by hilzoy
As I said earlier, I would probably have voted to confirm John Roberts, on the grounds that almost anyone this President nominated to the Supreme Court would probably be worse. Unfortunately, today we see what worse would look like: Harriet Miers. Conservatives are, for the most part, upset. Bill Kristol is “disappointed, depressed, and demoralized”. David Frum:
“In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions – or to stand up under the criticism that a conservative justice must expect.”
“Think of her as a very capable indentured servant of the Bush family. (…) I think they’ve found someone whose personal loyalty to Bush exceeds even Gonzales’. And in some ways, I see this very personal, very crony appointment to be a response to being told he couldn’t pick his main man, Alberto.”
John Podhoretz (before the pick was announced):
“I am going to assume that this is a classic Bush head-fake gambit. If I’m wrong, I will spend the weekend banging my head against a concrete wall. This is the Supreme Court we’re talking about! It’s not a job for a political functionary!”
“But, in truth, we already know what’s going on here, and that the president, despite a magnificent farm team from which to choose a solid nominee, chose otherwise. Miers was chosen for two reasons and two reasons alone: 1. she’s a she; 2. she’s a long-time Bush friend. Otherwise, there’s nothing to distinguish her from thousands of other lawyers.”
“At the time, of course, I had assumed that some minimum degree of luminescence would be required, in addition to Presidential trust. Little did I know that being close to the President would turn out to be the sole criteria for nomination to the Supreme Court. (…) I haven’t double-checked the transcript from the press conference, but is everyone sure that he said “Supreme Court” and not “Secretary of Transportation”? The latter certainly seems somewhat more plausible…”
“Mr. President, you’ve got some explaining to do. And please remember – we’ve been defending you these five years because of this moment.”
And Erick:
“Me, the sources, everyone it seems was wrong. We’ve all heard the rumors, but not a one could believe the President would do that. (…) I think I’ll let the President fight this battle himself, for now.”
And just check out the comments on ConfirmThem.com. “Howls of anguish” doesn’t begin to describe it.
(The always reliable Hugh Hewitt, by contrast, writes: “The president is a poker player in a long game. He’s decided to take a sure win with a good sized pot. I trust him. So should his supporters.” But even he has, essentially, to rely on faith.)
Reaction from the left is best summarized by Matt Yglesias at TAPPED:
“it’s tempting to conclude that anyone whom the wingnuts dislike must be a good thing on some level. But au contraire! One of Bush’s truly unique abilities is to undertake major initiatives (farm bill, medicare reform, steel tariffs) that conservatives don’t like but which simultaneously don’t do anything to please liberals. This may be another such case.”
Yep. This is a nomination that shows us, once again, how little Bush cares about little things like a person’s qualifications to hold a job, and his lack of respect for the Supreme Court. That should not please anyone, and apparently it hasn’t.
“… and apparently it won’t”, perhaps?
The other day at TalkLeft there was a list of consensus great conservative candidates, and reading it I thought, well, these people are impeccably qualified, if Bush picked one we’d have to shut up and smile and suffer their conservative rulings in silence. Instead it’s cronyism and a mess. I so don’t understand why the latter is preferable to Bush.
Bush taps counsel Harriet Miers for Supreme Court
President Bush on Monday nominated Harriet Miers, White House counsel and a loyal member of the his
This might help explain the pick
Senate Democratic Leader Harry Reid was complimentary, issuing a statement that said he likes Miers and adding “the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer.”
At the same time, he said he looked forward to the “process which will help the American people learn more about Harriet Miers, and help the Senate determine whether she deserves a lifetime seat on the Supreme Court.”
Reid had personally recommended that Bush consider Miers for nomination, according to several sources familiar with the president’s consultations with individual senators. Of equal importance as the White House maps its confirmation campaign is that the Nevada Democrat had warned Bush that the selection of any of several other contenders could trigger a bruising partisan struggle.
So if Bush wanted to pick a candidate the Democratic Senate could accept, seems like Meirs was one he could pick. All the other women were too partisan.
This is Bush’s big “f*** you” to everyone on both sides. He’s the President and you’re not. He’s gonna pick whoever the f*** he wants and there’s nothing you can do about it.
He’s acting (unsurprisingly) like a spoiled child who’s been told he can’t do something (i.e. all the talk about how he would have to nominate someone more conservative to satiate the base, “the hell I do” was what I’m sure he was thinking).
Oops, forgot the URL
http://news.yahoo.com/s/ap/20051003/ap_on_go_pr_wh/bush_scotus
If Bush was going to give a f*** you, he would have picked Gonzalez.
If Bush was going to give a f*** you, he would have picked Gonzalez.
True. There’s always the possibility that Stevens will retire.
It just pleases me mighty fine, thank you, but I am one nasty SOB. Bout time anybody who thought we remained in normal or even disastrous political circumstances got a wake-up call. We are in catastrophic circumstances.
The Red-Staters will have their loyalty tested, and be further implicated in the corruption and have their own survival inextricably dependent on the survival of their masters.
All in, all the time.
Just deleted from Frum’s blog:
“I mentioned last week that she told me that the president was the most brilliant man she had ever met. To flatter on such a scale a person must either be an unscrupulous dissembler, which Miers most certainly is not, or a natural follower. And natural followers do not belong on the Supreme Court of the United States.”
via Atrios
Jeff: If Bush was going to give a f*** you, he would have picked Gonzalez.
There’s always the possibility that he was advised it might be unwise* to pick Gonzalez.
*Which is probably as strongly as anyone who works for Bush would dare phrase “Are you nuts, Mr President? The Abu Ghraib photographs go public in three weeks and you want to nominate a pro-torture candidate for the Supreme Court?”
My initial reaction consisted pretty much of: “who?”. My second reaction was that this has got to be a joke. I haven’t gotten around to one that’s better thought out yet because it’s an even more bleary Monday morning than usual.
I think I heard Reid on NPR this morning saying that she was actually a good choice, and some other people praising the selection, too. But none of that really means anything to me.
Hey, at least it wasn’t the COB of Halliburton.
Slarti, cheer up: just think who Kerry might have picked! đ
Al Gore?
