoints judicial nominees and Obama will never be the President.

But if Obama is President, conservatives should do the same to him as the liberals have been doing to the Republicans in the past. I am all for Republicans abiding by higher standards (no one would want to live in a country where the standards of the average Democrat are the prevailing standard), but not when doing so would amount to a collective suicide pact.
9.13.2008 7:45pm
Sasha Volokh (mail) (www):
Calculated Risk: I don't think Jonathan was making an argument about constitutionality -- I think he was just making an argument about what's good political ethics, which included arguments from Hamilton as persuasive authority, not some sort of binding precedent.
9.13.2008 7:46pm
taney71:
Anyone remember Janice Rodgers Brown, Estrada, or any number of lower court nominees. It's going to be war and a pretty bloody one.
9.13.2008 7:46pm
Sasha Volokh (mail) (www):
I should note that the view expressed by many "pro-obstructionist" commenters is different from my pro-obstructionist view, as expressed in the first comment.

Many of the commenters are saying, in essence: Accommodation is great, but the Democrats deserve payback for their past behavior, perhaps because otherwise we'll get leftward drift.

My pro-obstructionist argument would hold that even if the Democrats had been perfectly accommodating, there's a good argument for Republicans to begin obstructing judicial nominees.

Of course, what I said about the dynamic benefits of accommodation -- with the repeated game and all -- still holds. So if Republican accommodationism can lead to an equilibrium where everyone accommodates, that might end up being fine (but whether such an equilibrium is better than an obstructionist equilibrium is still open to debate). Plus, if Republican accommodation will have no effect on Democratic behavior, then there's no reason not to be obstructionist, since there will be no long-term benefits from accommodation.
9.13.2008 7:50pm
Sasha Volokh (mail) (www):
Calculated Risk: Plus, not everyone at the VC is an original public meaning originalist. I'm not an originalist, for instance. And I'm not sure whether Jonathan has revealed his hand in this regard. So even if Jonathan were making an argument about constitutionality, there may be no inconsistency with his previously expressed views, as you suggest there is.
9.13.2008 7:52pm
donaldk:
Let's suppose that the Democrats win the election. Then, if deo volente, Stevens and/or Ginsberg is the first to go, we filibuster every liberal offered, and let the Court go on
with eight or seven members.

If the Democratic senators agree to pass a Senate rule that judicial candidates shall not be unreasonably held in committee, and that no filibuster of judicial nominees be permitted, then will be the time to be "principled."
9.13.2008 7:53pm
Anon21:
I guess this all works on the assumption that conservative Senators will have the means to block a President Obama's nominees. Certainly the filibuster is a potent tool, but it's considerably more difficult to deploy when you're sitting on 43 or 44 seats rather than 49. If Obama is elected, I expect his appointments to sail through the Senate. Assuming the usual midterm correction against the incumbent party, one would assume that judicial confirmations would tend to be more contentious during the second half of his term. I'm rather expecting Stevens and Ginsburg, if she's so inclined, to jump ship at the end of the first October Term after Obama is elected, though, and further Supreme Court vacancies while Obama is in office, even were he elected to a second term are not particularly likely.
9.13.2008 7:55pm
Greg S. (mail) (www):
If liberals fight conservative justices but conservatives do not fight liberal judges the result would be to reward the liberal obstructionism with courts biased to their viewpoint. Somehow that does not seem like an outcome conservatives should be expected to embrace.
9.13.2008 7:58pm
CDR D (mail):
The people have figured out the judicial confirmation game. And a game it is. The people have figured out that the Constitution means whatever they think it ought to mean. Article V be damned.

The Senate will be inundated with irresistable constituent pressure, no matter who is elected.
9.13.2008 8:04pm
David Warner:
Then again, Obama might nominate a young leftist who over her career on the bench becomes disenchanted with leftist ideas, a reverse Stevens or Souter.
9.13.2008 8:08pm
Jim at FSU (mail):
Sorry, the judicial confirmation genie is out of the bottle. If conservatives refuse to play the game, the leftists win by default.


Conservatives have no choice but to do everything short of breaking the law to ensure that Obama doesn't get to nominate anyone he likes.
9.13.2008 8:08pm
Norman Bates (mail):
When Bork becomes a Supreme Court justice then let the accomodation begin. The Democrats started this and have continued it into the present. Anybody remember a fellow name of Pickering? The left should be made to face the consequences of their actions. It's up to them to make gestures of reconciliation. In politics it's the Silver Rule not the Golden that carries the day.
9.13.2008 8:16pm
DiverDan (mail):
I agree with those in favor of obstructionism, but for a reason completely different than revenge -- game theory states that the most productive strategy, over the long term, in a situation like this is "tit for tat". In other words, return the same treatment that you were given at your opponent's last turn. Since the Dems have been egregiously obstructive of Bush nominees, the only effective strategy is to up the ante, and let morality have the hindmost. It is up to the Dems to learn that their obstructionism has consequences. If only there were a Republican Member of the Judiciary Committee who was willing to replay the Joe Biden part.
9.13.2008 8:19pm
cboldt (mail):
-- I do not think the Senate should reject a President's judicial nominees on ideological grounds. --
.
The Democrats hold that rejection of a nominee by a minority of the Senate, for whatever reason, is justifiable, constitutional, and the proper thing to do. I urge the Republicans to adopt the same rules, lest they be run over.
9.13.2008 8:24pm
Jerry F:
Justices in the mold of Bork and Scalia follow the Constitution. If liberals seek to appoint left-wing activist judges who want to promote a liberal agenda (for example, by claiming that abortion or sodomy are constitutional rights), conservatives should do what they can to block them. Similarly, if conservatives sought to appoint right-wing activist judges who want to promote a conservative agenda (for example, by claiming that the Constitution requires states to ban abortion or sodomy), liberals should do what they can to block them. Of course, no conservative would argue that justices should promote a conservative agenda, so this is a moot point.
9.13.2008 8:26pm
Oren:

While I doubt a President Obama's nominees would be much to my liking, I do not think the Senate should reject a President's judicial nominees on ideological grounds.

Depends on the nominee. If a President Obama nominates a Souter or President McCain nominates a Roberts, then, neutral qualification issues notwithstanding, the Senate ought to confirm. If we get a Ginsburg/Scalia nomination, the Senate ought to be less deferential (at that point, it also becomes important who is being replaced -- if Scalia retires during an Obama presidency, I should hope he would have the tact to nominate a centrist consensus replacement).
9.13.2008 8:26pm
Oren:

When Bork becomes a Supreme Court justice then let the accomodation begin.

We'll accept a Bork if we get a Reinhardt (broadly speaking, since they are both too old to be nominated today). Or, in the interest of having some sort of comity, we could try to keep extremists of both stripes off the courts.
9.13.2008 8:30pm
Oren:

The Democrats hold that rejection of a nominee by a minority of the Senate, for whatever reason, is justifiable, constitutional, and the proper thing to do. I urge the Republicans to adopt the same rules, lest they be run over.

Of course they should. Supreme Court nominees should be broadly acceptable to at least 60 Senators or they shouldn't really be on the court. That applies across the ideological spectrum.
9.13.2008 8:33pm
Brett:
I come at this not from a political ethics perspective, but from a game theory perspective. Republicans should embrace a tit-for-tat approach to Democratic presidents' judicial nominations: when Democrats show good faith, then return the gesture, but when Democrats obstruct, then obstruct in return. You can argue until you're blue in the face that Republicans shouldn't sink to Democrats' level, but approaching appointments in a manner more accommodating than tit-for-tat just makes you a sucker.
9.13.2008 8:33pm
Reinhold (mail):
Good post. That is actually one of my concerns with Obama. He had no business voting against John Roberts.
9.13.2008 8:39pm
bobby b (mail):
Dissent.

Your solution will simply allow the courts to become packed with left-leaning judges. While you're busy claiming a mantle of honor for having followed the letter and spirit of the Constitution, the reconstituted courts will be re-writing it through reinterpretation, using the powers granted to them within that document.

Will you feel honorably bound to follow the letter and spirit of their new and very different product? The one that will likely hold that "No person shall . . . be deprived of life or liberty without due process . . ."?
9.13.2008 8:41pm
Oren:
Brett, what was the Senate's approval of Roberts and Alito if not good faith?

Incidentally, game theory also suggests that the opposition party not appear too solicitous to confirm more ideological nominees, even if they ultimately approve them. Thus the votes against the confirmation of Alito despite having a large number of dems break ranks to support cloture (had they closed ranks, the nomination would have been filibustered) are quite logical -- we'll allow Alito but we are quite uncomfortable with anyone further to the right. That strikes me as precisely the right tone for the opposition -- the President gets to nominate someone ideologically compatible but still within the bounds of mainstream jurisprudence (no Borks, no Fortas').
9.13.2008 8:41pm
cboldt (mail):
-- Supreme Court nominees should be broadly acceptable to at least 60 Senators or they shouldn't really be on the court. --
.
60, or whatever number the Senate decides to set for cloture, under its own rules. Likewise, withholding of a blue slip is within the rules, and that tool whould also be used by both sides.
9.13.2008 8:43pm
Alice Home (mail) (www):
Fed # 76 assumptions re preference of single person (prez) appointing judges has assumptions no longer relevant:
"Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment."
Bush???
9.13.2008 8:44pm
Oren:
Bobby, given the undoubted right for the President to nominate ideologically compatible justices (Roberts and Alito are certainly in Bush's comfort zone), how far to the left are we talking about before opposition kicks in? Would you seriously consider supporting a filibuster of Sotomayor or Tatel, for instance?
9.13.2008 8:45pm
cboldt (mail):
-- no Borks, no Fortas' --
.
I honestly don't know the answer to this -- was Fortas' jurisprudence a problem? Or was the issue with elevating Fortas to CJ more in the vein of ethical lapse?
9.13.2008 8:45pm
Oren:

60, or whatever number the Senate decides to set for cloture, under its own rules. Likewise, withholding of a blue slip is within the rules, and that tool whould also be used by both sides.
No argument there.

