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The Sotomayor Vote:

The Senate is scheduled to vote on the nomination of Sonia Sotomayor to the Supreme Court today at 3pm. It looks like there will be just shy of 70 votes in favor of her confirmation. Back in June I wrote:

If I had to make a prediction, I'd guess that the vote will actually occur just after the August recess, and that somewhere around 75 Senators will vote in favor of Judge Sotomayor's confirmation.

I overestimated the number of Republicans who would end up voting in her favor, as well as their ability to make the case for a slight delay. But you were warned the prediction was "worth about as much as the paper it's printed on." Other folks' predictions are here.

UPDATE: According to Ed Whelan, 31 Republican Senators have announced their intention to vote against Judge Sotomayor's confirmation; 8 Republicans (Alexander, Bond, Collins, Graham, Gregg, Lugar, Martinez, and Snowe) have said they will vote in favor; 1 Republican (Voinovich) is undeclared. Given that it is unlikely Senators Byrd and Kennedy will be able to vote, this means the final tally should be 67-31 or 66-32.

UPDATE: And here's what Benjamin Wittes wrote about the nomination on May 27:

Only a few years ago, a Supreme Court nominee like Judge Sonia Sotomayor could expect quick, nearly unanimous confirmation. She is, after all, a long-serving appellate court judge who has also served on the district court bench, and she is qualified for the high court in every formal sense. While fights over such nominees occasionally erupted, they were rare. The nomination of John Paul Stevens as late as 1975 received unanimous Senate approval in a mere 16 days.

Yet based on recent trends in Supreme Court nominations, Sotomayor can probably expect a minimum of 30 votes against her, maybe more like 40. She can expect highly contentious questions about everything she has ever written or said. She can expect a team of operatives to spend the next few months digging up dirt on her. And she can expect insinuations of perjury before the Senate Judiciary Committee to the extent that there is any tension between her voluminous judicial work and the words she speaks in the careful dance in which she will engage with the committee.

Our system has gone from one in which people like Sotomayor, Chief Justice John Roberts and Justice Samuel Alito are shoe-ins for confirmation to a system in which they are shoo-ins for confirmation confrontations. It's worth asking whether America gets anything in exchange for this new presumption, other than battles that serve to energize both political bases.

FINAL UPDATE: The final vote tally was 68-31 in favor of confirmation.

drunkdriver:
I for one can't wait to put this behind us so we can have Orin back.

(No offense to Prof. Adler, of course.)
8.6.2009 9:27am
ruuffles (mail) (www):
There are so far eight declared Republicans. Democrats would need to wheel in Byrd and Kennedy to reach 68.
8.6.2009 9:31am
PeteP (mail):
Sotomayor has been 'fait accompli' since the day she was nominated. All the rest is just posturing for the cameras.
8.6.2009 9:38am
Downfall:
But you were warned the prediction was "worth about as much as the paper it's printed on."

Using an evolving standard for the word 'paper,' and the penumbras from the words 'paper', 'printed, and 'worth,' this is a clear reference to the computer monitor I read the post on, which is valued at about $250. I estimate your prediction was worth no more than $150, and will be suing you for the balance forthwith. I haven't quite worked out the legal theory yet, but I feel I may have some sort of fraudulent inducement claim.
8.6.2009 9:46am
femiknowledge:
The simple truth is that Sotomayor was never going to reach 75 votes because of the gender bias that permeates the confirmation process. The two attacks I've seen have been the same tired attacks trotted out against any strong woman: (1) she's "hot-headed" or "a terror" (even though her oral arguments suggest otherwise, and Justice Scalia certainly fits that definition) and (2) she's biased towards women (even though, looking at the empirical results of the Roberts court, one could say the same thing about that court).

Perhaps that's ok though. Even though the confirmation process was just a back-handed attempt to quash feminist jurisprudence, that attempt will only serve to amplify that discourse.
8.6.2009 9:57am
Cato The Elder (mail) (www):
"Amplify the discourse..."; yesiree, we have an academic feminist in our midst.

And a semiotic hetero-normative anti-disestablishmentarianist day to you, too!
8.6.2009 10:05am
DiverDan (mail):

Using an evolving standard for the word 'paper,' and the penumbras from the words 'paper', 'printed, and 'worth,' this is a clear reference to the computer monitor I read the post on, which is valued at about $250. I estimate your prediction was worth no more than $150, and will be suing you for the balance forthwith. I haven't quite worked out the legal theory yet, but I feel I may have some sort of fraudulent inducement claim.


Actually, applying the normal usage of the term "about", as in "worth about as much as the paper it's printed on", this estimate of value was clearly akin to the concept of "reasonably equivalent value", as used in the Uniform Fraudulent Transfer Act. But "reasonably equivalent value" is only vaguely connected to true value, and does not relate at all to original cost or replacement value. While you may claim that your Computer Monitor has a value of $250, and that indeed may be its original cost or replacement value, I would bet that, as a used monitor sold at auction with no warranty, it would fetch no more than $50-$75, maybe less. Consequently, Downfall, your contemplated suit is without merit; you received an opinion with at least twice the value promised.
8.6.2009 10:15am
Matt_T:
"Even though the confirmation process was just a back-handed attempt to quash feminist jurisprudence, that attempt will only serve to amplify that discourse."

The only type of "-ist" that belongs on the Court is "textualist", "originalist", and arguably, "pragmatist" or "idealist". Take your backhanded attempts at "social justice" to the legislature.
8.6.2009 10:17am
Grumpy Old Man (mail) (www):
Travesty.