Let the Red-Staters quote this nugget as insanity from the left.
This woman has been sitting next to the President for the beginning. I think the whole crew, certainly Miers included, should be in the Hague on trial. If there is corruption in this WH, if there is criminality, if there is a lack of ethics or honour, Harriet Miers is at its heart.
She is filthy, covered and dripping with slime, exuding swamp gas from every orifice. She is excrement. Yet the Senate Dems will look aside, and grant her the greatest appointed honor this country can bestow. Bush and Cheney and Rove will be laughing.
Power is being demonstrated. Surrender, Dorothy.
Cruising the blogs, here’s more: Michelle Malkin:
Right Wing News:
Feddie at Southern Appeal:
Via Wonkette, a profile from 2004:
On the ConfirmThem link in the main post, someone describes her as “Abe Fortas in a dress”, prompting someone else to defend Abe Fortas as a vastly better choice. You could not make this up.
If she’s so horrible and unqualfied, Why is Harry Reid saying she’s a good choice?
If you told me yesterday Bush would pick someone recommended by Reid, I would have said, “That’s how the system should work. Good on Bush”. So, uhh, guess I have to say good on Bush.
rilkefan: Personally, I’m saying ‘bad on Harry Reid.’
And Jeff: I don’t know that she’s horrible, exactly. That she has no discernible qualifications, that her main distinguishing characteristic seems to be fealty to Bush, that since there is no shortage of genuinely distinguished jurists this choice is a travesty: sure. But I know nothing about her substantive views.
[Ackbar]
IT’S A TRAP!
[/Ackbar]
Anyone have a better explanation?
Slarti: you laugh, but there’s a serious school of thought on the right-wing blogs that says: this must be part of a very clever scheme by Bush, whose details are alas not yet clear to us. The phrase ‘rope-a-dope’ comes up a lot. Check out the Anchoress, for one.
Freakin Finally!
“Mr. President, you’ve got some explaining to do. And please remember – we’ve been defending you these five years because of this moment.”
That has been the only way I have been able to explain to myself the loyalty to Bush these long years. This restores my faith in the sanity, if not the wisdom, of the opposition.
You know, hilzoy, I take stuff like that with every bit as large of a grain of salt (ca. 1 meter on a side) as I would, for instance, a claim that George Bush is a long-term plant of the DNC for the express purpose of discrediting the Republican Party.
But Uncle Karl is in charge, so anything could happen.
My problem is people are assuming this is all about cronyism. And are ignoring the fact that Bush might have picked her because she seems on the surface at least to be a more consensus nominee, if the Democratic majority leader recommended her.
People are making it out to be that Bush had many other viable political options. I’m not sure that’s the case, given his weak political standing.
Can the Democrats just abstain from voting on Miers and let the Republican senators choose to put her on the court or not? I think I’d like to watch that spectacle.
I’m always delighted by the various ‘rope-a-dope’ theories of the Bush administration’s behavior that get advanced by his supporters. There’s something very medieval about those exercises in political theodicy.
Cass Sunstein understates:
Ah, Mark Schmitt weighs in:
(His views on the nomination itself: “Miers is Fortas without qualifications — a very bad model for the Court.”)
And Ed Kilgore:
“If, as I’ve said, this appointment represents the giant balloon payment at the end of a 30-year mortgage the GOP has taken out with the Cultural Right, then Bush seems to be asking for yet another refinancing.”
Bush found another deficit he can run up up up.
Just like with Roberts, the litmus test isn’t Roe/Casey, it’s Padilla and Hamdan. And you can bet Ms. Miers passes the real test with flying colors. Pres. H. Clinton will wield executive powers undreamed of by her husband.*
Actually, her bio isn’t anything like Brownie’s: this seems to have been a real law practice, and I’d be interested to know what exactly she did for Microsoft and Disney.
It’s too soon to tell, of course, but this may be the best imperical test of Judge Silberman’s thesis of a Greenhouse Effect we’d ever get from this Admin.
* And we all know what the President’s response would be if you asked him what happens if all that executive power he’s added to the position gets into the hands of someone with whom he has profound policy disagreements: ‘ain’t gonna happen.’
Does this remind anyone else of the process for picking VP Cheney in 2000? “I have consulted with my closest circle of personal advisors, and we agree that the best choice out of everyone in the whole entire country is one of my closest circle of personal advisors.” How fortunate for Bush to be served and attended by such a retinue of the very greatest leaders and thinkers the nation has to offer! How fortunate, indeed, for us all!
Bush found another deficit he can run up up up.
I wonder how long his supporters will keep voting to raise his personal debt limit? We might find out (but alas, probably not).
CS
I have been searching to see where it says that President Bush can and will only nominate persons to the USSC that have been
“approved by” conservative right wing republicans. Can anyone help me with this?
Cassini, you might want to start with the President’s campaign speeches.
Olasky
Marvin thinks she is ok;she will be fine on social issues. I trust Marvin.
Levin at The Corner: “I am actually hoping there are no more vacancies during this presidency.”
— well, so am I, but I wasn’t expecting anyone at NRO to agree with me.
Paul: Can the Democrats just abstain from voting on Miers and let the Republican senators choose to put her on the court or not? I think I’d like to watch that spectacle.
I’d think the last thing we need right now is for the Democrats to be less engaged.
Not very many reported decisions out there. She lost the class certification issue in the reported decision in the Microsoft case, and won the personal jurisdiction argument in the reported Disney case. Both in Texas’ intermediate appellate court. Won a case for Bush in 2000 on standing grounds, lost her removal of another a couple of years back in the federal court.
There’s nothing wrong with having someone who’s actually worked these kinds of procedural issues sitting on the SC.
Sorry: collecting reactions is just too much fun, and I need all the fun I can get just now, since the rest of the news is too awful.
Joel Aschenbach at WaPo:
Originalisms (Yale Federalist Society):
Legal Theory quotes the Federalist Papers:
And the always delightful Article III Groupie:
Maybe Reid recommended Miers because whoever else was on the possible pick list was worse?