Really, I'm for anything that makes the nomination process as difficult as possible. Sucks for the judges that have to go through the ringer (but they mostly get a nice reward) but good for the country -- anything to prod the President into nominating moderates.
9.13.2008 8:47pm
Elliot123 (mail):
I think Mr. Alder's post suggests what could have been. Unfortunately, we passed the point where it could have been long ago. Maybe in fifty years, but not today.
9.13.2008 8:48pm
CherryGhost:

if the left was prepared to be as respectful of Republican choices as Republicans have been of Democratic choices


I seem to remember highly qualified Elena Kagan of Harvard Law School being held up in the Republican-controlled Judicial Committee and never actually getting a floor vote. I don't think either party can truly claim the high ground on this one over the last 14 years. (Hopefully, this thread doesn't break down to apple and orange throwing.)

That said, Obama's potential judicial nominees scare me.
9.13.2008 8:51pm
gattsuru (mail) (www):
I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament


I'm not sure that, for those you are trying to console, that there is a vast gulf between the ideological grounds that you hope the Senate would avoid and the "qualifications and temperament" role you hope the Senate would take up.

To take an issue I personally happen to have a fairly strong stance on, look at firearms. Senator Obama has made it rather clear that he believes a fairly widespread ban on firearms to be lawful and Constitutional. Presenting a judicial nominee that believes the same thing would cast rather bad lights on that individual's temperament, defined as "a person's normal manner of thinking, behaving or reacting" -- managing to read a fairly basic statement to that degree does not make a good lawyer. I'd even argue it reflects poorly on the person's "tendency to become irritable or angry" : the only way to logically hold both the necessary and proper clause while simultaneously believing an ban on the sale of federally transferred firearms with *five miles* of a school or park, or a ban on the private ownership of firearms within privately owned buildings (even by the building's owner) within a six square miles containing a half of a million people, without assuming a rather impressive lack of self-control or ability to control anger within the common populace including the judge himself or herself.
9.13.2008 8:51pm
Oren:
cboltd, how about "no Borks, no Reinhardts" as an alternative rule? "No one to the left of Breyer or the right of Scalia" works as well (I suppose we can grandfather in Ginsburg and Thomas).
9.13.2008 8:54pm
Oren:

That said, Obama's potential judicial nominees scare me.

As I said before, Sotomayor and Tatel are both high on the list, very qualified and no more liberal than Roberts &Alito are conservative.

Maybe he would nominate someone to the far left but I can just as well see him nominating a moderate, especially if it's Scalia or Kennedy that retires first.
9.13.2008 8:56pm
DangerMouse:
Let's see... if the Infanticide Candidate becomes president, should the Republicans confirm his judicial nominees?

Um, no.
9.13.2008 9:08pm
DangerMouse:
Adler: Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).

If "temperment" means an understanding of what it means to be a judge, then all liberal nominees would fail, because they don't have the correct understanding. Their understanding of a judge's role is to impose policy outside of democratic checks, while the correct understanding is to be an umpire and write decisions that are in line with the original understanding of the law or the Constitution.
9.13.2008 9:10pm
cboldt (mail):
Oren: -- how about "no Borks, no Reinhardts" as an alternative rule? --
.
How about blue slips and minority objection, no reason needing to be given for objection (other than "concern" and optionally, whatever passes for grounds to object), and everybody can lobby their Senators as they see fit. That's the existing situation as endorsed by Democrats - it should work for Republicans just exactly the same way, or else it isn't fair.
9.13.2008 9:21pm
Brett Bellmore:
Does "block" mean prevent a vote, or vote against? I think Presidents are most certainly entitled to have their nominees voted on, they are in no way entitled to have their nominees confirmed.

And ideological concerns are no small matter, when a major ideological divide is whether Justices should uphold their oaths of office by enforcing the constitution we have, or violate it by enforcing in it's place the constitution they think we ought to have.
9.13.2008 9:31pm
Esquire:
So where exactly is the line between "temperment/qualificiation" vs. "philosophy/ideology"? Aren't they intertwined at some level?

Isn't the conservative view of the judiciary that judges fundamentally violate the very essence of their role when they deviate from the enacted meaning of codified law? If so, how can the right accept this as a legitimate alternative viewpoint?

Granted, the political sphere also has to fraw lines between issues where it is and is not "OK to disagree." Abortion is on one side of that line; suffrage, for example, is on the other...
9.13.2008 9:34pm
Randy R. (mail):
Funny, I don't recall much opposition to Alito and Roberts -- they sailed right through the Senate without any filibusters at all. When Miers was floated, she was fought just as much by the right as by the left.

But please, Clayton and Brett, don't let facts get in the way. And hey, you might get lucky. Perhaps Obama will elect someone for the Supreme Court who is stunningly incompetent, you know, in the mold of Sarah Palin, and then you will have real grounds for fighting such a nomination.

Of course, it would make you look like hypocrites, since lack of experience and incompetence for high levels of office are practically a requirement nowadays, at least for Republicans.
9.13.2008 9:35pm
Esquire:
I should clairify that I can see allowing different views about what the framers meant; I just have a harder time tolerating different views about whether we should care...
9.13.2008 9:35pm
Perseus (mail):
His concern was cronyism, not differences in judicial philosophy.

His concern in that paper may have cronyism, but don't think for a moment that Hamilton and the Federalists didn't do their very best to stack the judiciary with judges with their judicial philosophy.

I also agree that a bit of tit-for-tat--particularly given Senator Obama's votes against Roberts and Alito--is a good idea to achieve some sort of balance.
9.13.2008 9:38pm
Anon21:
Oren: your rule would only make sense if Breyer and Scalia were somehow sensible anchors for an ideological spectrum of "moderates." In fact, Breyer is the most conservative Justice appointed by a Democrat in decades (since about White, by my judgment), while Scalia is the second-most conservative Justice appointed by any President in decades (since about the 1930s, by my judgment). Pick or choose: no one to the left of Stevens or to the right of Scalia (still not really fair, Stevens being a moderate liberal by historical standards), or no one to the left of Breyer or the right of Kennedy. Otherwise, you're just skewing "moderate" to mean "conservative."
9.13.2008 9:38pm
Jim at FSU (mail):
I think conservatives should filibuster all Obama nominees (if he wins) and when pressed for a reason, simply recite the bullshit reasons Obama gave for voting against Roberts.
9.13.2008 9:43pm
PersonFromPorlock:

...but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse.

There's 'principled' and then there's 'gullible'. Trust me on this, nobly renouncing tit-for-tat means lots more tat.
9.13.2008 9:45pm
FlimFlamSam:
Conservatives should not disarm themselves in the judicial appointment war. They should use the same procedural tools that the Democrats have. The solution is for both parties in the Senate to come together and remove some of the procedural roadblocks to confirmation, not for unilateral conservative disarmament.
9.13.2008 9:55pm
RKV (mail):
"Justices in the mold of Bork and Scalia follow the Constitution." Bork? No. Not even close. Let's just take the 2nd Amendment as an example (and this is particularly poignant post-Heller). Bork has argued that the Second Amendment merely guarantees a right to participate in a government militia (Life Magazine, Vol 14, No. 13). We dodged a bullet when Bork was "borked."
9.13.2008 9:58pm
FlimFlamSam:

what was the Senate's approval of Roberts and Alito if not good faith?


Political outmaneuvering by a smart Bush White House (and he got--and took--a mulligan on Harriet Miers).
9.13.2008 10:00pm
J. Aldridge:
I liked the original idea of giving the senate a few days to reject the nomination, else the appointment would be official if not rejected.
9.13.2008 10:04pm
Brooks Lyman (mail):
"Will Conservatives Try to Block a President Obama's Judicial Nominees?"

Given the way the "liberal" hsve been blocking and trying to block conservative judicial nominees, I must say, that I certainly hope so. Sauce for the gander and all.
9.13.2008 10:13pm
Oren:

I liked the original idea of giving the senate a few days to reject the nomination, else the appointment would be official if not rejected.

Great, see how many votes you can get in the Senate for that amendment.


I also agree that a bit of tit-for-tat--particularly given Senator Obama's votes against Roberts and Alito--is a good idea to achieve some sort of balance.

Absolutely. Then again, double points for the Senator if he nominates a left-centrist and diffuses the whole thing.
9.13.2008 10:13pm
Oren:

The solution is for both parties in the Senate to come together and remove some of the procedural roadblocks to confirmation, not for unilateral conservative disarmament.

Or both parties stand together and insist that the President advance mainstream judges?
9.13.2008 10:14pm
Daryl Herbert (www):
Why would we want more far-left judges on the court? We should obstruct and force them to compromise.
9.13.2008 10:21pm
J. Aldridge:
Oren said: "Great, see how many votes you can get in the Senate for that amendment."

That would be as nil as getting James Madison or Thomas Jefferson approved by Senate Democrats to sit on the Supreme Court today.
9.13.2008 10:24pm
Doc W (mail):
Let's hope to God that a collectivist gun-ban fruitcake like Obama isn't picking Supreme Court justices.

Let's hope to God that an anti-free-speech warmonger like McCain isn't picking Supreme Court justices.

Oh my...

Left-right sniping on this issue is virtually devoid of substance. The justices have a responsibility to enforce the Constitution. The Constitution limits the federal government to a few enumerated roles. Imposing a national socialist retirement plan is not among them. Nor is meddling in the market for medicine. Nor setting a national drinking age. Nor interfering with people's opportunity to spend their own money broadcasting their opinion about political candidates. Nor using taxes to bail out or stand behind profitable firms. Nor any role in subsidizing or regulating education. Etc, etc. Nobody is fit to serve who will not enforce the Constitution, and that means striking down unconstitutional programs and laws.
9.13.2008 10:27pm
cboldt (mail):
-- Or both parties stand together and insist that the President advance mainstream judges? --
.
The question isn't what to do when there is unanimous agreement. It's how to proceed when faced with concern, or even objection, from one or more senators. I urge the GOP to use Senate rules and tools in exactly the same way the Democrats have used them, without reservation, even when the result is interminable delay and/or "obstruction."
9.13.2008 10:28pm
Silly:
Well, I certainly hope that, should Obama win and the Dems keep control of congress, the Republicans would make it clear that they have no problem coming together to block nominations. I'd like to think that if they show they mean it enough, it will force an Obama administration to nominate qualified centrists (even left-ish centrists) that are acceptable to both parties. And these people DO exist. There are certainly several Dems I can think of that I wouldn't have an issue seeing on the benches.