Is it some succour that she's a hack?
8.6.2009 10:20am
byomtov (mail):
The only type of "-ist" that belongs on the Court is "textualist", "originalist", and arguably, "pragmatist" or "idealist".

Clarinetists, pianists, violinists, etc. need not apply, but trumpeters are OK, I guess. No philatelists or numismatists, either.
8.6.2009 10:41am
Downfall:
Diverdan, I assure you, I have a fancy dual monitor setup and it would sell at auction for $250 if not more. Further I was, if anything, being generous with my $150 estimation of the worth of the opinion in the interests of civility. I also note that you seem to be viewing this under a commercial transaction theory, rather than recognizing that our esteemed host engaged in a matter of deceptive trade practices and I should be seeking remedies under both unconscionable and deceptive conduct under consumer protection statutes. I would of course be willing to dispense with all this unpleasantness for a reasonable settlement.
8.6.2009 10:51am
Nice:

Even though the confirmation process was just a back-handed attempt to quash feminist jurisprudence, that attempt will only serve to amplify that discourse.

Maybe we should stop using back-handed attempts and try to quash it outright.
8.6.2009 10:54am
PLR:
The Catholics will now have their long awaited two-thirds majority, as Justice Stevens looks forward to turning 90 next spring.

And the Vatican can now turn its focus to Ginsburg and Breyer. Who could have seen this coming?
8.6.2009 11:11am
Thoughtful (mail):
Cato the Elder: "we have an academic feminist in our midst... semiotic hetero-normative..."

You may find her semiotic, but I don't think she's hot at all...
8.6.2009 11:12am
femiknowledge:

"The only type of '-ist' that belongs on the Court is 'textualist', 'originalist...'"


Textualism and originalism are both extra-constitutional principles, just as 'feminism' is. Why should we limit the -isms to those that only support entrenched systems of power? Or perhaps you can only get behind normative approaches that ensured there were no women in the room at the time of their creation?
8.6.2009 11:19am
U.Va. Grad:
And the Vatican can now turn its focus to Ginsburg and Breyer. Who could have seen this coming?

Who knew that the plan conceived by the descendants of the Knights Templar over 200 years ago and put into motion with the appointment of Chief Justice Taney would actually come to fruition one day?
8.6.2009 11:28am
egd:

Textualism and originalism are both extra-constitutional principles, just as 'feminism' is. Why should we limit the -isms to those that only support entrenched systems of power? Or perhaps you can only get behind normative approaches that ensured there were no women in the room at the time of their creation?

Darn those justices for interpreting the constitution to mean what it means, rather than what they think it should mean. Article V is mere surplusage when we have the Supreme Court.

Regarding your first question, the pragmatic answer is that entrenched systems of power have a history of working.

Regarding your second question, have you stopped beating your wife?
8.6.2009 11:39am
KenB (mail):
femiknowledge refers to "the same tired attacks trotted out against any strong woman . . . ."

So may I assume she would be cool with the nomination of Edith Jones----or does Edith Jones not count as a woman?
8.6.2009 11:42am
DiverDan (mail):

I would of course be willing to dispense with all this unpleasantness for a reasonable settlement.


Downfall, I'm sure that the hosts of this site would gladly offer to refund to you all site-specific charges or fees you paid for the specific purpose of logging on to this Blog (exclusive of ISP fees or charges, costs of phone, DSL, LAN, WiFi, or other mode of connection, and any and all other fees, charges or expenses of any type or kind generally applicable to either your use of a computer or access to the internet generally). Of course, if you (like I, and I assume the rest of us) paid no such fees or charges to access this Blog, then I do not believe that you can be a "consumer" for purposes of consumer protection statutes. As for your fraud claim, a prediction of future events is not a mistatement of a material fact. Even assuming that you could overcome that hurdle, I really doubt that you have any basis to show both reasonable reliance, in view of the clear disclaimer in the original post, and damages in the form of a change in position in reliance upon the original prediction (exclusive of any lost wagers, as those are not recoverable as tort damages).
8.6.2009 11:46am
Cato The Elder (mail) (www):

Regarding your second question, have you stopped beating your wife?

First of all, that's rape. Second of all, the archaic term "wife" is a patriarchal construction used to keep independent womyn in bondage who dare to try to define the terms, length and boundaries of their sexuality(s). Finally, you flaunt your gender bias - in progressive circles, we prefer to use the more apt term "partner" or "life partner".
8.6.2009 11:49am
11-B/2O.B4:
I have to believe that Femiknowledge is Sarcastro or another fan of the semi-subtle straw manning of opposing arguments. No woman in her right mind would claim such palpable nonsense, to the detriment of her feminist cause. I've run up against a few strident feminists in my day, but none were that completely imbecilic. I call sarcasm.
8.6.2009 11:55am
SuperSkeptic (mail):
Why should we limit the -isms to those that only support entrenched systems of power?

Please, always the marxist class struggle BS. Please...
8.6.2009 11:55am
rarango (mail):
What 11-B said
8.6.2009 11:58am
TalkingHead:
Could have been worse for GOP.

I predict a second vacancy this year -- Dems and confederates on the Court know that the midterm elections next year may result in a loss of a filibuster-proof majority. Look for a Ginsburg or a Stevens announcement in the coming weeks.
8.6.2009 12:05pm
ruuffles (mail) (www):
Politico is reporting that Voinovich is a yes. That gets us to 67-69.


Look for a Ginsburg or a Stevens announcement in the coming weeks.