(I mean, if she’s that much of a nonentity, I do find it kind of hard to believe that if Reid had been asked “pick someone to be the next Supreme Court justice” he thought hard and out of all the possible nominees in the US…. picked Miers. OTOH, I can well believe he was given a list of half a dozen possibilities and told to say which one of those he would recommend.)
Here’s a few more, hilzoy.
From Slarti’s last link: a not-ObWi-safe reaction to Hugh Hewitt’s leap of faith. Very, very funny (though it’s worth glancing at Hewitt‘s post first.)
“Bush Nominates Totally Random Person for Court”
Wasn’t it William F. Buckley who remarked that he’d prefer to be governed by random persons picked from the phone book than any of the members of the faculty of Harvard University? Well, I suppose now he’s gotten his wish.
Hmm. Well, if the mediocre deserve a little representation, I suppose the same could be said of the below-average.
The good news, and the reason why this doesn’t bother me too much is that she’s already 60. So my reaction in a nutshell is: “She’s bad. But she’ll die. So I like it.”
Yes, I’m liking Hubris, but I keep forgetting it’s out there. This, especially, caught my fancy. Rated R for language, G for visuals.
“She’s bad. But she’ll die. So I like it.”
She takes care of her 93 yr old mother.
But her grandmother spells her so she can go on free-climbing expeditions.
She favors gay adoption, apparently, which should give the Anchoress a few moments pause once that sinks in. (The Anchoress is a Catholic lady who appears able to combine a perfect faith in God and the Catholic church with an absolutely terrifying faith in George W. Bush as God’s representative on Earth.)
Yep: she submitted this report, which includes not just this: “Supports the enactment of laws and public policy which provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child.” — but also this: “Recommends the development and establishment of an International Criminal Court.”
Heh.
Yeah, but the Catch-22 there is that, in the jurisdictions where it matters, adoption by a homosexual or gay couple is per se not in the best interests of the child.
Er . . . to be clear, that’s not what I think, it’s what gay-adoption opponents think.
Anything’s an improvement on a blanket ban, Phil.
Though I admit I was thinking mainly of the Anchoress’s horrified state of mind as she has to choose between “Bush can do no wrong” and “Gay adoption is EVIL”. I suspect she’ll fall down on her own personal side of the fence, which will probably be something like “Bush was sadly deceived in a wicked woman”. It’s sad, and rather horrid of me, but I do find the Anchoress amusing in a terrifying kind of way.
Now, if you can use the ICC to coerce China into allowing adoption of its many (many, MANY) orphans by gays…
Yglesias makes a point about early Democratic affiliations in the 70’s and 80’s showing opportunism.
But the one I like is about her schmoozing.
(I have no doubts as to her conservatism) Bush has appointed a tag-team to the court. Roberts can work on the other justices intellectually, while Miers flatters and flirts and cajoles and works on them emotionally. Uhh, this is not meant to be sexist, but it does appear that Miers largest qualifications seem to be in the political, networking, manipulative area. Another great legal intellectual ego might just be competition to Scalia and insecurity for Thomas, that is, resented and resisted.
I could see a very powerful team here.
Jes: I find people like her amusing in novels. In real life, they scare me. Consider Christine Maggiore (the HIV+ AIDS denier whose kid died of AIDS-related pneumonia): the capacity for belief not guided by facts scares me in the real world, where it has consequences.
What might be somewhat amusing is watching the Administration try to assure the base about this woman’s conservatism while keeping information from the public and the Congress.
“I’ll take Big Business Republicans for $200, Alex.”
“The answer is:
“Will vote for traditional big business values and doesn’t really care about the political desires of religious zealots.”
“Uh, who is Chief Justice John Roberts?”
“No, I’m sorry, it’s ‘Who is Supreme Court nominee Harriet Miers?’ ”
I’m (unfortunately) with Bob. I think we just got rolled again. In the best case, Reid made a deal with the WH and gave away something important. In the worst case, we just got a truly imperial Presidency.
And worry less about her competence – she’ll have clerks to tell her which way to vote. In the last years on the Court, apparently Marshall didn’t focus too much on the work.
Hilzoy: there’s a serious school of thought on the right-wing blogs that says: this must be part of a very clever scheme by Bush, whose details are alas not yet clear to us.
You know, this thought pattern comes up often enough that we should give it a name:
The “Intelligent President” theory, or IP for short.
Many decisions by the White House, such as the invasion of Iraq, made no sense at the time and even less afterwards. Republicans are therefore forced to believe in a higher entity to whom all these missteps are actually cunning moves towards a higher purpose. And that entity is George W. Bush.
Remember, Harriet Miers says he’s the most brilliant man she’s ever met.
The lack of evidence for IP shouldn’t trouble you, because it’s that very lack of evidence that makes the IP theory necessary and, evidently, plausible (to the Right, anyway).
Look for your local school board to mandate the teaching of IP in your district.
“Remember, Harriet Miers says [Bush]’s the most brilliant man she’s ever met.”
Maybe it’s just a really nasty bit of feminist sexism, she’s only telling us that she’s never met a smart man.
I thought of that, freelunch, particularly since you can’t be an unmarried adult any more without raising queries, so to speak.
(A Miers-Souter love match comes to mind; I think everyone at RedState would swallow their collective tongues and choke.)
But I’m very much afraid that she’s not that interesting.
Many decisions by the White House, such as the invasion of Iraq, made no sense at the time and even less afterwards. Republicans are therefore forced to believe in a higher entity to whom all these missteps are actually cunning moves towards a higher purpose. And that entity is George W. Bush.
earlier, during a “criticim = aid and comfort” discussion, i came across a corollary to your theory: to the True Believer, it is a given that someone who criticizes Bush is wrong; thus the True Believer’s task is merely to find out why that person is wrong.
Excellent addendum, Cleek. Look for a great Republican mind to give us the Summa Republica, comprehensively demonstrating the rightness of Republican presidents in all their deeds … Hugh Hewett seems to be a likely author.
Actually, now I feel bad, as if I’ve slandered the ghost of Aquinas. More of a Pio Nono figure is needed, for a declaration of (Republican) Presidential Infallibility.
“In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met.
And that, simply, is why she was nominated. Obviously if she can recognize the amazing brillance of Bush, she is clearly qualified for the SCOUS in Bushworld.