If his administration can't bring itself to do this, then I would expect the Republicans to pretty much shut down judicial nominations. It's always a political risk, but after the stuff I've seen from the Dem side for the past several years, with quality Republican nominees who go nowhere, I think there's more for the Republicans to gain than lose in doing so.
9.13.2008 10:29pm
Russ (mail):
I have to say I agree with the pro-obstructionists here. We've tried "principled" for years, only to never see it reciprocated. The vaunted high road has resulted in a more liberal judiciary.

I'll go back to good faith when I see some give on the left. Until then, I have no problem with no one on the bench.
9.13.2008 10:29pm
Brett Bellmore:

Funny, I don't recall much opposition to Alito and Roberts -- they sailed right through the Senate without any filibusters at all. When Miers was floated, she was fought just as much by the right as by the left.


And quite properly: Miers was a hack, and it's disgraceful that Bush wanted to put a hack on the Supreme court. But that's Bush for you: Only doing the (sorta) conservative thing once all alternatives have been exausted.

The filibusters, of course, were at the circuit level and below, not the Supreme court. And I wouldn't support filibustering at any level. As I said, I think Presidents are entitled to timely up/down votes by the ENTIRE Senate for their nominees. What they aren't entitled to is "yes" votes.
9.13.2008 10:39pm
jccamp (mail):
I agree with Jim from FSU. It's not demonstrative of fine ethics or a higher frame of mind to give away anything for free - especially USSC appointments, it is simply foolish. There should be consequences for the past few years of judicial non-appointments, even at the District Court level. Senate Republicans under an Obama administration should agree to nothing without something in return, such as more moderate nominees for critical court positions.

It irks me to suggest such, since I want the GOP to be above these tactics, but, in the end, USSC appointments may be the single greatest difference between and a Dem and GOP president.

BTW, and off post, I wonder why MSNBC didn't frame the issue as wondering of the GOP would be as obstructionist as the Democrats have proven to be, instead of "Would there be a Republican filibuster of an Obama nominee — after all the years Republicans spent saying "every nominee deserves get an up-or-down vote"?" You know, like "After all the years of filibuster, will the Dems suddenly demand 'every nominee gets a vote'. "

I don't really wonder at all. It's fairly typical. Dems are cool, Republicans will probably prove to be hypocrites.
9.13.2008 10:44pm
jccamp (mail):
"Dems are cool, Republicans will probably prove to be hypocrites."

I meant to suggest that MSNBC presents the "news" this way, not that I hold with such.
9.13.2008 10:48pm
cboldt (mail):
I wonder why MSNBC didn't frame the issue as wondering of the GOP would be as obstructionist ...
.
That was a rhetorical "wonder," I presume.
.
Still, to parrot the Democrats, "it's not obstruction when the tactic is provided for in the rules." The Democrats won this one. Nominees aren't entitled to an up or down vote, unless the Senate agrees to give one.
9.13.2008 10:50pm
Oren:

I have to say I agree with the pro-obstructionists here. We've tried "principled" for years, only to never see it reciprocated. The vaunted high road has resulted in a more liberal judiciary.

Except for the fact that Bush nominated and the Senate confirmed two fairly conservative (but still, I would argue, mainstream) nominees. And to say the court hasn't swung right in the past 2 decades is dishonest, at best.

jccamp, I highly doubt Reid will insist that every nominee gets an up or down vote. He seems like more of a parliamentarian than that.
9.13.2008 10:55pm
Harmon Dow (mail):
The problem, I think, is that Democrats tend to think of the Supreme Court as a political body which participates in the development of public policy, whereas conservatives tend to think of it as a kind of arbiter of the rules.

So when a Democrat nominates a Justice, that person is probably someone who will, when on the bench, use his or her position to change the existing political rules to ones more favorable to Democratic aims, On the other hand, when a Republican nominates a Justice, that person tends to be someone who will want to sustain the rules, not change them.

The result is that unless the conservatives figure out how to block liberal nominees, the Court drifts leftward toward being a political arm of government, like the Congress or the presidency.

Yes, I'm simplifying, but it is to make the point that neither party really has a choice. Once the Court is understood by either of the parties as just another political institution, both parties have to deal with it that way.
9.13.2008 11:02pm
Dave N (mail):
Some brief thoughts.

First, the Democrats will accuse Republicans who filibuster as being more partisan than they were, since the apparent "rule" for filibustering lower court judges was that the Democrats on the Judiciary Committee had to be unaninimously opposed to the choice.

If you look at the makeup of the Senate Judiciary Committee, the following Democrats and Republicans serve.

Democrats: Leahy, Kennedy, Biden, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse.

Republicans: Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Bronwback, Coburn.

What is noteable, IMHO, is that the most "conservative" member on the Democratic side is Diane Feinstein. As a result, there is a higher likelihood of Judiciary Democrats voting as a bloc than Judiciary Republicans, which includes arguably the Senate's most liberal Republican and two others who can legitimately be called "mavericks": Grassley and Coburn.

I further note that President Bush worked extensively with Senator Feinstein on 9th Circuit picks--and that as a result, the Ninth Circuit has only one vacancy right now. I am unaware if any other Circuit has just one vacancy.

Second, I suspect the problem could be resolved right now if Senators Obama and McCain jointly pledged to support the so-called nuclear option regardless of which was elected President. Of course, judicial selections are not an area where Senator Obama has actually shown any interest in bipartissanship, so I am not holding my breath.
9.13.2008 11:03pm
Jon Roland (mail) (www):
The stakes are too high to expect the opposing sides not to obstruct candidates that are clearly progressive or social-conservative. Perhaps a deadlock will induce them to accept libertarians, that is, original public legal meaning originalists.

At the 2005 Federalist Society Convention, in a question from the floor to Sen. John Cornyn (R-TX), I proposed increasing the size of the USSC to 27 (I now propose 28 to have a spare). I got a moment of silence, followed by laughter and applause over that one. In a later session, a questioner asked about a USSC comprised of Randy Barnetts, and got an ovation.

Now now envision increasing the USSC to 28 and appointing all libertarians. (I have a little list.) Given what Palin said about the Alaska Constitution being her bible for governing, a President Palin might do it. We can dream, can't we?
9.13.2008 11:05pm
jccamp (mail):
"Still, to parrot the Democrats, "it's not obstruction when the tactic is provided for in the rules." The Democrats won this one. Nominees aren't entitled to an up or down vote, unless the Senate agrees to give one."

I agree with this, although I do not wonder that should Obama be elected, we may see a sea-change on this subject from Senator Reid et al.

And yeah, I don't really wonder at all why MSNBC doesn't mention that both parties may, post election, suddenly discover validity in the other side's pre-election arguments.
9.13.2008 11:05pm
Oren:

Still, to parrot the Democrats, "it's not obstruction when the tactic is provided for in the rules." The Democrats won this one. Nominees aren't entitled to an up or down vote, unless the Senate agrees to give one.


Again, what makes you think Obama, having been a Senator during that time, doesn't realize this fact and nominate a center-left candidate that has broad appeal? Same goes for McCain.

For folks like me, that like where the court sits right now, this election is fantastic.
9.13.2008 11:07pm
Oren:

Given what Palin said about the Alaska Constitution being her bible for governing, a President Palin might do it. We can dream, can't we?

Sorry, don't buy that dream. She seems just as likely to appoint a Bork-esque culture warrior -- someone inimical to the libertarian spirit.
9.13.2008 11:15pm
jccamp (mail):
Oren,

I think you may be correct. A number of senators have taken the long view, in that what you demand and want today may be anathema tomorrow. Demanding or providing votes on every judicial nominee does weaken the Senate's ability to affect the nomination process. Reid is probably within that group with a long view.

But I do presume at least some within the Democratic party will be demanding up-or-down votes on all nominees, assuming an Obama presidency.

I included him by name in that post mainly because I don't care for him all that much. I'll rein in my exuberance a little more in the future.
9.13.2008 11:16pm
Oren:
I should slightly amend by 10:15, I think it's possible that Palin would nominate acceptable right/center jurists but I'm not going to bet the farm on it.
9.13.2008 11:17pm
tvk:
I am curious about how you might define "temperament" and "understanding of what it means to be a judge"; because it seems to me an exception that could easily swallow up the rule. Conservatives think that liberal judges have bad temperment because they usurp the proper role of the judiciary and "legislate from the bench." Liberals think that conservative judges have bad temperment because they fail to defend the poor, oppressed and weak against majoritarian tyranny, which liberals see as the preeminent role of a judge. The objections to the other side's ideology can easily be recast into an objection to "temperment" and "not understanding the role of a judge," since the two sides fundamentally disagree about what the role of a judge is.
9.13.2008 11:20pm
Oren:
jccamp, well taken. The hope is that the rest of the dem Senators will restrain the rest of their party. Although the 'Gang of 14' agreement was only valid in the 109th Congress (where it was 55-45 Rep), it seems logical that a similar consensus will emerge in the 111th (which will likely be 55-45 +/-3 Dem).
9.13.2008 11:20pm
jccamp (mail):
Oren says "again, what makes you think Obama, having been a Senator during that time, doesn't realize this fact and nominate a center-left candidate that has broad appeal? Same goes for McCain.

For folks like me, that like where the court sits right now, this election is fantastic."


I hope he is correct. The USSC seems to be fairly balanced right now. However, the cynic in me wants to make allowance for original sin, so to speak, and suspect neither candidate may be able to restrain the off-center wings of the respective parties and control the process.
9.13.2008 11:23pm
Oren:
tvk, to me, it's a question of degree (that, and I don't think the resolution to your fundamental question is binary). Judges like Bork and Reinhardt are simply out of the mainstream in their positions on the basic ingredients of US law. I don't object to Presidents shaping the role of the court through their choices, I just think they ought to do so within the confines of mainstream opinion.
9.13.2008 11:26pm
Oren:
jccamp, it's for the that we have the institutional monkey-wrench that is the US Senate -- it takes only 7 Senators from each side to hold the center.
9.13.2008 11:30pm
Jon Roland (mail) (www):
Oren:

I should slightly amend my 10:15, I think it's possible that Palin would nominate acceptable right/center jurists but I'm not going to bet the farm on it.