The term ends in June, elections not until the following November.
8.6.2009 12:07pm
David M. Nieporent (www):
Textualism and originalism are both extra-constitutional principles, just as 'feminism' is.
Textualism is about as opposite as can be from an "extra-constitutional principle." How on earth can saying "Look at what the constitution says" be an extra-constitutional principle?
8.6.2009 12:09pm
Redman:
I havent changed the way I looked at this from the very beginning.

1. Souter was probably the most reliable liberal vote on the Court.

2. Obama was going to nominate another liberal; not a moderate or a conservative.

3. Obama's nominee was going to be confirmed, no matter what.

4. Sotomayor is not an impressive intellectural presence. She is not a leader. She is sort of like a female Souter. For that reason, she is the best the republicans could hope for. As a matter of fact, she is a blessing.
8.6.2009 12:11pm
Oren:

Given that it is unlikely Senators Byrd and Kennedy will be able to vote, this means the final tally should be 67-31 or 66-32.

I think we can fairly count their intent to vote in favor as a vote in favor.


1. Souter was probably the most reliable liberal vote on the Court.

You must be mistaking him for RBG. You know, short Jewish lady / former head of the ACLU.
8.6.2009 12:27pm
M N Ralph:

predict a second vacancy this year -- Dems and confederates on the Court know that the midterm elections next year may result in a loss of a filibuster-proof majority. Look for a Ginsburg or a Stevens announcement in the coming weeks.


Absent health reasons, I wouldn't expect another vacancy this year. No reason for anyone to knowingly go into a new term with the intention to resign part way through. And, as pointed out, there's time to resign at the end of term and get a replacement confirmed before the next election (see Souter-Sotomayor). Besides, Democrats are not likely to lose many, if any, Senate seats, and we're likely to get Snowe's and Collins' vote as well.
8.6.2009 12:31pm
SPO:
Sotomayor simply isn't that talented. Did anyone catch her response to Senator Kohl regarding term limits for SCOTUS. It was amateur hour. Worse, Sotomayor betrayed an inability to read a Supreme Court opinion. She asserted that Ginsburg's dissent would have affirmed the Second Circuit. Since Ginsburg's dissent did not address the plaintiffs' Equal Protection claims, there's simply no way to read the dissent as supporting the affirmance of summary judgment against the plaintiffs.
8.6.2009 12:31pm
srg2 (mail):
Benjamin Wittes is right on, as usual.
8.6.2009 12:35pm
Nikki Thomas (mail) (www):
I think they will still nominate her. There were oppositions to Hilar Clinton becoming secretary of state, but she was still nominated.
8.6.2009 12:39pm
MarkField (mail):

Textualism is about as opposite as can be from an "extra-constitutional principle." How on earth can saying "Look at what the constitution says" be an extra-constitutional principle?


Where in the text does it say to interpret the Constitution using textualism?

There are lots of ways to interpret a document. Textualism is just one, and it's not specified.
8.6.2009 12:43pm
cboldt (mail):
At least the Republicans are over the "confirm anybody who's qualified" baloney. It's way past time facing the fact that justice in court is a political matter.
8.6.2009 12:47pm
matt2009:
"The nomination of John Paul Stevens as late as 1975 received unanimous Senate approval in a mere 16 days."

I am fairly certain Justice Scalia received unanimous approval in 1986 - 98-0.
8.6.2009 12:50pm
ShelbyC:

Where in the text does it say to interpret the Constitution using textualism?


And I guess it wouldn't matter if it did, right?
8.6.2009 12:51pm
PLR:
And the Vatican can now turn its focus to Ginsburg and Breyer. Who could have seen this coming?
Who knew that the plan conceived by the descendants of the Knights Templar over 200 years ago and put into motion with the appointment of Chief Justice Taney would actually come to fruition one day?
That's one way of looking at it.

I just can't help thinking that if the number of blacks on the Supreme Court were about to be two (I know, that's crazy talk), or the number of Jews were about to be four (the horror!), or the number of born again evangelists were about to be three (to the lifeboats!), I would see a little bit of a debate, even if it were occurring mostly between crackpots and political hacks.

But a Supreme Court that is two-thirds Catholic is somehow utterly unremarkable. Sotomayor is a Hispanic with an XX gene pair that wrote a decision in favor the City of New Haven. End of bio.
8.6.2009 12:52pm
theobromophile (www):
While I agree taht this is a horrible system, I can't help thinking that Sotomayor is suffering for the sins of the person who nominated her.

I suspect that many Republicans would love to vote for her, but when Biden announced during the VP debates that he was proud of the way that he politicised judicial nominations, and when Obama voted against Roberts and filibustered, then voted against Alito, for political reasons, it was preordained that those two would not get a nominee through without a fight. Taste of their own medicine and all.

The American people - and Judge Sotomayor - suffer.
8.6.2009 12:55pm
Owen H. (mail):


Darn those justices for interpreting the constitution to mean what it means, rather than what they think it should mean



feh. All you mean is that you want them to interpret it to mean what you think it means.
8.6.2009 12:57pm
theobromophile (www):
"The nomination of John Paul Stevens as late as 1975 received unanimous Senate approval in a mere 16 days."

I am fairly certain Justice Scalia received unanimous approval in 1986 - 98-0.

That was right after Rehnquist, IIRC. The Senate didn't have much fight left in them.
8.6.2009 12:59pm
Cato The Elder (mail) (www):

For that reason, she is the best the republicans could hope for. As a matter of fact, she is a blessing.