Against prohibitions on gay adoption, donations to Al Gore, raising taxes in Dallas to pay for education. This is going to be fun – I hope Hewitt has a large supply of that kool-aid he’s drinking, it seems that many on the right are going to need a refill.
Via Billmon, from the American Spectator’s blog:
Instead it’s cronyism and a mess. I so don’t understand why the latter is preferable to Bush.
Because Bush’s sole ideology is cronyism. This pick proves that more than anything.
There is now talk of among some conservatives about a filibuster of the Miers nomination.
I don’t think it has a chance of happening, but never the less my irony meter just exploded.
Vardibidian asks:
I would hope the Dems would get their opposition motors into gear, esp. given Miers’s anti-choice efforts re: the ABA.
Politicians are unfortunately very poor at following the rule that, when you don’t know what to say, you say nothing.
No. What on Earth would SCOTUS possibly have to do with impeachment?
“That she has no discernible qualifications,”
I knew it was a good idea to finally post this, rather than keep repeating myself.
Since George W. Bush nominated Miers, my presumption is that she’s a choice I’ll hate. So, setting aside discussion of Ms. Miers, myself, for the moment, I have to point out that the “qualifications” for the Supreme Court are, basically, wisdom, and ability to write. Nothing more, nothing less.
If we’re rejecting people because of lack of “qualification,” “qualification” being defined as “experience as a lower court judge, which only resembles being on SCOTUS at all insofar as it’s an appellate position,” then we must, to be consistent, reject and retroactively object to Earl Warren, Abe Fortas, Byron White, Tom Clark, Robert F. Jackson, James F. Byrnes, Wiliam O. Douglas, Felix Frankfurter, Stanley Reed, Owen J. Roberts, Charles E. Hughes, Pierce Butler, George Sutherland, Louis D. Brandeis, James C. McReynolds, and William H. Moody, for starters. And damn that unqualified Hugo Black.
I absolutely hate the idea that the SCOTUS should consist of only appellate justices. It’s never ever been that. It shouldn’t be that. That’s not the job. It’s an absurd technocratic misconception to reduce the job of the Supreme Court of the United States to being a glorified appellate judge. Appellate judges must follow what the Supreme Court thinks and says. The Supreme Court must follow their conscience and intellect.
These, it turns out, are different skills entirely.
In the long run, turning the Supreme Court into a self-perpetuating body of florified former SCOTUS clerks is a horrible idea, in my view. It’s a perversion of the political nature of the court, and of our tripartite system of government. The Supreme Court of the United States of America is, and must be, far larger than a set of super law clerks. It must stand for justice.
And appellate courts are not the only source of justice in the land.
Now let’s get back to savaging Ms. Miers, and keep an open mind about the right of the next Democratic President to appoint a non-appellate choice to SCOTUS, shall we? Heaven forfend President Bill Clinton had appointed that “unqualified” Mario Cuoma, after all. Or that sleazeball crony, George Mitchell.
I’d like to take responsibility for misspelling “Cuomo” in that last post.
“What on Earth would SCOTUS possibly have to do with impeachment?”
Rather obviously, in a direct sense, nothing more than providing a Chief Justice to preside, and indirectly, presumably someone is expecting something along the lines of a case that requires the President to surrender tapes — not literally, but a decision that the President must comply with the law, that sort of thing.
One can compare one’s seer-like visions of the future with another’s, but the question doesn’t seem to have a mysterious answer.
“And appellate courts are not the only source of justice in the land.”
Before I have to in response to someone, I should have preemptively noted that appellate experience isn’t bad, and I certainly wouldn’t want it unrepresented on SCOTUS. I just want it balanced with other perspectives.
And it should be obvious that I’m not arguing that all non-appellate nominees are equally good, nor that there shouldn’t be some reason to believe the nominee is indeed wise. I’m not, therefore, discussing, at the moment, Ms. Miers at all. I’ll be very pleasantly surprised should she turn out to be a choice I’m at least as comfortable with as Anthony Kennedy, say.
Oh, sorry, I should have asked what all this might have to do with Meirs being appointed.
“Olasky.”
Seems to mostly boil down mostly to saying that “she totally committed her life to Jesus.”
“I’d like to take responsibility for misspelling ‘Cuomo’ in that last post.”
As well you should! I merely wound up with a post with a typo. Clearly someone else is to blame. If not you, I would have pointed at Mayor Nagin and Parish President Broussard.
Well, if it gets John Podhoretz banging his head against concrete, and hence unable to write any columns for a while, it’s not all bad.
I tell you, if were on the right, it seems that the third way of ‘why is this bad? It’s only one seat on the Supreme Court’ for dealing with this nomination is the one I would go with.
So, setting aside discussion of Ms. Miers, myself, for the moment, I have to point out that the “qualifications” for the Supreme Court are, basically, wisdom, and ability to write. Nothing more, nothing less.
While I agree with the general point that experience as an appellate judge shouldn’t be a prerequisite to appointment to the Supreme Court, I think you’re overstating the case a bit. There is a craft to lawyering. I’d be perfectly happy with someone who had a distinguished record as a litigator–preferably with significant federal court and constitutional law background–and ecstatic if that person also had a term or two in Congress or a state legislature. Miers doesn’t have that. Her resume as a lawyer is no more impressive than many, many others’, and the distinctions she’s achieved appear to be in areas that reward networking and close-quarters politicking more than legal excellence. It’s perfectly possible to conclude that she’s unqualified (at least in the sense of “not demonstrably qualified,” which ought to be the standard here) without relying on her lack of judicial experience.
“Because Bush’s sole ideology is cronyism. This pick proves that more than anything.”
How did Roberts prove that?
Gary: I agree that ‘qualifications’ should not be read as ‘appellate court experience’. Personally, I think Miers is unqualified under a much broader definition. She’s not a particularly distinguished lawyer, or for that matter a particularly distinguished anything, and as far as wisdom goes, thinking GWB is the most brilliant man she has ever met more or less rules out her possessing much of it, in my book.