We can get a clue from the judicial appointments she made in Alaska. I haven't had a chance to read any of their opinions, but libertarian friends in Alaska seem to like them a lot.
9.13.2008 11:36pm
D.R.M.:
If the American people elect Obama and Biden, then the American people can be understood to at least implicitly endorse the threshold for applying ideological tests to nominees applied by Obama and Biden in the Senate. Obama and Biden both opposed the confirmation both Roberts and Alito. Accordingly, even judges as qualified as Roberts and Alito should be kept off the court by Senate Republicans for ideological reasons.

If, on the other hand, the American people elect McCain, than the American people can be understood to at least endorse the McCain threshold for applying ideological tests to nominees. Accordingly, the Senate should confirm any reasonably-qualified nominee.
9.13.2008 11:45pm
Mike @ Naught Relevant (mail) (www):
From Mr. Adler's original post:

I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).

I agree. However, John Robert's seemed as qualified as anyone I have ever seen be nominated to SCOTUS and still was subject to a sham and demeaning hearin.

Even after Roberts appeared for days in front of those blowhards, sans any notes, he was still not unanimous. I don't think the Republicans make shows of the judicial hearing like the Dem's do.

Just my .02
9.13.2008 11:54pm
Oren:

I agree. However, John Robert's seemed as qualified as anyone I have ever seen be nominated to SCOTUS and still was subject to a sham and demeaning hearin.


Wow, you are going to complain about a nominee that was confirmed 72-28 to a position with life tenure because they hurt his feelings during a hearing? Roberts sailed -- his confirmation was assured from the second he was nominated.
9.14.2008 12:03am
David M. Nieporent (www):
Oren: your rule would only make sense if Breyer and Scalia were somehow sensible anchors for an ideological spectrum of "moderates." In fact, Breyer is the most conservative Justice appointed by a Democrat in decades (since about White, by my judgment),
Well, that sounds a lot more significant than it actually is; you're talking about a pool of five people. (Goldberg, Fortas, Marshall, Breyer, Ginsburg) Being the "most conservative" of five isn't exactly meaningful.

while Scalia is the second-most conservative Justice appointed by any President in decades (since about the 1930s, by my judgment). Pick or choose: no one to the left of Stevens or to the right of Scalia (still not really fair, Stevens being a moderate liberal by historical standards), or no one to the left of Breyer or the right of Kennedy. Otherwise, you're just skewing "moderate" to mean "conservative."
The problem is exactly the opposite: that liberal is being called moderate, and moderate is being called conservative. There's a one-way ratchet on the Supreme Court.

Liberal decisions are entrenched to the point where even "conservatives" accept them on stare decisis grounds (Clarence Thomas being the lone exception), while conservative decisions are never granted the same respect. So Breyer is "conservative" (for a Democratic appointee) only in that he doesn't move to the left as fast as justices of the past like Marshall, Scalia is "conservative" only in that he doesn't move to the left at all. But he doesn't move the court to the right, either.
9.14.2008 12:08am
Mike @ Naught Relevant (mail) (www):

Randy R said: Funny, I don't recall much opposition to Alito and Roberts -- they sailed right through the Senate without any filibusters at all. When Miers was floated, she was fought just as much by the right as by the left

Please! Was that before or after the adoption records of his children were ransacked? Or maybe when Mrs. Alito had to leave the room in tears after her husband was being grilled for what? Being in the Mafia? Being a bigot?
9.14.2008 12:12am
Syd Henderson (mail):
I'm not sure that the difference between rejection for ideology or temperament is clear cut. For example, was Bork rejected for ideology or temperament? It's not clear to me that the two were that different in his case.
9.14.2008 12:28am
Brian K (mail):
I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).

As recent polls discussed on this site show, "an understanding of what it means to be a judge" is ideological. as a result, your post strikes me as inserting ideology into judicial confirmations under the guise of nonpartisanship.

if i'm wrong, what is a non-ideological understanding of what it means to be a judge? and it can't be so broad as to be not useful (e.g. "a judge decides things")
9.14.2008 12:30am
Oren:

Scalia is "conservative" only in that he doesn't move to the left at all. But he doesn't move the court to the right, either.

Wisconsin v RTL, Heller, Morrison, Hudson, Stenberg were all moves to the right (all but one good decisions too). It's dishonest to say that the court hasn't moved to the right considerably since Warren.
9.14.2008 1:49am
Oren:

Was that before or after the adoption records of his children were ransacked? Or maybe when Mrs. Alito had to leave the room in tears after her husband was being grilled for what? Being in the Mafia? Being a bigot?

What is this, the Dr Phil theory of supreme court confirmation proceedings? Alito was confirmed because some dems voted for cloture and again his nomination -- people that opposed him allowed it to happen. As I said before, it's a logical move on the part of the Senate to make it clear that they do not accept nominees more extreme than Alito (who is at the boundary of my comfort level as well).
9.14.2008 1:53am
Oren:

Well, that sounds a lot more significant than it actually is; you're talking about a pool of five people. (Goldberg, Fortas, Marshall, Breyer, Ginsburg) Being the "most conservative" of five isn't exactly meaningful.

Since Breyer is probably to the right of Stevens and in the vicinity of Souter, you start to see the Breyer is precisely the kind of Justice that could be appointed by a President of either party. The dead ideological center of the Court (and the country, I would argue) lies somewhere in the Souter-Breyer-Kennedy triangle.
9.14.2008 1:57am
The General:
Obama has as much as said that he will appoint judges who aren't inclined to follow the written law and constitution, but rather some sense of "fairness" so long as the left-wing position wins.

While, I don't think the GOP will have the numbers to filibuster any of his nominees (at least not in the next Senate), and even if they did, they shouldn't, but they should make it their number one priority to make sure that each nominee gets a full airing and is put through the ideological wringer. They need to make sure, especially on the rather egregious Ginsburg clones that Obama would nominate, that the country knows that Obama is nominating left-wing wackos who aren't going to follow the law. Then, they should vote against them. But they shouldn't obstruct the vote, unless the Dems are trying to push thru nominees without sufficient examination, questioning, vetting and debate.
9.14.2008 2:29am
Oren:
"Everyone that disagrees with me is a wacko" -- it's the story of the internet.
9.14.2008 2:32am
David M. Nieporent (www):
Wisconsin v RTL, Heller, Morrison, Hudson, Stenberg were all moves to the right (all but one good decisions too). It's dishonest to say that the court hasn't moved to the right considerably since Warren.
I don't see how any of these moved the Court to the right. Where do you think the Court moved from?

Heller -- assuming that once one gets past all the caveats and concessions by Scalia, it actually has an effect -- certainly moved the law of DC to the right, but it didn't move the Court to the right. (The Court has never -- yes, including Miller -- said that the second amendment was a collective right.)

Wisconsin RTL (not Wisconsin v. RTL) didn't break any new ground; it merely upheld Buckley and declined to extend McConnell. But it didn't even overturn McConnell.

Hudson? Again, it declined to add yet another case to the exclusionary rule, but it didn't move the law to the right.


I have no doubt that if Warren were still Chief Justice, these decisions would have come out much left of where they did, but that's not what I'm contending; indeed, such an argument completely misses the point I was making. I'm not saying that these justices aren't more conservative than Warren; I'm saying that they're starting from a baseline much left of the one Warren faced, so even a small move to the left on any issue puts them even farther left than the Court actually was under Warren, whereas things denominated as moves to the right really aren't.

The only one I'll arguably give you was Morrison -- but what underscores my point there is that it was an isolated case that had precisely no impact on the actual law. There was no "federalism revolution," and no laws are being struck down as a result of Morrison. So a truly "conservative" decision has no impact -- while a liberal decision such as Lawrence v. Texas struck down numerous laws directly and is being built upon by lower courts to strike down even more.
9.14.2008 2:36am
Redlands (mail):

I think the need for long-term coexistence, and the concern that you don't want all of _your_ nominees blocked one day, may well justify a more accommodationist strategy; for me, the justification for accommodation doesn't derive from grand political theory, or from Alexander Hamilton, or from a belief about whether the President or the Senate is more big-picture about nominations.


The Senate can start by confirming the many nominations now sitting idle. Sorry to be so juvenile about it, but it would be nice to see the Dems forced to swallow some of their own bad stew they've brewed up over the past 8 years.
9.14.2008 2:55am
Jerome Cole (mail) (www):
The left plays hardball with judicial nominations. For them everything is fair game. Conservatives should keep all options on the table.
9.14.2008 3:03am
Jerome Cole (mail) (www):
The left plays hardball with judicial nominations. For them everything is fair game. Conservatives should keep all options on the table.
9.14.2008 3:03am
Daryl Herbert (www):
It's not demonstrative of fine ethics or a higher frame of mind to give away anything for free - especially USSC appointments, it is simply foolish.

There is a long history of appointing anyone qualified, regardless of their views, to the bench.

But I don't see the wisdom in it. Of course we should keep people with bad views--or bad values--off the bench.

It doesn't matter how qualified a nominee is, if they want to remake the Constitution in their own image, they should be kept off the Court.
9.14.2008 3:22am
eyesay:
Not surprisingly on a conservative-leaning blog, most of the comments here have a conservative viewpoint and overlook a lot of facts. Let me help you all, please.

Y'all who are complaining that the Democratic-controlled Senates stonewalled Republican nominees while Republican-controlled Senates readily approved Democratic nominees are not looking at the facts.

While only two of President Bush's judicial nominees have been defeated in open votes, nearly 60 of President Clinton's judicial nominees were defeated through secret, anonymous holds and other secretive, non-transparent Republican tactics.