Or... perhaps we could look not to install a judge who curiously likes to stuff cases she doesn't like down dark memory holes. One that isn't quite so racialist in her thinking, so much so that she saw for the city in the Ricci case by summary judgment, after passionately taking up its cause as her own during oral argument. Is it 2040 or 2050 when 50% of the minors in this country will be of non-White ethnicity?

Hyperbole, you scoff? From Wikipedia's article on Chinese South Africans (ref's removed):


Under apartheid, Chinese South Africans were discriminated against in various forms by the apartheid government. However, they were originally excluded from benefiting under the affirmative action programmes of the South African government. This changed in mid-2008 when, in a case brought by the Chinese Association of South Africa, the Pretoria division of the High Court of South Africa ruled that Chinese South Africans who were South African citizens before 1994, as well as their descendents, qualify as previously disadvantaged individuals as Coloureds, and therefore are eligible to benefit under BEE and other affirmative action policies and programmes. However, Chinese South Africans who immigrated to the country after 1994 will be ineligible to benefit under the policies, unlike Blacks who have moved to the country after apartheid. This means that out of a community numbering possibly as many as 300,000, only about 12-15,000 will directly benefit from the ruling.


BEE is destroying South Africa. By removing the productive people who are best able to tend the infrastructure, it hurts the majority of the Black population there, it makes them worse off than they would otherwise be. At least they were able to better feed their teeming masses with their higher standard-of-living immediately after the end of apartheid. I think it's going to be very sad when South Africa justifies all the malevolent racists, when it shows in the 2010 can't host the World Cup, because of its rampant crime and decaying infrastructure, directly mediated by exactly this sort of well-wishing jurisprudence. You don't think our Black Robed Superiors won't be able to justify this sort of twisted thinking, eventually? Well, you've got more faith than I.

Sotomayor is the vanguard.
8.6.2009 1:02pm
Gabriel McCall (mail):
I'm not sure that being asked to answer slo-pitch questions in front of bright lights and cameras qualifies as "suffering" for any useful definition of the word. To the extent that it is indeed suffering perhaps that is evidence of incapacity for the job.
8.6.2009 1:05pm
ruuffles (mail) (www):

BEE is destroying South Africa.

Apartheid now, apartheid tomorrow, apartheid forever! Amirite?
8.6.2009 1:09pm
ShelbyC:

All you mean is that you want them to interpret it to mean what you think it means.


How 'bout what anybody thinks it means? Nobody thinks that a prohibition on depriving folks of life, liberty, or property with due process of law means that you can't have a cross on state property. Nor does anyone think that a prohibition on compelling one to testify against onself means that a judge has to exclude voluntary testimony because some pro-forma warning wasn't given. And yet...
8.6.2009 1:10pm
Steve:
BEE is destroying South Africa. By removing the productive people who are best able to tend the infrastructure, it hurts the majority of the Black population there, it makes them worse off than they would otherwise be.

Don't you think it would be a lot more appropriate for a legislature to weigh arguments like this, instead of asking a court to say "Wow, South Africa is really having problems, I guess we need to rule affirmative action unconstitutional!" It's not like we have affirmative action because the courts mandated it, you know.

I would think that for a court to strike down a law for the reason that the same policy isn't working out well in foreign countries would be anathema to conservative legal thought.
8.6.2009 1:13pm
Recovering Law Grad:
I don't think it's a given that Begich will be voting for Sotomayor.
8.6.2009 1:22pm
SGD (mail):
I wonder how many more Republicans would still be deluding themselves that we could get back to the pre-Bork era through unilateral disarmament, and that it is their duty to rubber stamp every nominee, if the NRA's hadn't weighed in. The NRA even brought Hatch back to reality.
8.6.2009 1:28pm
U.Va. Grad:
Further confirmation, this time from the Plain Dealer, that Voinovich is a "yes."
8.6.2009 1:28pm
JK:

femiknowledge refers to "the same tired attacks trotted out against any strong woman . . . ."

So may I assume she would be cool with the nomination of Edith Jones----or does Edith Jones not count as a woman?

Do you really not understand the difference between, "women often receive X unfair attack," and "I would support any woman for SCOTUS nomination"? I don't actually agree with femiknoldge's assertion that those are ubiquitous attacks on all women nominees (I don't even recall them being used against Sotomayer), but that doesn't excuse a lack of basic logic skills.
8.6.2009 1:37pm
David M. Nieporent (www):
Where in the text does it say to interpret the Constitution using textualism?
Uh, you realize how silly this question is, right? After all, if one doesn't accept textualism, then it wouldn't matter if it did say that "in the text," right?
8.6.2009 1:38pm
24AheadDotCom (mail) (www):
The GOP did an excellent job in this matter, just completely rolling over for someone who was a member of this group, the group that promotes other groups like this:

lideres.nclr.org/content/groups/detail/2308

It's great to know that the NCLR has a supporter on the highest court in the land.
8.6.2009 1:39pm
Owen H. (mail):
The problem with the terms "originalism" and "textualism" is that both are frequently used by people trying to justify the interpretation they support. They are a lot like "judicial activism", which usually means "a decision I disagree with".

I'm still seeing most of the complaints about Sotomayor as sour grapes. She is far from incompetent, far from controversial. Had she made the decisions people are complaining most about by herself, they might have a point, but that isn't the case. Even in Ricci, the majority in the SCotUS had to create a new standard to follow, creating a new precedent in place of the one she and the rest of the judges followed.
8.6.2009 1:52pm
SPO:
"She is far from incompetent, far from controversial."