She’s not a particularly distinguished lawyer, or for that matter a particularly distinguished anything, and as far as wisdom goes, thinking GWB is the most brilliant man she has ever met more or less rules out her possessing much of it, in my book.
Twice elected President of the United States; appointed two Supreme Court Justices (including the chief, so far); invaded and overthrew the Taliban and Saddam Hussein (so far); passed massive tax cuts; presided over republican rule in the house and senate; and does whatever the f*** he wants.
He’s got “winner” stamped all over him, or maybe “tyrant.”
“There is a craft to lawyering. I’d be perfectly happy with someone who had a distinguished record as a litigator–preferably with significant federal court and constitutional law background–and ecstatic if that person also had a term or two in Congress or a state legislature.”
I don’t like what I see of Miers, but O’Connor wasn’t a very good Supreme Court Justice and she fulfills your criteria nicely.
Hilzoy: and as far as wisdom goes, thinking GWB is the most brilliant man she has ever met more or less rules out her possessing much of it, in my book.
Thinking it would be: saying it – and saying it a lot – is probably very wise, if you work in the Bush White House.
For a given value of “wise”, of course.
“He’s got ‘winner’ stamped all over him, or maybe ‘tyrant.'”
Generally speaking, the original Greek tyrants gained power via popular support, you know; it wasn’t a pejorative word. Analogically, a Miers-equivalent at the time would therefore agree. (Further analogy tends to break down there, unless anyone wishes to argue that we didn’t already have democracy, and that recognition of Bush’s tyranny will result in later development of greater democracy.)
I don’t like what I see of Miers, but O’Connor wasn’t a very good Supreme Court Justice and she fulfills your criteria nicely.
I don’t know much about O’Connor’s private practice experience, so I’m not sure how well she fits that criterion, but I’m also a bit uncomfortable with the idea that O’Connor has been a lousy justice. She’s certainly infuriating at times, and maybe if I read more of her opinions I would be convinced of her lousiness. OTOH, there’s a lot to be said for having at least one person on the Court who pays close attention to the facts and the practicalities and works at avoiding overreach (in the sense of opining more broadly than necessary to decide the case at hand). My tentative take on O’Connor is basically the same as my take on Scalia: I wouldn’t want a whole Court of them, but one isn’t necessarily a bad thing.
Having said that, cases in which O’Connor and/or Kennedy are the deciding votes do tend to produce some really ugly opinions.
84 comments and Katherine hasn’t weighed in? Should somebody call to check on her, maybe?
My tentative take on O’Connor is basically the same as my take on Scalia: I wouldn’t want a whole Court of them, but one isn’t necessarily a bad thing.
On O’Connor, I don’t mind the way she votes (I agree sometimes, I don’t others), but the opinions she drafts are awful. Pragmatism is one thing, but give the lower courts a chance to figure out what the rules are, okay? (This isn’t directly applicable to Miers, who neither seems to be the worst person in the world, nor to have any obvious qualifications for being on the Supreme Court.)
“Seems to mostly boil down mostly to saying that “she totally committed her life to Jesus.”” …Farber
The strength of the recommendation or at least forbearance of criticism is based on who Marvin Olasky is. A wingnut among the wingnuts. A Texas Christian conservative f the very highest rank.
….
I would oppose Miers on many grounds, but my opposition really doesn’t matter. What offends me is not a lack of qualifications; nor a close friendship or association with the President; nor the fact that she worked for the administration. What offends me is just how closely she worked with the administration, how near she was to the decision-making, that for years she vetted every document that crossed his desk.
Was many of our objections to Gonzalez based merely on a paper trail, or on an assumption that that he was closely involved with entire area of questionable and likely unethical if not illegal decisions? It is not “guilt by association” but “guilt by physical proximity” I am certain Harriet Miers saw and heard and read things that the Bush administration would find embarrassing, if not grounds for impeachment. Someone that close to every conversation should be disqualified. I am also certain if I knew what she knows I would call her completely corrupt, if only by acts of omission,
DaveL, that’s basically how I’ve felt about O’ Connor as well.
Sebastian, could you explain what you don’t like chez Miers? I’ve forgotten or lost track of where you are on some of the hot-button issues–but of course the cronyism issue and the lack of, um, obvious qualifications would be bright-red distractions. You don’t have to explain if you don’t like.
Along Gary’s lines of argument, and given some of the very complicated issues that often arrive in front of the courts these days, it would delight me to no end to see someone with superlative professional accomplishment in a non-legislative or non-lawyering field on the Supreme Court. Like an MD. Or a PhD economist.
O’Connor has certainly written some poor opinions, but she’s far from alone in that. I’m not a fan of 19-factor balancing tests, but trying to provide clear guidance to lower courts can become a license to distort the facts of the case in order to ride your own favorite doctrinal hobbyhorses (paging Justice Scalia!). Ideally we’d have Justices whose strengths complemented each other and whose weaknesses were balanced by others’ strengths. I don’t think we’ve had that in recent years. But an improved version of O’Connor (now with 40% more analytical rigor!) would be a valuable part of my ideal mix.
I just googled the Valley View Christian Church, which, according to Olasky, is the church Miers attends in Texas. Here is the mainpage (link), and here are this fall offerings in the ladies’ bible study group–their words, not mine (link). Biblical marriage, I suspect so. There are three options, two of which seem, on their face, perfectly ghastly. The latter, the six-week study of “Joy” through Paul’s letter to the Philippians will have a source text four chapters long–five pages, in my edition. Unlike many of Paul’s writings, this letter doesn’t directly address marriage. The central message seems to me summarized in 2:14-15: “Do all things without murmurings and disputings: That ye may be blameless and harmless, the sons of God, without rebuke, in the midst of a crooked a perverse nation, among whom ye shine as lights in the world[.]” I’m starting to get a sense of what kind of gender politics her chosen church advocates, at the very least.
I really do hope that I’m being unfair to Miers here. However, she is very likely to be more socially and politically conservative than O’Connor was. This administration has been extremely ideological and unusually cloistered, and she’s spent, what is it? 10 years?, at the heart of it.
Of course, giving social conservatives any reason to be happy about the Miers pick is probably counterproductive, so I’ll be quiet now until the VRWC ropes in the doubters. Then I’ll join with McManus in screaming in low, dark tones.