And Puh-lease don't pretend that there are any liberals on the Supreme Court. Brennan was a liberal. Douglas was a liberal. T. Marshall was a liberal. That liberal tradition does not exist on the Supreme court anymore.
9.14.2008 4:09am
D.R.M.:
If Obama's actions, as a Senator, to oppose Roberts on ideological grounds were appropriate, then equally it's appropriate for the Republican senators to do the same to anyone he tries to appoint.

If, on the other hand, Obama exercised bad judgment on court appointments as a Senator, then his proven bad judgment means he shouldn't be given any deference on his court appointments as President.
9.14.2008 4:37am
Syd Henderson (mail):
Jerome Cole (mail) (www):
The left plays hardball with judicial nominations. For them everything is fair game. Conservatives should keep all options on the table.


The right plays hardball with judicial nominations as well. The sensible thing to do is talk to the opposition to find nominations that don't immediately polarize the Senate.
9.14.2008 5:20am
Ursus Maritimus:
"If Obama wins, then his qualified nominees, short of William Ayers, should be confirmed for the bench."

Well, what about Lynne Steward? She's also committed to Change. Change to the Manhattan skyline. Change to the civil rights of reactionaries.
9.14.2008 5:35am
deepthought:
Jerry F said:

Justices in the mold of Bork . . . follow the Constitution . . .

That's a crock. How soon VCer's forget--it was only last May that Ilya Somin posted the following:

One of the most interesting aspects of Robert Bork's version of conservatism, part of which I criticized in my recent symposium essay on his argument for wide-ranging government censorship, is how radical it is . . . .

In addition to calling for a ramping up of censorship to levels not tolerated by the courts for at least sixty years, Bork also argues for the near-abolition of judicial review, (my emphasis--deepthought) an institution that has grown over two hundred years. In his 1989 book, The Tempting of America, Bork argues that even the relatively restrained Supreme Court of John Marshall's era went too far in striking down legislation. In Slouching Towards Gomorrah (1996), Bork put forward a proposal to allow Congress to override judicial decisions striking down statutes by a simple majority vote. More broadly, Bork, in Slouching, rejects much of the last three hundred years of developments in intellectual history of liberal democracy. He attacks the great thinkers of the Enlightenment, the Declaration of Independence, and John Stuart Mill for their emphasis on the importance of protecting individual liberty. The Declaration's invocation of the rights to "life, liberty, and the pursuit of happiness" is, according to Bork, "pernicious" (my emphasis--dt) if "taken . . . as a guide to action, governmental or private" (for citations, see my article on Bork and censorship linked above).


He may or may not be a great intellect, but he certainly doesn't have the temperament to be a Supreme Court Justice. It was a good thing for America that he never made it.
9.14.2008 6:04am
MSchmahl:
My recollection may be faulty, but Miers was blocked because of the perception of a quid pro quo from Bush, while Robert and Alito were confirmed despite grumblings from Senate Democrats. Am I mistaken?

Sasha's point reminds me of the iterated prisoners' dilemma and its many variations.
9.14.2008 6:18am
rarango (mail):
Professor Adler. While I applaud your sentiments, I think in this charged partisan atmosphere the answer is a resounding no. Sad, but I fear true.
9.14.2008 6:26am
Brett Bellmore:

While only two of President Bush's judicial nominees have been defeated in open votes, nearly 60 of President Clinton's judicial nominees were defeated through secret, anonymous holds and other secretive, non-transparent Republican tactics.


You probably think it was clever to phrase this so that Bush nominees who were denied any votes at all through "secret, anonymous holds and other secretive, non-transparent Democratic tactics" don't count, but it was actually rather transparent.
9.14.2008 8:55am
BarryD (mail):
I don't think that "setting a good example" is called for here, and I think it's a terrible idea.

Before one can call for a truce and a resolution, one's opponent must at least take one seriously. Saying, in effect, "You can hit me all you want, and I'll never hit back" only works against bullies in dumb after-school specials. Real bullies, when not confronted directly, will just raise the level of their bullying, when they find that their victims don't fight back.

In the short term, sure, we can get some more judges appointed. Big whoop. The politicization of judicial appointments will continue, and worsen, until there's a showdown, and a resolution.

Relying on the better natures of the people in any political movement, particularly the angry American left as it currently seems to exist, is foolhardy at best. (That would be true whichever way the wind blew at a given time, but currently, the left wing seems to have the market cornered on irrational anger and a determination to act on it.)
9.14.2008 10:44am
Dales (mail) (www):
Republicans have long argued that Senate Democrats have treated President Bush's judicial nominees unfairly. They're right, but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse.

How often does poor behavior change, when it does not lead to adverse consequences?

Alternately, has there ever been a political party that found benefit by trusting that their opponents would suddenly become more fair than they had been previously?
9.14.2008 10:44am
William Abell, Jr. (mail):
Forget it. Yes the conservatives treated Clinton's appointments fairly and what happened? Your post answers that question. We (conservatives)have a moral and patriotic duty to oppose the screwballs that BHO and Schumer and the gang would send up.
9.14.2008 10:56am
Oren:

Heller -- assuming that once one gets past all the caveats and concessions by Scalia, it actually has an effect -- certainly moved the law of DC to the right, but it didn't move the Court to the right. (The Court has never -- yes, including Miller -- said that the second amendment was a collective right.)

That dishonest. Between Miller and Heller, the various Courts of Appeal routinely dismissed challenges to gun laws under the 2A with a collective rights theory. For 70 years, the SCOTUS denied cert, effectively upholding that regime -- that was an implicit endorsement even without the court officially holding so in an opinion. See, e.g., Presser v. Illinois, Mosher v. Dayton, United States v. Rybar ...

Plus, if there's one case you have to give me, it's Gonzales v. Carhart. Such a result was unthinkable before Regan and Bush II's nominees.
9.14.2008 10:58am
Oren:

We (conservatives)have a moral and patriotic duty to oppose the screwballs that BHO and Schumer and the gang would send up.

Nice tautology. The question is what should we do with the non-screwballs.
9.14.2008 11:00am
newscaper (mail):
I understand your point, and basically agree with it, but NOT that the Senate should be a rubber stamp.
It *MUST* seriously examine these guys, putting them thru the ringer if needed, and not be a rubber stamp.

However, that said, we should be very careful in not resorting to the same slimeball tactics such as using procedural means to block any votes.
9.14.2008 11:05am
betsybounds:
I don't understand (well, I do, but for the sake of irony, I don't): The left repeatedly rips and tears conservative nominees, but for the sake of comity, or future peace (go ahead, take the bait. . .), or something, conservative senators are to lay down their arms and confirm the leftist nominees. Then, when the tables turn again, the left will. . .what? Adopt the ways of peace and confirm qualified conservative nominees? Oh sure, what was I thinking? This post would be funny if it weren't so pathetic. Does Adler think he's in a battle of wits with an unarmed man?
9.14.2008 11:12am
p. rich (mail) (www):
the proper principled response is to set the right example

Obama will lose, so the argument is moot. The left certainly won't be swayed by it. So to whom is the argument addressed? And would you advocate it if it were stated as Always play fair no matter the consequences.?

You, Jonathan, are extraordinarily naive. Don't you understand the fallacy of adhering to principle when the other side believes that the ends justify the means? I think not. Would you meekly watch the US becoma a socialist state in the name of principle? Apparently you would, which makes you and your ignorant ilk enablers of the left and members of the Useful Idiots Club.

There is a huge difference between abondoning principle altogether and abandoning the fight. Best learn it, or relegate yourself to the bleachers and keep your useless thoughts to yourself.
9.14.2008 11:15am
Brett Bellmore:

(The Court has never -- yes, including Miller -- said that the second amendment was a collective right.)


That dishonest. Between Miller and Heller, the various Courts of Appeal routinely dismissed challenges to gun laws under the 2A with a collective rights theory


Nothing dishonest about it. The "Court", IOW the Supreme court, didn't say it was a collective right. The lower courts took Miller and spent nearly 70 years playing a game of telephone with it. But they were reading into it a 'collective' right view the Supreme court did not endorse.
9.14.2008 11:22am
Oren:
Brett, the SCOTUS had dozens of opportunities to grant cert to Miller-era collective-rights cases. They did not. That was an endorsement.

If the collective-rights theory was wrong, then the Supreme Court violated their own rules by refusing cert.
9.14.2008 11:27am
Byrd (mail) (www):
Let me see if I have this right: there is a historical pattern of democratic senates trying to block republican appointments, but no precedent at all of republican senates trying to block democratic appointments, and MSNBC is all worried that republicans will try to block Obama's appointments.

Sounds par.
9.14.2008 11:28am
Letalis Maximus, Esq. (mail):
Judicial appointments is the big enchilada. I expect GOP Senators to go the mattresses over Obama's appointments. But they probably won't. After all, the GOP DC Mantra is: "Screw your friends and appease your enemies."
9.14.2008 11:32am
cboldt (mail):
-- The lower courts took Miller and spent nearly 70 years playing a game of telephone with it. --
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The dissent in Heller played the same transparent dishonesty. Even the majority misconstrued the case as "Miller lost," rather than what the Miller case actually says.

SCALIA: The judgment in the [Miller] case upheld against a Second Amendment challenge two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection ... [citation from Miller, which contradicts Scalia, omitted]

.

Miller won below, the District Court held that the NFA was unconstitutional in light of the 2nd amendment. SCOTUS remanded the case for want of a finding that a short barrel shotgun has militia or defensive use. The District Court would have maintained its holding that the NFA was unconstitutional, if Miller wasn't dead, because short barrel shotguns do have militia use.

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If Heller is seen as a "move to the right," I am all the more adamant about using exactly the same tools and tactics of the left, to avoid voting on and/or confirming judges who have adopted the incorrect "common wisdom" about what the Miller case actually says.
9.14.2008 11:39am
SGT Ted (mail):
How come Conservatives are the ones who have to hold Lucys' football?