Oh, really, then please explain why she cannot read a Supreme Court opinion. Contrary to what Sotomayor said at the hearing, there is no possible reading of Ginsburg's dissent that supports the view that it would have affirmed the Second Circuit's decision in the case.

As for controversial, her views on the VRA and prisoner disenfranchisement are pretty controversial.
8.6.2009 1:56pm
JK:


Where in the text does it say to interpret the Constitution using textualism?


Uh, you realize how silly this question is, right? After all, if one doesn't accept textualism, then it wouldn't matter if it did say that "in the text," right?

Only if you use some extremely silly strawmen for the various theories of constitutional interpretation. If the Constitution clearly laid out a Textualist then far, far, more people would except that as the correct way to interpret the constitituion.
8.6.2009 1:58pm
Angus:
I wonder how many more Republicans would still be deluding themselves that we could get back to the pre-Bork era through unilateral disarmament

People keep saying the Bork hearings caused all of this, but facts belie that. Kennedy, Souter, Breyer, and Ginsburg all went through with nary a peep after Bork. Thomas had problems, but he was additionally handicapped by questions of whether he was truly qualified for SCOTUS in 1991.

The sea change to me seems to have been Bush v. Gore in 2000, when the political nature of the court was laid bare for all to see. Ever since then, things have gone to hell in the Supreme Court nominations.
8.6.2009 2:15pm
Angus:
It's great to know that the NCLR has a supporter on the highest court in the land.

Actually, yes it is. Like Thurgood Marshall from the NAACP, who I guess you would have opposed since he was a civil rights advocate for a particular race.
8.6.2009 2:18pm
femiknowledge:

Textualism is about as opposite as can be from an "extra-constitutional principle." How on earth can saying "Look at what the constitution says" be an extra-constitutional principle?


This statement reflects an impotent understanding of textualism, so perhaps I shouldn't expect you to have a full understanding of feminism until you can at least grasp "your own" constitutional approach. Textualism is not simply "do what the Constitution says." Rather, it suggests a literalist approach that is not necessarily supported by the document. (Indeed, the plethora of writings and commentaries offered by the Framers suggest that they also recognized that the document is more than simple language.)

Let me offer an example. If a statute read, "Deadly force may be used to save life and limb," could deadly force be used to save the broken branch of a tree? The life of a dog? The life of a fetus? A literal interpretation might not get you very far. (And any attempt to define words via common usages necessarily bleeds over into originalism, which is even further from the document itself.)

I don't mean to make this a critique of textualism. I merely want to suggest that it's not so easy to dispense with approaches like feminism by suggeting their "outside the document." Although the Constitution must provide boundaries (lest it become a useless document), it needn't be constrained by one brand of norms.


Regarding your first question, the pragmatic answer is that entrenched systems of power have a history of working.


Working for who? Perhaps working for you, but you have time to peruse legal blogs during the day, suggesting you've reached a place of at least relative comfort. (And admittedly, perhaps working for me?) But what about those who can't find a job because of continuing gender bias? What about those who find themselves in jail because of a system of laws structured to punish the minority more often than the majority? Is it working for them?


Darn those justices for interpreting the constitution to mean what it means, rather than what they think it should mean


If you think Constitutional interpretation is just a matter of digging up the "real meaning," you demonstrate a striking degree of naivete. That sounds almost akin to the "natural law" arguments of yesteryear.


Please, always the marxist class struggle BS.


I'm sorry, I missed where I raised the issue of class struggle. And even if you disagree with the "lingo," perhaps there really is something to learn by engaging the substance of the argument. I think to often those on Volokh love to mock, but neglect the rigors of real argument.
8.6.2009 2:18pm
Mark N. (www):
I think the better line of attack here would be on originalism rather than on textualism, since originalism clearly relies on extra-Constitutional documents that the Constitution itself doesn't suggest or authorize using. Plus, a lot of the same attacks textualists use against reliance on legislative history when interpreting statute apply to originalism as well.
8.6.2009 2:18pm
Matt B. (mail):
I may not like the nomination of Sotomayer , but to me she appears no more or less qualified that Alito was. I think the Republicans should give deference to the pick (as she's qualified "enough") and put themselves in the position of either (1) getting some deference in return when it's their turn again, or alternatively, (2) using it against the Democrats when they inevitably vote against the next Roberts-type for political reasons.
8.6.2009 2:19pm
Oren:

Uh, you realize how silly this question is, right? After all, if one doesn't accept textualism, then it wouldn't matter if it did say that "in the text," right?

Everyone believes that constitutional analysis begins with the text.

Textualists are distinguished in that they believe it also ends there.
8.6.2009 2:23pm
ShelbyC:
Yeah, those textualists. Always trying to apply the 1st amendment to dry-cleaners. (freedom of the press, ya know)
8.6.2009 2:25pm
M N Ralph:

The NRA even brought Hatch back to reality.



I suspect Hatch has more to do with the primary challenge he is facing. Of course, the NRA just put that much more pressure on him.
8.6.2009 2:26pm
24AheadDotCom (mail) (www):
This site used to attract the higher-quality trolls, now all it has left are those like "Angus". If anyone wants to know about the group that now has a supporter on the Supreme Court, see the link I posted above.

I don't consider it a good thing that millions of people over the coming decades are going to eventually find out what I know now.
8.6.2009 2:28pm
Cato The Elder (mail) (www):
Is Snowe even really a Republican, other than for the label? It seems whenever I see her name connected to some important issue, she's always championing something distinctively un-Republican.
8.6.2009 2:30pm
SPO:
"I may not like the nomination of Sotomayer , but to me she appears no more or less qualified that Alito was."