It strikes me that appointing dubiously-qualified Justices is a clever tactic if your strategy is to undermine using the Court as a final arbiter/interpreter of Constitutional issues.
For all that conservatives criticize “results-driven Court reasoning,” isn’t that exactly what they want the SCOTUS to do? Decide ahead of time to overturn Roe, Casey, Lawrence, Hamdi, Miranda and Gideon?
Miers’ being pretty much a blank slate so far as legal opinions and reasoning counts for less than her born-again Christianity, which occurred since her contributions to Gore and Benton, and thus negates those long-ago flirtations with moderate politicians.
Her probable decisions on Roe et al. can be inferred from that. The legal reasoning she’ll present for overturning those decisions is irrelevant, something her clerks can do.
thinking GWB is the most brilliant man she has ever met more or less rules out her possessing much of it, in my book.
Let’s not be hasty, hilzoy. She seems to have spent much of her life in Texas.
“…it would delight me to no end to see someone with superlative professional accomplishment in a non-legislative or non-lawyering field on the Supreme Court. Like an MD. Or a PhD economist.”
I have mixed feelings. I wasn’t trying to suggest that knowledge of the law, and most importantly, its methodology less than its substance, was either irrelevant or unhelpful. I do feel that diversity in life experience, in American cultural experience, and in knowledge of different fields, is helpful on SCOTUS.
I don’t want to go so far as to suggest that I want a majority of SCOTUS to lack legal training, though. While I wouldn’t be close-minded about having a couple of non-lawyers entirely on SCOTUS, I doubt I’d want many more, and I’d want to think carefully about each, although obviously one thinks carefully about the qualification of each nominee. But there certainly is a distinction between the SCOTUS and a 9-member superlegislature, and I’m not such a caricature of a liberal as to desire SCOTUS to be the latter.
In other words, I’d be much quicker to be comfortable with an economist with legal training, or a lawyer-economist, or just one on the SCOTUS, than I would be with a SCOTUS that was majority non-lawyer-at-all. Diversity on the Court should include appellate and legal experience, as well as political experience, and personal diversity, in my view.
Frankly, trying to pick only 9 human beings to be both wise, and not only from one small segment of society, is an almost impossible task to do by any consistent or sensible criteria that winds one up with a consistent result, it seems to me. The whole endeavor is bound with arbitrariness, although that’s also no excuse for justifying Roman Hruska’s “even the mediocre deserve representation” line of thought regarding Nixon’s nomination of Carswell, or any given nominee.
Part of the reason for focusing on “qualifications” and appellate experience is to try to bring some rationality to the system, and it’s entirely understandable. It’s something of a chimera, because ultimately there will be no such consistent and full rationality, and because trying to strain all the potential candidates through such an exclusion winds up excluding too many good people while guaranteeing nothing but that only one category of people will be on SCOTUS, but the truth is that there’s no real way to determine if someone is properly “qualified” for SCOTUS save through hindsight. The rest is just guesswork, or picking only one very narrow type of candidate.
With regards to Harry Reid’s place in all of this, I don’t know what sort of deal he may have cut, or even whether he’s cut any. However, all of the quotes of public praise that I’ve found indicate that he called her the girl with a great personality. For a Supreme Court nominee the praise was extremely faint.
It’s probably obvious, but what disturbs me about Olasky’s assurances about Miers to the faithful (and, yes, Bob, I’m mildly familiar with Olasky), is the, well, obvious: that Christian conservatives should find it reassuring to hear that a candidate about whose legal positions they know little is One Of Our Kind Of Fundamentalist Christians are being assured, in essence, that legal philosophy and the law matter far less in the choice of this nominee than the notion that her Properly Moral Christian Beliefs will steer her to being The Right Kind Of Justice.
Regardless of any specifics, the notion that that’s a respectable line of argument in our system is, to say the least, distressing. (I doubt I’ll find much argument here, but if anyone would like to, just try switching “Christian” for “Satanist” or “Hindu” or “Shi’ite,” and see if you still want to make the argument.)
Obviously, surprise that anyone would make that argument is the furthest thing from my mind. But what I have to work on fathoming is how people can actually justify that sort of reasoning in their own heads. “The law should be determined according to how it matches with Christian principles”?
I mean, how does Olasky’s line of assurance actually play out in the heads of those he seeks to reassure? “Adherence to Christ trumps law”? “The more Christian law is, the more just it is”? “A good Christian couldn’t vote for immoral law”?
Anyone want to help me out here? Ideally, a supporter of Miers and Olasky would answer far more interestingly and helpfully than an opponent, but an articulate one is unlikely to respond here, odds are.
I don’t mean to go out on a limb, Gary, but I think that Bob’s Olasky line is meant to be ironic. If it’s not, the Rapture is at hand.
The Reid endorsement is the thing that I find most bizarre. Here is I think the most complete account of it.
I have a job these days…started last week. No comments during the working day.
I don’t know a damn thing about Miers.
If she stonewalls at the hearings, as I fully expect her to, I am really going to start to get annoyed. Ciphers can work out well–Souter’s my favorite current justice–but I don’t like it when the administration knows someone very well and we don’t know anything about them.
I’m not real sure what he’s thinking politically here. Wouldn’t someone like McConnell or Glendon seem both much better qualified and harder for the Democrats to attack in good conscience, and MUCH more congenial to the right? Though they would not be safe choices for Bush if executive power is the real litmus test.
“I don’t mean to go out on a limb, Gary, but I think that Bob’s Olasky line is meant to be ironic.”
Obviously Bob was conveying his impression of what Olasky and like-minded folks think. Um, I’m not sure what else to say, save that if that wasn’t obvious, well, I really don’t know what we’re talking about, beyond what degrees of obviousness might be. Which is to say that I don’t know what we’re now talking about, I’m afraid.
I heard Reid on the radio. He was enjoying himself, I think, praising Miers as a “trial lawyer”, with emphasis. I think he may have caused a run on blood pressure meds in right wing circles…
You know, I read the article LJ links to, and I see Reid’s picture, and I see him saying to himself in the shower one morning — these guys are so frazzled after Iraq and social security and Katrina and all, let me mess with their heads a little and see what kind of dumb thing I can get them to do. So he did, and now Miers is nominated.