The principle to apply is one of equal treatment. Not until the Democrats lead the way on this should the GOP ever be as accomodating to the Dems judicial picks. Dems aren't interested in treating someone fairly; they are about scorched earth, political victories and a judiciary packed with leftwing living Constitutionalists who are destroying the Constitution to further their descent of America into just another European style socialist welfare state. Accomodation is a 2 way street.
9.14.2008 11:47am
FYI (mail):
Rather than adopt the theoretical standard that a generic Democrat should apply to Republican nominees, when the Democratic president is a former senator shouldn't the Republicans adopt the same standard applied by that Democrat president when he was in the senate?

In that case, how fairly did Obama treat Roberts and Alito?
9.14.2008 11:50am
SGT Ted (mail):
Also, opposing leftwing Judicial picks IS principled; leftists are fundamentally anti-American in thought and deed.
9.14.2008 11:50am
Oren:

but no precedent at all of republican senates trying to block democratic appointments

You should tell Richard Paez about the lack of Republicans holding up his nominations. He'd be eager to here about it, considering how long he waited for confirmation.

The dems approved Roberts and Alito, Obama should get to nominate liberals of the same caliber -- somewhere in the Breyer-Stevens range.
9.14.2008 11:51am
Fufu the Dog (mail):
"I hope most conservatives and Republican Senators let them go through without much of a fight." Jonathon...Jonathon. Are you off your meds?
9.14.2008 12:16pm
Oren:


If Heller is seen as a "move to the right," I am all the more adamant about using exactly the same tools and tactics of the left, to avoid voting on and/or confirming judges who have adopted the incorrect "common wisdom" about what the Miller case actually says.

You can't lay this one on the CAs -- the SCOTUS had ample opportunity to grant cert and didn't. There was no contrary precedent by the Court and 10/13 CAs in agreement.
9.14.2008 12:20pm
AntonK (mail):

So if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight. This is how most Republicans treated President Clinton's nominations of Stephen Breyer and Ruth Bader Ginsburg, and equally qualified Obama nominees deserve nothing less. If this means that a President Obama gets to place several quite "liberal" jurists on the bench, so be it. Republicans have long argued that Senate Democrats have treated President Bush's judicial nominees unfairly. They're right, but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse.


Ah, sorry Adler, the name's Tucker, not Sucker
9.14.2008 12:22pm
DCP:

Are they even going to have the votes for this?

Democrats are expecting big Senate gains if Obama wins. Toss in the moderate/liberal Republicans (Snowe, Chaffee, Lieberman, etc) and I'm not so sure you could find 40 conservatives willing to roll up their sleeves and put in the hardline work for a fight on this.

I'm not as bothered by Obama's strong left views as I am the possibility that they will go completely unchecked by a beaten-down, left-leaning Congress. Clinton, for example, was handcuffed by a very determined and committed majority opposition. With the exception of Ginsberg and a few token pieces of legislation, his policies, administration and legislation were very limited (both ideologically and quantitatively). The result was something very palatable to the public at large (aside from his sexual indiscretions).

Meanwhile, Bush and his inner cabal were given a blank check by a sympathetic government and naive leaders in the military and corporate world. The resulting mess and approval ratings speak for themselves.
9.14.2008 12:23pm
cboldt (mail):
-- You can't lay this one on the CAs -- the SCOTUS had ample opportunity to grant cert and didn't. --
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I can too lay error on the CA's, and I do. Denial of cert doesn't mean that SCOTUS endorses the result below. That the CA's misread Miller is obvious to anybody who actually reads and understands Miller.
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But I also lay error on SCOTUS. All nine justices in Heller got Miller wrong. ALL of them. But the dissent is egregiously wrong by finding only a collective right. I hope the GOP senators are on the ball enough to probe 2nd amendment and takings, for all of the nominees henceforth, and especially nominees that are offered from a president who is a member of the Democratic party.
9.14.2008 12:32pm
Oren:
Lincoln Chafee is no longer in the Senate. The Dems will need at least 5 or so defections to make cloture stick.
9.14.2008 12:33pm
Oren:
cboldt, denial of cert doesn't mean anything in an individual case, but when the court systematically refuses to make a ruling on the 2A (and all the circuits are in line), it means something. IMO, it means that the SCOTUS has abdicated its duty under its own rule 19b but w/e.
9.14.2008 12:35pm
Bad (mail) (www):
"I agree with the other commenters here: if the left was prepared to be as respectful of Republican choices as Republicans have been of Democratic choices, then I wouldn't have a problem with this."

I have a problem with the sheer unreality of this comment. Republicans were not respectful of Democratic nominees. They blocked as many or more of Clinton's nominees than Democrats have: and more successfuly blocked them than Democrats had. That's because they had more effective tools to block nominees at the time. When they took power, they eliminated those tools, leaving Dems with more visible but less effective tools.

The idea that the Republicans were nice and respectful of Dem nominees until the big bad Dems came along with their brutish ways is a polite fiction for partisan children. One can certainly accuse the Dems of causing the biggest first spark with Bork, and one could argue that Republicans were nicer to Clinton's SC nominees. But by and large, there have been no gentlemen here on either side.
9.14.2008 12:39pm
Angus:

Let me see if I have this right: there is a historical pattern of democratic senates trying to block republican appointments, but no precedent at all of republican senates trying to block democratic appointments,
What ridiculous revisionism. During the Clinton years the Republicans in the Senate did not regularly engaged in under the table and behind closed doors maneuvers to torpedo dozens of qualified nominees? Nor have they ever tried to filibuster circuit court nominees, like Richard Paez or Marsha Berzon. Those were all just hallucinations?

I, for one, welcome a tough nominations process in which nominees are grilled on issues of judicial philosophy and precedent. After all, these people are being given lifetime positions!
9.14.2008 12:41pm
Oren:
Just to add, the filibuster of Paez was led by none other that Frist himself -- who would insist during the 109th that every nominee must be given an up or down vote.
9.14.2008 12:46pm
Brett Bellmore:
I agree as a practical matter that the Supreme court did not go nearly 70 years refusing cert to every last 2nd amendment challenge because they were unhappy with the lower courts' distortions of Miller. They were only too glad for most of that time to let the lower courts take the heat for treating the 2nd amendment to the death of a thousand cuts.

But as a legal matter, we are repeatedly told that denial of cert is not to be taken as expressing a position. The Supreme court has never endorsed the collective right view, for all that it callously allowed the lower courts to get away with doing so.
9.14.2008 12:52pm
Oren:
My point was, you can't blame the circuit courts (especially when there is a high degree of consensus) for the SCOTUS' abdication of their rule 19 duty. IOW, whether or not denial of cert means anything in the legal sense, it does absolve the CAs of any moral responsibility for their misinterpretation of Miller (which, given the lack of guidance, they could reasonably conclude, was not misinterpretation at all).
9.14.2008 1:12pm
tehdinj (mail):
That's thinking like a European! 'They're mean to us, but we shouldn't be mean right back.'

There have to be consequences for the Democrats' actions over the past 8 years. I'd be happy saying that Obama's nominations will go through, but only if he nominates a few of the judges who received the short end of the stick while Bush was president. Compromise is the way to go at it. There IS a debt to be paid.
9.14.2008 1:17pm
eyesay:
DCP: "Toss in the moderate/liberal Republicans (Snowe, Chaffee, Lieberman, etc)"

On Nov. 7, 2006, Sen. Lincoln Chafee (R-RI) was defeated for reelection by Sheldon Whitehouse.

Joseph Lieberman is now officially listed in Senate records as an "Independent Democrat"; he caucuses with Democrats, not Republicans.
9.14.2008 1:20pm
Oren:

I'd be happy saying that Obama's nominations will go through, but only if he nominates a few of the judges who received the short end of the stick while Bush was president.

I'd say clear out some of Clinton's stalled nominees as well but now they are 8 years older and therefore not a wise choice. After all, if we are going to play straight politics here, no reason to nominate anyone older than 53, right?
9.14.2008 1:25pm
cboldt (mail):
-- the filibuster of Paez was led by none other that Frist himself -- who would insist during the 109th that every nominee must be given an up or down vote --
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Frist deep sixed a number of nominees who had moved out of Committee, and onto the Senate's Executive Calendar. One day he was saying they deserved up or down votes, and after that, silence and no action. Never suggested going into executive session to vote on them, so no cloture motions, etc.
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I doubt Harry Reid would do the same against an Obama nominee.
9.14.2008 1:29pm
A.W. (mail):
Mmmm, so this is how it works.

Republicans play nice.

Dems play dirty.

So republicans should play nice, to convince the dems not to play dirty, except...

If that would work, then why were dems the first to play dirty? Shouldn't the shining example of their previous niceness have prompted niceness?

Seems to be a thin theory, to me.

I don't think republicans should play dirty, but they should demand strict constitutionalists, period, on the bench. They have a duty to uphold the constitution, and to make sure the appointments will do the same. This arrogance from the bench has to stop. Starting with the end of Kennedy v. LA.
9.14.2008 1:29pm
cboldt (mail):
-- it does absolve the CAs of any moral responsibility for their misinterpretation of Miller (which, given the lack of guidance, they could reasonably conclude, was not misinterpretation at all) --
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Lack of guidance? Miller is a short, easy case. There is no principled excuse for it being chronically misconstrued. More like "We can get away with misconstruction, so we will." It goes on to this day, continued misconstruction of Miller, now with reference to Heller to "add heft."
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Absolved of moral responsibility on account of not being called on it. That is utterly unprincipled.
9.14.2008 1:35pm
Brett Bellmore:
I agree with cboldt; You might not be able to blame the lower courts for the Supreme court refusing cert, but you certainly can blame them for using that refusal as an opportunity to go hog wild instead of being guided by the evidence in the absence of controlling precedent.

The most you can get from Miller is a test as to which arms are protected, the very fact that they didn't regard Miller's criminal record or lack of military service as relevant made reading a collective right into that ruling a tremendous stretch.
9.14.2008 2:39pm
Saladman (mail):
Now that's just freaking brilliant. Does MSNBC wonder whether liberal groups will mobilize to defeat controversial judicial nominations if Senator McCain is elected president? Or is that not worth discussing?

And do you advocate that liberals and Democratic Senators let qualified right-leaning lawyers and judges through without much of a fight, or is that just crazy talk?