She doesn't have close to the talent. (Heck, she's nowhere near the talent of Miguel Estrada.) She cannot even discern whether a dissent in a Supreme Court case would have affirmed her decision or not. She stated to Senator Kyl that Ginsburg's Ricci dissent would have affirmed the Second Circuit. But since the dissent did not even discuss the Equal Protection claims of the plaintiffs, there's no possible reading of the dissent to claim that it would have affirmed the Second Circuit.

A basic error made by a 17 year vet of the federal bench.

Moreover, take a look at her answer to Senator Kohl on SCOTUS term limits. Confused is a charitable word to describe it.
8.6.2009 2:31pm
Seattle Law Student (mail):

Is Snowe even really a Republican, other than for the label?


This thinking is why the Republicans have 40 senate seats, and a similar imbalance in the house. No Republican that could meet your ideological standards could get elected in Maine. Instead of taking what you can get (like the Blue Dog Democrats), you'd rather have a shrieking minority.

In Washington State a few years back the Republican primary produced Ellen Craswell (sp?) as the nominee for governor. The election was over that day because she could never garner middle of the road support. As long as winning the primaries necessitates satisfying the howling fringe, the Republican party will be in trouble.
8.6.2009 2:48pm
Angus:
This site used to attract the higher-quality trolls, now all it has left are those like "Angus".
Pot. Kettle. Interesting how almost all of the links on your website are linked to...yourself. Self-referential much, are we?
8.6.2009 2:58pm
Oren:

I don't consider it a good thing that millions of people over the coming decades are going to eventually find out what I know now.

That will happen as soon as your stop beating your wife, no doubt.


Is Snowe even really a Republican, other than for the label? It seems whenever I see her name connected to some important issue, she's always championing something distinctively un-Republican.

That's for the ME GOP primary voters to decide, not you.
8.6.2009 3:22pm
M N Ralph:

Pot. Kettle. Interesting how almost all of the links on your website are linked to...yourself. Self-referential much, are we?


You should just ignore him Angus. Anyone who constantly spams the site with links to their blog deserves no better.
8.6.2009 3:24pm
MarkField (mail):

Everyone believes that constitutional analysis begins with the text.

Textualists are distinguished in that they believe it also ends there.


Exactly. In addition, doctrinal textualism involves far more than "simply" reading the words. It involves, for example, the claim that a word used in one place must have the same meaning as a word used in another; that words must be understood as they were generally understood in 1789; etc. IOW, "textualism" itself doesn't have a simple meaning, nor could anyone understand its implications merely by seeing the word.


I think the better line of attack here would be on originalism rather than on textualism, since originalism clearly relies on extra-Constitutional documents that the Constitution itself doesn't suggest or authorize using. Plus, a lot of the same attacks textualists use against reliance on legislative history when interpreting statute apply to originalism as well.


Agreed. As Oren noted, we're all textualists at the point of the plain meaning rule. But it's pretty rare that any interesting dispute can be solved that way.

Another problem with originalism (besides the ones you noted and in addition to many others I'll put aside for now), originalism isn't mentioned in the Constitution either.


Only if you use some extremely silly strawmen for the various theories of constitutional interpretation. If the Constitution clearly laid out a Textualist then far, far, more people would except that as the correct way to interpret the constitituion.


Agreed.
8.6.2009 3:30pm
24AheadDotCom (mail) (www):
If anyone has a better page that discloses what the NCLR won't tell you about themselves, please feel free to post it. DiscoverTheNetworks has a lot of information on them and other groups, but I've got a lot more information on the NCLR at least: over 150 posts about them since 2004. I'm sure the sockpuppets aren't trying to dissuade people from reading that page because of its contents or anything.

Meanwhile, I have a question: IIRC, this site was involved in the opposition to CruzBustamante because of his involvement with MEChA. Yet, when we have a SC nominee who was a member of a group that's funded and is now promoting MEChA chaters, they roll right over.

I mean, here it is, right on their site:

lideres.nclr.org/content/groups/detail/2308

The stick of dynamite, the war club, and the goal of liberating Aztlan. Yet, this site just rolled over.

Pochemu?
8.6.2009 3:37pm
frankcross (mail):
Where in the text does it say to interpret the Constitution using textualism?
Uh, you realize how silly this question is, right? After all, if one doesn't accept textualism, then it wouldn't matter if it did say that "in the text," right
?

Now, this is fascinating. I love the implication -- a textualist can't be a textualist (because it's not in the text) but a nontextualist could still be a textualist.

As for the plain meaning rule, I've found that the justices very systematically find meaning to be "plain" when it comports with their ideological inclinations.
8.6.2009 3:40pm
Pendulum (mail):
Be quiet, for you are delusional and have nothing to contribute, LoneWacko.
8.6.2009 3:43pm
Bpbatista (mail):
When the Supreme Court stops making political decisions, the confirmation process will be drained of (most) political considerations and confrontations.
8.6.2009 4:17pm
Bpbatista (mail):
femiknowledge -- sorry to puncture your self-righteous whining about supposed gender bias in the confirmation process, but John Bolton's nomination for UN ambassador was opposed by Democrats and the media because he is supposedly "hot-headed" and a "terror." Try again.
8.6.2009 4:23pm
David M. Nieporent (www):
Another problem with originalism (besides the ones you noted and in addition to many others I'll put aside for now), originalism isn't mentioned in the Constitution either.
The fact that the words mean what people who used them understood them to mean is inherent in the use of language.
8.6.2009 4:24pm
ShelbyC:
When my Mom used to tell me to be good, I wonder whose definition of good she meant.
8.6.2009 4:33pm
Allan Walstad (mail):

...doctrinal textualism involves far more than "simply" reading the words. It involves, for example, the claim that a word used in one place must have the same meaning as a word used in another; that words must be understood as they were generally understood in 1789; etc.