Nonsense, of course. Couldn’t be. Never happen.
But .. now go back and look at the smile on his face.
My historically informed take.
I was just worried you might have missed it, from having assured Bob that you were “mildly familiar with Olasky”. That not being the case (that you missed it, not about your familiarity with Olasky), I can give an Emily Litell-esque ‘never mind’.
Here’s the New Yorker article on Reid, which mentions Miers at the top. Keeping idook and Amos in mind, reading the last paragraph of the New Yorker article, and I begin to wonder if Reid just punked Bush.
Olasky: Also a former Marxist-Leninist, as I recall.
Interesting, this constant swerving from radical ideology to radical ideology by the neocon Right. They’d have murdered a lot of people in a less flexible political system.
“Anyone want to help me out here? Ideally, a supporter of Miers and Olasky”
I saw Olasky spend two hours explaining why Wilson’s unrepented adultery in 1905 was the cause of WWII, with references to David & Bathsheba and Bill Clinton. Not certain if it was before or after 9/11, but Olasky is too slick to directly say the blowjob caused the Towers to fall, but he might believe it.
History is the expression of God’s will thru the instrumentality of men.
You would have to ask him and his followers about the details, all I was saying is that if Olasky says Miers will not go Souter, many will believe him. He would be among the first to complain if he had doubts.
And yeah, I presume he thinks the faithful will always be righteous.
“My historically informed take.”
I can almost grasp what one aspect of what it was like to go to Yale/Harvard insofar (beyond my experiences with Harvard) as I spent a time living in New Haven as the sweetie of a major Yalie, then majorly active, in the late Seventies, in the Party of The Right, thus letting me in on the kids of the day, such as Rick Brookhiser, Scott Griswold, and many more obscure folk, it turns out.
There was, unsurprisingly, a lot of sleeping around, a lot of politicking, a lot of factionalism and conspiring, and a lot of sensing what folks were like, some right and wrong, and some only good for then, not as predictors for the future.
Which is all to say that historical takes are good, and there even lots better when you know the opinions of some of the folks who slept with those who uttered them.
And if that isn’t privilege, I don’t know what is. And that’s pretty much a major difference between being able to hang at Harvard/Yale, in our country, and not.
In my opinion. (And sheesh, um, if Former Sweetie ends up reading this, um, thanks, and I still love you, and apologies, and thanks for not killing me for using our lives this way.)
Of course, I have other sources of input into this sort of thing, and so does everyone reading this.
On the other hand, David Letterman just made fun of Miers because of the insane fact that she hasn’t been a judge. So my train of thought is lost, and I’m back there distractedly fighting against morons, mentally, rather than Bush. I blame popular culture. Yes, she’s not been a judge. That’s reason enough to oppose her. Whatever. Down with Earl Warren!
“…(beyond my experiences with Harvard)….”
In case there’s any confusion, that’s as a visitor, temp employee, participant in student fairs, and the like. Not as an enrolled and admitted student or teacher.
“Here’s the New Yorker article on Reid, which mentions Miers at the top.”
Well, yes, isn’t it, and doesn’t it?
Sorry, Gary, I missed where you flagged the bit about Harriet Miers in that article.
“I missed where you flagged the bit about Harriet Miers in that article.”
I didn’t. I hadn’t meant to imply I’d flagged Miers at any time in the past. In my prior mention of the profile of Reid in the NYorker, I’d merely meant to note that I was familiar with it.
“…as I spent a time living in New Haven as the sweetie of a major Yalie, then majorly active, in the late Seventies, in the Party of The Right, thus letting me in on the kids of the day, such as Rick Brookhiser, Scott Griswold, and many more obscure folk, it turns out.”
That turned out badly phrased, much as I hate to draw further attention to this. I meant to say that she was involved in the POR, not me. My former phrasing makes that unclear.
The Rapture is always at hand. It’s practically doctrine.
I plan to be Left Behind. (Slarti, you want to be Right Behind?)
In practice, I’m usually just Behind.
Frequently, a Behind.
I meant to say that she was involved in the POR, not me.
I inferred as much. Your prose was clear to me. I’m guessing you’re roughly Doug Henwood’s age–did you know him at the time?
The Rapture is always at hand.
While you say that, I am sure that God was waiting for this film to be completed.
“Above all else, the film will be something that is just plain exciting to watch!”
I’m sure God’s looking forward to it too. Deity likes a good laugh.
Good lord:
Ken Mehlman, chairman of the Republican National Committee, yesterday held a conference call with conservative leaders to address their concerns about Miers. He stressed Bush’s close relationship with Miers and the need to confirm a justice who will not interfere with the administration’s management of the war on terrorism, according to a person who attended the teleconference.
From the Note
“Not interfere with the management of the war on terrorism?” I don’t know what to say.
“Not interfere with the management of the war on terrorism.”
I can’t wait until the NRA realizes that the next target of the so-called War on Terror is the Second Amendment. Let’s just call it the War on Civil Liberties.
Deity wishes that was written by Byron, no doubt.
From today’s news conference:
QUESTION: Mr. President, of all of the people in the United States you had to choose from, is Harriet Miers the most qualified to serve on the Supreme Court?
BUSH: Yes. Otherwise, I wouldn’t have put her on.
Remind you of anything?
Maybe it was an inadvertent slip, but the salient part of Ken Mehlman’s comment, IMO, is italicized below:
“…and the need to confirm a justice who will not interfere with the administration’s management of the war on terrorism.”
A succint encapsulation of “Bushism” in action: It’s all about Dubya, it’s all about the power, it’s all about keeping that power in the “right” hands, and, as usual, political considerations trump everything else (like say, the quality of the collective judicial intellect of the Supreme Court).
Feh.
Katherine: McConnell or Glendon seem both much better qualified and harder for the Democrats to attack in good conscience, and MUCH more congenial to the right[.] Though they would not be safe choices for Bush if executive power is the real litmus test.