I believe I do follow your logic, but the question arises, what happens if one side takes your advice and one side doesn't? (I'm not saying there have been no Republican blocks, but I do assert there have been more Democratic blocks, and more importantly, the Democratic blocks are more likely to continue.) Stephen Covey makes a point, that sometimes gets neglected by fans of win-win thinking, that you can't find win-win scenarios with an opponent who's stuck in win-lose thinking. You can try, but you'll end up on the wrong end of win-lose.
9.14.2008 3:07pm
eyesay:
A.W. "I don't think republicans should play dirty, but they should demand strict constitutionalists, period, on the bench."

Everybody thinks the Supreme Court should "Uphold the Constitution" but what that might mean is always a matter of judgment.

"Separate but equal" was deemed unconstitutional, ultimately, because our nation tried it for 58 years and it didn't work. Nobody today would want to overturn Brown v. Board of Education, but in 1896, the Supreme Court could not find a basis to deem "Separate but equal" unconstitutional.

Originalism is a crock. The constitution's words remain the same, but it is a vital, living, evolving entity, ever subject to new understanding, which is why the Supremes overturned "Separate but Equal" in 1954.
9.14.2008 3:08pm
Oren:

Absolved of moral responsibility on account of not being called on it. That is utterly unprincipled.

Disagree, because it is the job of the SCOTUS to keep the circuits in line. Absent any corrective action from above, they were well within their rights to assume that they were in line.

I'll agree that reading a collective-rights out of Miller is a stretch, but I still place the blame solely and squarely with the SCOTUS. To quote the dissent in Ratchford


Courts by nature are passive institutions and may decide only those issues raised by litigants in lawsuits before them. The obverse side of that passivity is the requirement that they do dispose of those lawsuits that are before them and entitled to attention. The District Court and the Court of Appeals were doubtless as chary as we are of being thrust into the middle of this controversy but were nonetheless obligated to decide the case. Unlike the District Court and the Court of Appeals, Congress has accorded to us through the Judiciary Act of 1925, 28 U.S.C. 1254, the discretion to decline to hear a case such as this on the merits without explaining our reasons for doing so. But the existence of such discretion does not imply that it should be used as a sort of judicial storm cellar to which we may flee to escape from controversial or sensitive cases. Our Rules provide that one of the considerations governing review on certiorari is whether a Court of Appeals "has decided an important question of federal law which has not been, but should be, settled by this [C]ourt; or has decided a federal question in a way in conflict with applicable decisions of this [C]ourt." Rule 19(1)(b).
(my emph)

The obverse side of rule 19(1)(b) (to borrow a rhetorical device from the Chief Justice), is that lack of cert (especially repeatedly) implies that the SCOTUS does not think that there is an important question of federal law and does not think that the lower court has decided a federal question in conflict with precedent.
9.14.2008 3:15pm
Oren:

I'm not saying there have been no Republican blocks, but I do assert there have been more Democratic blocks, and more importantly, the Democratic blocks are more likely to continue.

Numerically speaking, Dems under Bush and Reps under Clinton are roughly comparable. Sorry to spoil you moral outrage.
9.14.2008 3:17pm
Paul R (mail):

So if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight.

The hell with that!
9.14.2008 3:24pm
cboldt (mail):
-- Absent any corrective action from above, they were well within their rights to assume that they were in line. --
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Following your "principle," courts can make cockamamie rulings (deliberate misconstruction) on the theory that if they aren't called on it, the ruling is "in line." I call that utterly unprincipled. Corrupt. Ethically void (as in "empty").
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You'd have an argument about the reasonable assumption if Miller was complicated, or if it's holdings and dicta were spread out among multiple Justices. But Miller is simple, short and direct.
9.14.2008 3:34pm
Oren:
cboldt, this wasn't one cockamamie ruling - it was a series of ruling by all the circuits, 11/13 of which concluded that the 2A protects a collective right. When the SCOTUS goes absentee, the circuits are free to rule as they please.

I certainly disagree with the circuits, but there's hardly any evidence that their ruling were deliberate or unprincipled. What possible motive could a conservative 8CA (see, e.g. UNITED STATES of America v. Wilbur HALE, not to be confused with the SCOTUS case of US v. Hale involving a bank robber) have other than following precedent to this best of its ability? Surely these aren't Reinhardt liberals!
9.14.2008 3:53pm
Milhouse (www):
When discussing who blocked whose nominations, etc, I think people are blurring an important distinction between how a Senate majority ought to handle the president's nominations and how a minority ought to do so. When Clinton faced a Republican majority in the Senate, he found his nominees never made it to the agenda, because the majority has the right to set the Senate's priorities; that's hardball, but it's entirely proper. Similarly, the Democratic majority in today's Senate has the right to decide that today's not a good day to discuss one of Bush's nominees, and it will get around to the discussion in a decade or two. It may not be nice, but it's within its proper authority.

Filibusters, though, as their very name indicates, inherently smack of illegitimacy; they're dirty tricks that ought to be engaged in only in extreme circumstances, where the damage being fended off is worse than the moral stain of hijacking. That's why there is no history of Senate minorities successfully filibustering judicial nominees. (Fortas didn't have support from a majority of the Senate, so it wasn't really a filibuster, which by definition is the minority hijacking the Senate from the majority.)

At least, those were the rules that both parties kept, until Chuck Schumer came up with new ones. This was an explicit change in the ground rules, and it was a change for the bad. So, should the situation be reversed, ought the Republicans to go back to the old rules? I say no; they were good rules, but the Democrats threw them overboard, and now it's time to play by the Schumer rules. Perhaps after a few years of that the Democrats will realise what they'd done, and it will be possible to get a mutual agreement to go back to the old rules - with a D guarantee that they will stick to them even when the situation reverses again.
9.14.2008 4:12pm
cboldt (mail):
-- this wasn't one cockamamie ruling - it was a series of ruling by all the circuits --
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The more times the error is repeated without being called out, the more valid and morally correct the error becomes.
.
No thanks. I'm sticking to my point of view. It is perfectly reasonable for an observer to expect a Court of Appeals to get Miller right, independently of being slapped down by SCOTUS. That 11/13 are scared of gun rights makes 11/13 wrong on Miller. And now 9/9 Justices on SCOTUS too. "Miller was convicted," my ass.
9.14.2008 4:18pm
Angus:

That's why there is no history of Senate minorities successfully filibustering judicial nominees.

Clever use of "successfully" there. Minority Republicans in 1994 tried to block circuit court nominees via filibuster but were unsuccessful. In the 2000s, minority Dems succeed in the attempt. But that does not make the tactic new.

The point is, neither side can play holier than thou on judicial appointments. So that particular GOP whine of "We play fair but the nasty Dems don't" can stop. It's not productive. And in that it is false and (when repeated despite mounds of evidence to the contrary) dishonest, it further fans partisan flames and makes any settlement even less likely.
9.14.2008 4:23pm
cboldt (mail):
Just to draw the Miller case back into the question of blocking confirmations, I'd have the Republicans conduct a judicial comprehension test on Miller - not ask whether it was rightly or wrongly decided, just ask what the facts were, what the legal posture was before and after the SCOTUS decision, and what the holding represents.
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If the nominee can't get that right, then they have no business being a judge in a federal court. And if the nominee HAS construed Miller, I'd reach a "reject" conclusion depending on how the nominee construed the case.
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Although I suspect that the Senate is at least as likely to misconstrue Miller as the Courts are, because they don't want to put the NFA and its progeny at risk of being overturned.
9.14.2008 4:29pm
David M. Nieporent (www):
That dishonest. Between Miller and Heller, the various Courts of Appeal routinely dismissed challenges to gun laws under the 2A with a collective rights theory. For 70 years, the SCOTUS denied cert, effectively upholding that regime -- that was an implicit endorsement even without the court officially holding so in an opinion. See, e.g., Presser v. Illinois, Mosher v. Dayton, United States v. Rybar ...
Denials of cert are not "endorsement." And (while it's still very early) after Heller, courts are "routinely dismissing challenges to gun laws," as EV keeps posting.

An actual conservative ruling comparable to the Marshall/Brennan/Douglas court's rulings would have struck down all gun laws in the U.S., except perhaps felon-in-possession laws. That's what would have happened if Scalia/Thomas/Alito/Roberts were really as conservative as the hallowed trio was liberal.

Plus, if there's one case you have to give me, it's Gonzales v. Carhart. Such a result was unthinkable before Regan and Bush II's nominees.
Again, that completely misses the point I was making, which was not about whether Reagan's/Bush's nominees wrote/voted for more conservative opinions than Democratic nominees would have done. My point is about the state of the law. Carhart is not more "conservative" than Roe/Casey; it assumes they're valid and follows them. It upheld a law -- against facial challenge only -- which bans no abortions, but only a method of abortion in cases where that method isn't actually needed at all.

You're making my point: a "liberal" ruling -- Roe -- struck down oodles of abortion laws across the U.S. and essentially created a regime of abortion on demand. A "conservative" ruling" -- Carhart -- assumes for the sake of the case that Roe is valid and upholds a law which has only symbolic significance, not moving the law to the right at all.

A major liberal federalism ruling -- Heart of Atlanta -- said that there are no limits on federal power at all; a major conservative federalism ruling -- Morrison, or Lopez -- said that Congress had to recite a few words like "which has an effect on interstate commerce" before exercising its unlimited powers.

It's a one-way ratchet.
9.14.2008 4:39pm
Oren:

I think people are blurring an important distinction between how a Senate majority ought to handle the president's nominations and how a minority ought to do so.

And I think you ought to reread your history of 103rd US Congress.

Moreover, since I consistently support limiting the President's prerogative to nominate outside the mainstream, I don't accept the distinction anyway -- 60 votes or find a less polarizing candidate.
9.14.2008 4:44pm
Oren:

The more times the error is repeated without being called out, the more valid and morally correct the error becomes.