Sure, if words have changed their meanings and connotations since 1789, we're obliged to do our best to understand the meaning, to understand what was intended by the words used. Does this obligation stop with mere word definitions? I think not. (I'm not saying that you think so, Mark...I don't know.) I think we are also obliged to refrain from prying at the document, to find loopholes whereby to evade the clear, specific intentions of the framers. The most obvious example I'm aware of is the notion (that I learned about a few weeks ago on this blog) on the part of some legal "scholars", that one could evade the specific prohibition on amending the Constitution to deny equal Senate suffrage to the states--by, for example, first amending the Constitution to excise the prohibition, then amending it again to change the suffrage rules.

Well, the states still have equal suffrage in the Senate, but this kind of what I call shyster lawyerism has been used to permit the federal government to overrun the Constitutional bounds on its powers. In that regard, Sotomayor will doubtless fit right in.
8.6.2009 4:36pm
David M. Nieporent (www):
When my Mom used to tell me to be good, I wonder whose definition of good she meant.
Anthony Kennedy's, of course.
8.6.2009 4:45pm
http://volokh.com/?exclude=davidb :

Who knew that the plan conceived by the descendants of the Knights Templar over 200 years ago and put into motion with the appointment of Chief Justice Taney would actually come to fruition one day?

We did.
8.6.2009 4:47pm
Steve in LA (mail) (www):
A vote for "confirmation" is a vote for the controlling party and their socio-political agenda, nothing more nothing less. Not only is there no justification for Republicans supportting this foreign Socialist, there's no excuse for any member of the Causacian race in voting for this avowed anti -American anti white Socialist, and that's not even touching her judicial record which sucks too. But hey she'll show her true colors soon enough.
8.6.2009 4:48pm
Sarcastro (www):
Much like Steve in LA, I see "anti -American anti white Socialists everywhere." It's all the Democrats, and other people who voted for Obama! Only a few super-not-crazy people see the truth about how we're surrounded by anti-whites.

And don't get me started on those Bronx-born foreigners!
8.6.2009 4:53pm
Owen H. (mail):
How on Earth do you justify calling her "foriegn"?

And any argument that tries appeal to me as a "member of the Caucasian race", loses credibility immediately. It says far more about you than it does about her.
8.6.2009 4:55pm
arbitraryaardvark (mail) (www):
68-31.
8.6.2009 5:01pm
Seattle Law Student (mail):
The nice thing about Steve in LA and 24AheadDotCom is that they make Dangermouse seem moderate.
8.6.2009 5:10pm
Careless:
I'll give you Steve, but there's no way that 24 makes Dangermouse look moderate. He's just an extreme single-issue poster
8.6.2009 6:34pm
MarkField (mail):

I love the implication -- a textualist can't be a textualist (because it's not in the text) but a nontextualist could still be a textualist.


I've always thought of it that you can be a textualist if and only if you are not a textualist. Turns out there's a meta level for everything. Douglas Hofstader was on to something.


The fact that the words mean what people who used them understood them to mean is inherent in the use of language.


I thought originalists gave up on original intent 20 years ago. It's indefensible. The Iliad doesn't "mean" what Homer understood it to mean (which we have no possible way to know, if he even existed), it means what we readers understand it to mean.

No, words mean what the people who hear them understand them to mean. That's true at all levels of the law. A contract does not carry the subjective meaning of the party, but the objective meaning a reasonable reader would give it.

A large part of the argument between originalists and traditional interpreters is that they don't agree on the population which is relevant for "people who hear them". To an originalist, that group is limited to those who lived in 1789. To most of us, that group includes those who lived in 1789, but also includes everybody since then and us today.


I think we are also obliged to refrain from prying at the document, to find loopholes whereby to evade the clear, specific intentions of the framers.


I would not phrase it this way for two reasons. The first is a quibble: I assume you don't mean the "Framers", I assume you mean the "adoptors", i.e., those who voted to adopt the Constitution. The second is that I don't think we're limited to that time period. We're constrained by history and tradition, as well as by the meaning of words.

I do agree with your overall point that we should be straightforward in our interpretations within those constraints and not shysterish. I'm not sure, though, that you and I would always agree on when we were keeping within those limits. :)
8.6.2009 6:48pm
ShelbyC:

No, words mean what the people who hear them understand them to mean.


It gets a litte fuzzy. Listening is almost always an attempt to divine what the speaker intends to say.
8.6.2009 7:06pm
BigBo:
Why do we care so much about original meaning and intent? You don't have to a liberal to remember that the Constitution was enacted under a legal system that only allowed white, property-owning males to vote. How is that a legitimate legal document? And even if we forget about the voting restrictions, why do we revere a document created 200+ years ago by folks who are now long dead?

Shouldn't we favor an interpretative method that worships the founders just a little bit less?
8.6.2009 7:20pm
David M. Nieporent (www):
The fact that the words mean what people who used them understood them to mean is inherent in the use of language.