Interpretation of law is descriptive, not prescriptive. As it happens, views that I personally disagree with are often institutionalized. Somehow, I cope with the fact that someone, somewhere, could disagree me.
9.14.2008 4:46pm
Jon Roland (mail) (www):
cboldt:

I suspect that the Senate is at least as likely to misconstrue Miller as the Courts are, because they don't want to put the NFA and its progeny at risk of being overturned.

There is another way Miller gets misconstrued. The NFA was a tax statute. The government was asserting a power to make it a crime to possess an object on which a tax had not been paid (unconstitutional), while refusing to accept payment of the tax if it were tendered (voiding the obligation). The Court had to decide whether the weapon in question was tax-exempt, as militia firearms were under the precedent of the Militia Act of 1792. It couldn't just find that anything useful for militia was tax-exempt, because almost anything can be used in militia under some scenario. The Court wanted a closer connection to militia that, say, a pair of combat boots or a canteen. Otherwise it would be creating a precedent that could be used to find all taxes void on everything.

It seems a lot of people miss this argument, including Scalia and many on this forum.
9.14.2008 4:47pm
cboldt (mail):
-- Minority Republicans in 1994 tried to block circuit court nominees via filibuster but were unsuccessful. --
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In 1994, I see cloture vote on Sarokin (85-12, with 3 Democratic senators among the 12 NAY votes).
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There were also cloture votes on the nomination of Ricki R. Tigert to the FDIC (63-32, all opposition from Republicans), on the nomination of Sam Brown to Ambassador (two cloture votes, one at 54 votes, the other at 56), and the nomination of Derek Shearer to be Ambassador to Finland (63-35)
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Well then, it seems settled. Filibustering judicial (and other) nominees has been done in the past by both parties. Democrats expressly state that it is an appropriate tactic. I say "carry on," since the Democrats don't object to nominees being rejected by a minority of the Senate.
9.14.2008 4:55pm
Paul A'Barge (mail):
This is just absolute stark-raving nonsense.

Of course Conservatives are going to block Obama's judicial nominations. And we're going to do it in a way that makes what the DIMs did to Bork look like a ladies tea party. It's going to be an all-out, no-restraint bloodbath.

And I'll tell you Libertards and DIMocrats that if you have no stomach for this, then stand on the sidelines and STFU.

Because the chickens are coming home to roost and Conservatives are going to be delivering them in a 45 foot trailer with a Peterbilt semi.

Remember Judge Bork.
Remember Clarence Thomas.
Remember Ruth Bader Ginsberg.

Unleash the dogs of hell.
9.14.2008 5:05pm
TalkingHead:
Putting aside who Obama might nominate, I fear who McCain might nominate. I think originalists want to believe he'll appoint someone who takes the document's text, structure, etc., seriously. Personally, I think the best we get from McCain will be another Sandra Day O'Connor or Anthony Kennedy, more split the difference judging.

Remember if McCain is president too and has anything less than a filibuster-proof majority in the Senate (which would be almost certain), he'll have a hard time urging his Senate Republican to establish the precedent that he should have allowed -- i.e. no filibusters of judicial nominees. Or perhaps it cuts the other way? Only Nixon could go to China??
9.14.2008 5:34pm
Antoine Clarke (mail):
The strategy proposed is a losing one in game theory.

Cooperation now in a position of strength [filibuster], in the hope of reciprocation later is naive. The Democrats would have every reason to promise cooperation later, after all, chances are some of the people who promised won't be there and the newcomers are absolutely not held to a political promise by guys who later lost an election.
So the correct tactic is to complain whenever cooperation is denied, to promise it at a future date under conditions, and to never accept that the conditions for being suckered have been met.
You can't have a consensus on freedom versus socialism, one side has to lose.
And I don't think discussing this in public is clever either. :-D
9.14.2008 5:51pm
Brett Bellmore:

Interpretation of law is descriptive, not prescriptive.


But in a nation of written laws, is it supposed to be descriptive of practice, or what the laws actually say?
9.14.2008 6:25pm
Oren:

Unleash the dogs of hell.

roflmao.

But in a nation of written laws, is it supposed to be descriptive of practice, or what the laws actually say?

It's descriptive of interpreting the written law in harmony with currently accepted doctrine. Both meaning and precedent are important.
9.14.2008 7:31pm
Donald Gooch (mail) (www):
This is a classic PD game. The more certain that Democrats are that Republicans will unilaterally disarm on judicial nominations the more incentive Democrats have to completely exploit them. The only thing keeping Dems somewhat in check (see the Gang of 12) is the shadow of a future where they control the presidency but not the Senate and may thus have judicial nominees to put in place. Take away that threat and all that remains is the question of whether the Dems would play "fair" and choose to act irrationally or...act rationally and take their victory.

I think it is pretty obvious what they would do, thus Mr. Adler's suggestion is that the Republicans sign a suicide pact.

I reccomend against. D.GOOCH
9.14.2008 10:44pm
Randy R. (mail):
Mike: "Please! Was that before or after the adoption records of his children were ransacked? Or maybe when Mrs. Alito had to leave the room in tears after her husband was being grilled for what? Being in the Mafia? Being a bigot?"

The fact, which many people here continue to find very inconvenient to their victimology, are that both Roberts and Alito were confirmed, and there was NO obstruction presented by Democrats. Harriet Miers was removed, and she was objected to by both conservative and liberals across the land.

Now, if you want to say that no appointtee to SCOTUS should ever have to suffer having their feelings hurt, that's a whole 'nother issue. But let's save that for McCain's campaign lies, shall we?
9.15.2008 12:29am
Greg Q (mail) (www):
Not only no, but Hell no.

Every single Obama nominee should be asked "do you believe the United States Constitution is Living Document?" When they answer Yes, they should be asked "what is the difference between saying that, and saying that it means whatever 5 members of the Supreme Court think they can get away with saying that it means?"

When they can't answer that questions (because there is no difference), they should be turned down.

Proponents of a "Living Constitution" are enemies of the written US Constitution. Those Senators have all sworn an Oath to "Protect the Constitution against all enemies, foreign and domestic." They should uphold their oath, and vote down all Obama's nominees.

Democrat Constitutional "Jurisprudence" is entirely illegitimate. If they want to actually try to push it in an election, they'll lose. There's no reason for the republicans to give them anything on this front.
9.15.2008 12:31am
Brett Bellmore:

It's descriptive of interpreting the written law in harmony with currently accepted doctrine. Both meaning and precedent are important.


So, as long as the judges agree, they can't be wrong? That's very convenient for lawyers, I suppose, but it does raise the question of why anybody else should find the outcome legitimate in a case where the lawyers agree to say that the Constitution means something it manifestly doesn't say.

Take Heller: Suppose the Supreme court had decided to go along with the majority of circuits, and announce that the 2nd amendment 'meant' something which would never stand in the way of any gun law, ever. Effectively writing the 2nd amendment out of the Constitution. It seems that by your doctrine they'd be 'correct', since the end result would be all the courts in agreement, and a lot of circuit level precedent would have been retained. But the judiciary would have lost it's legitimacy in the eyes of an awful lot of people, with potentially nasty results down the road.

Can the legal system really get by with such a self-contained notion of what constitutes a correct ruling? "Anything we agree on"?
9.15.2008 7:41am
Oren:
Brett, your point is well-taken and perhaps my definition is ultimately too self-contained. To me, however, there was something even more important about the refusal to overrule/correct Miller -- it stood for 70 years. So it's not just that 5 of 9 Supreme Court Justices one day decided to interpret the 2A this way -- more like 30-40 Justices, appointed by 8 different Presidents from all over the political spectrum, "ratified" that view (or at least didn't overturn it).

Now, if you want to objectively claim that this understanding was wrong, I'm very sympathetic (in the case of Miller, I agree wholeheartedly). Ultimately, however, the Constitution is not a self-evident document and many respected legal mind differ as to the scope and breadth of the 2A protection on the RKBA. That disagreement itself proves to me that the phrase "the Constitution means something it manifestly doesn't say" is vacuous.
9.15.2008 3:42pm
Brett Bellmore:
I think we can agree that, after the Supreme court had been turning down appeals for a few decades, it was reasonable for the circuits to deduce that the majority on the Court didn't mind bad rulings in this particular area. And I'm willing to agree that the lower courts are under a procedural obligation to go along with even bad Supreme court precedents, though there's always the honorable route of resignation rather than being complicit in truly awful precedents.

But what we're talking about here is whether it's permissible for the circuits to anticipate, even reasonably, bad Supreme court precedents. And I would say that,

1. The lower courts are not under any obligation AT ALL to anticipate bad Supreme court precedent, even where they've got pretty strong hints.

2. They ARE under a moral obligation to not create bad precedents themselves.

The Supreme court may bind the lower courts to the mistakes it makes, it does not bind them to the mistakes you could reasonably deduce it would make if given the opportunity. The Supreme court may be able to murder parts of the Constitution, but the blood has to be on it's own hands.
9.16.2008 7:58am
Oren:
Fair enough Brett (a little melodramatic at the end though).

I'll leave this thread only with the belief that, however, mistaken their reasoning, the circuits that interpreted Miller to endorse the (incorrect) collective-rights interpretation did so in good faith. Maybe it's a stretch, but I prefer to be generous in these cases rather than be the first to impute bad motives.
9.16.2008 2:06pm
Engineer (mail):
The independent counsel law is useful precedent here. It was a great idea when it stalked GOP administrations and was allowed to die when the Democrats tasted it under Clinton and agreed with the GOP it wasn't such a good idea. The Democrats fired the first shots in the judge wars by opposing Bork and since then both sides have been willing to go slow on federal judgeships and go into open war on appellate appointments. The only high ground that the GOP can plausibly claim is that they haven't gone to war on SCOTUS appointments, but if they mirror the Democrats, they're entitled to over any prospective Obama nominations.

Game theory says the GOP should get the last licks in if they don't want to appear as chumps to the Democrats (serial Prisoner Dilemma - keep quiet for the first round, then always return the previous play of the other prisoner. The GOP should only quickly pass Democrat appointed judges after the Democrats quickly pass GOP judges.)

This isn't a legal argument at all, but it is a hardball political argument.
9.16.2008 2:13pm