I thought originalists gave up on original intent 20 years ago. It's indefensible. The Iliad doesn't "mean" what Homer understood it to mean (which we have no possible way to know, if he even existed), it means what we readers understand it to mean.
I wasn't endorsing original intent as opposed to original understanding, but the analogy is flawed. I think the Iliad means what Homer understood it to mean, but I also think it's irrelevant, because the Iliad isn't a law, so if different people understand it differently, well, so what? But until I get to obey only the laws as I understand them, they have to be objective, not subjective. (And the only objective test is original understanding.)

A large part of the argument between originalists and traditional interpreters is that they don't agree on the population which is relevant for "people who hear them". To an originalist, that group is limited to those who lived in 1789. To most of us, that group includes those who lived in 1789, but also includes everybody since then and us today.
I'm not sure which group elected you spokesperson, but I think that "most of us" -- at least outside the liberal academy -- are originalists, rather than (what you call) "traditional interpreters."

By way of example, I have never encountered a legislator, liberal or conservative, who believed that a law he helped enact meant what people later decided it should mean, as opposed to what it was understood to mean when he voted for it.

By further way of example, 9 justices in Heller looked to 1789 to decide what the second amendment means. (They seem to have come to different conclusions, to be sure.)
8.6.2009 7:24pm
ShelbyC:

How is that a legitimate legal document? And even if we forget about the voting restrictions, why do we revere a document created 200+ years ago by folks who are now long dead?

Shouldn't we favor an interpretative method that worships the founders just a little bit less?


Uh, cuz if you don't its kinda hard to say that laws passed under it are legitimage, no?
8.6.2009 7:29pm
ShelbyC:
legitimagelegitimate
8.6.2009 7:30pm
Seattle Law Student (mail):
...and I thought a Legitimage was a new character in WOW...Now I'm sad.
8.6.2009 7:45pm
MarkField (mail):

Listening is almost always an attempt to divine what the speaker intends to say.


There are two problems with this:

1. The legal system uses the intent of the reasonable reader for ALL interpretation.

2. Republican government isn't one in which some listen while others command. It's a joint process of discussion among ourselves about how to govern ourselves. That means we don't "listen" to the Constitution, we engage with it as a dialogue.


the only objective test is original understanding


There is NO objective test unless you're God. Indeed, the whole concept of the reasonable person depends on an average of many different people each offering their own understanding.

In any case, originalism is the least "objective" test available. It's the most subject to political bias because it involves the most reasoning from uncertainty -- we can't possibly know as much about what people thought in 1789 as we do about what people think today.


I have never encountered a legislator, liberal or conservative, who believed that a law he helped enact meant what people later decided it should mean, as opposed to what it was understood to mean when he voted for it.


I don't think you help your case much by relying on legislators.

That aside, legislation, like all other legal writings, gets interpreted according to an objective standard under which the intent of the individual legislator is utterly irrelevant. Nobody who's ever had to litigate the meaning of a statute would be so foolish as your hypothetical legislator. Which may in itself explain a lot....
8.6.2009 8:37pm
RPT (mail):
"SPO:

She doesn't have close to the talent. (Heck, she's nowhere near the talent of Miguel Estrada.)"

Yes, that Estrada guy had a great judicial record.
8.6.2009 8:52pm
Leo Marvin (mail):
Oren:

Is Snowe even really a Republican, other than for the label?

That's for the ME GOP primary voters to decide, not you.

They're not Republicans either.
8.6.2009 8:58pm
Leo Marvin (mail):
In fact they don't even live in Maine. They're bussed in from San Francisco by ACORN.
8.6.2009 9:07pm
Bob from Ohio (mail):
Sotomayor is just like Alito. Technically competent, little personality Ivy League circuit judge. Dime a dozen like most justices.

Sotomayor is also slightly more conservative than Souter (other than women issues) so conservatives should be happy enough.

While I personally would generally defer to presidential choices, the belated recognition that the SC is a political institution can only be a positive in the long run.

The whole nomination circus is harmless. Nothing happened to Sotomayor, Roberts or Alito. Some silly questions from third rate politicians. Then lifetime tenure just like Scalia, Ginsburg and Breyer who had "easy" confirmations.
8.6.2009 9:08pm
Cato The Elder (mail) (www):


Is Snowe even really a Republican, other than for the label? It seems whenever I see her name connected to some important issue, she's always championing something distinctively un-Republican.

Oren said: That's for the ME GOP primary voters to decide, not you.

By golly, you're right. Not to worry, I wouldn't dream of subverting the democratic process.
8.6.2009 9:10pm
MarkField (mail):

They're bussed in from San Francisco


Damn gays. Bussing everyone without regard for their partisan affiliation.
8.6.2009 10:57pm
24AheadDotCom (mail) (www):
**************** (Seattle Law Student): I'm pointing out how SS was a member of a group that's currently promoting extremists and that gave an award to someone who proposed genocide. If you have a problem with something I've written, get specific instead of acting like yet another braindead BHO fan. This is supposedly a grown-up site; try to keep it that way.

[The Volokh Conspiracy allows pseudonymous and anonymous comments -- we've even had pseudonymous bloggers. When posting comments on this site, please respect the decision of those commenters who wish to remain pseudonymous or anonymous. If you feel you must "out" someone (a course of action I would discourage), please do it somewhere else. Thanks. -- JHA]
8.6.2009 10:59pm
Psalm91 (mail):
Self-referential.
8.7.2009 12:08am
SPO:
"SPO:

She doesn't have close to the talent. (Heck, she's nowhere near the talent of Miguel Estrada.)"

Yes, that Estrada guy had a great judicial record."

I didn't realize "talent" meant judicial experience.
8.7.2009 12:15pm

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