Which it is, as Ken Mehlman confirms via Ugh’s comment at 10:59 above.
(Hey, time stamps are back! Congratulations to whoever made that work.)
This is the serious issue, which is what pains me as Dem partisans welcome Miers as “not so bad” or pretend to. Nice work, giving away the country to a tinhorn dictator backed by a corrupt machine. But who’s counting?
If she gets confirmed, we could see some very interesting opinions from her when she tries to justify her votes in favor of the Bush Administration, whatever the issue may be or no matter how ridiculous their position might be. And wouldn’t it be great to see a discussion between her Scalia and Roberts when Scalia and Roberts won’t go the administration’s way? And how neat will it be to see her do a complete 180 if a Democrat wins in 2008?
Yes, Mehlman’s statement regarding executive powers and the War on Terror is troublesome. “Troublesome” being one of those civil understatements we use to point shyly at scary things.
And, this fetish with personal loyalty? What possible reason could Bush have for desiring rigid loyalty to him from a Supreme Court Justice after 2008? Inquiring minds are probably a little afraid to find out.
Possibly he thought there might be worse things than utter mediocrity. For instance, the indifference to the plight of the disadvantaged that brought us this.
Seriousness quotient: 0.2 out of 10.
Take it away medium lobster:
these qualities pale before those of the fabled jurist Mr. Bush passed over to nominate [Miers]: the president’s favorite rock.
A prized possession passed down through the Bush family, the rock has years of loyal service to its name. It has demonstrated a remarkable versatility over its tenure: it has been lined with felt for desktop use, brandished drunkenly at parties, waved around during cabinet meetings to mouth-powered spaceship noises
“Inquiring minds are probably a little afraid to find out.”
Not this one. Nope. This inquiring mind burrows and rolls in such speculative subjects like an otter in shallow water or a hunting dog in roadkill.
“I have said in the past that I would like a nominee with a proven track record on important issues to all Americans and whose judicial philosophy is well-formed. I am not yet confident that Ms. Miers has a proven track record and I look forward to having these questions answered.” …Sen Brownback, today. Bring on those committee hearings!
Sen Brownback:Ms Miers, do you have a proven track record?
Miers:Yes, Senator, I do. 39 seconds, and 88 centimeters
Brownback:And a well-formed judicial philosophy?
Miers:Very well-formed, Senator, if I do say so myself.
Brownback:Good enough for me. I reserve the balance of my time.
There are people, not to be named, who would vote for this boob for President.
Here’s a question, what is Bush’s reaction if Miers is rejected by the Senate? For a man who places a huge amount of stock in loyalty to have one of his most loyal friends be rejected, I would think he would become enraged. And the question would be how would that rage manifest itself?
Does he just then turn around and appoint Gonzales? Does he try to recess appoint Miers? Any thoughts?
Here’s a question, what is Bush’s reaction if Miers is rejected by the Senate?
I don’t know, but I wouldn’t mind finding out.
DaveL:
In any case of a Supreme Court nomination, there is always a certain level of “speculation” involved: I have been reading a lot of blog-commentary on the Miers nomination (yeah, I know, I hafta get a life!) – and one speculation which I have seen crop up a couple of times, is that naming Harriet is actually a brilliant coup on W’s part: since, if she is confirmed, he has a loyal family crony on the Court (for years), and if she is rejected, he has the opportunity to then name a real wingnut to SCOTUS – whose (otherwise unpalatable) candidacy will get by (even if by a small margin), since, the theory goes, the Democrats/non-insane-ideologue Republican “opposition” will have shot its wad on Miers; and therefore ANY troglodye who follows will likely be confirmed.
I dunno about these Machiavellian speculations: but if the Bush WH needed to find a loyal “soldier” to volunteer for sacrificial-lamb (or is it a goat?), to allow them to push Scalia/Thomas II for next time Harriet Miers seems to fit the bill just fine.
JayC: I don’t buy the odder speculations myself. This nomination has harmed Bush with his base. They are the ones who are most vocal in opposing this, and while they don’t really have anywhere else to go, their staying home in the next election cycle could do serious damage to the Republicans. For whatever reason, Senate Democrats have not been nearly as out front in criticizing this, and thus will be (by comparison) more able to block the next one than they would have been had they had to spend a lot of political capital opposing, oh, Janice Rogers Brown.
I think Bush just shot himself in the foot by being petulant.
(Btw, can anyone explain to me why the right-wing blogosphere is so taken with Brown? Isn’t there some other way conservative candidate who is a bit better at framing arguments, and a bit less nuts?)
(Btw 2: any conservatives want to comment on Miers?)
My comment on Miers is that I want a conservative intellectual to help drag back some sense into jurisprudence, I don’t want just a reliable conservative vote. Miers appears (at best) to be merely a conservative vote. That doesn’t thrill me at all.
Btw 2: any conservatives want to comment on Miers?
She has hack written all over her.
(I’m on a conservative hiatus until January, 2009).
Not that I have a say, but if I were Reed or Dean, I would try to get all the Democratic Senators to either vote No or abstain, and let Miers pass or fail based soley on the Republican Senate vote. No filibustering necessary.
(I oppose her based on the crony meme — she’s got to know where all the bodies are buried. Not good for the country.)
via NYTimes;
“To the best of his recollection, Mr. Bush said, he had never discussed abortion with Ms. Miers.”
Ahem..excuse me but what a effing liar.
Sebastian: that’s pretty much how I feel, except for the part about wanting her to be a conservative intellectual đ — Though I would be a lot happier with a conservative intellectual than a hack, so long as the c.i. had a genuine commitment to getting the law and the argument right, as opposed to being a conservative intellectual ideologue.
Miers has the potential to finally bridge the gap between left and right, I think. If only she could do it in a good way.
And about the last comment: there are, of course, ideologues on both sides, and I didn’t mean to suggest otherwise. None of them make me happy.
There is no such thing as a “conservative intellectual,” but other than that, who could have a problem with your request?
I have even less to say than you do, not that that’s unusual. Except for that I’d be more hesitatant to project any sort of unevidenced reason for the appointment onto Bush. Absent anything solid, though, we have little else. So I continue being baffled: I WANT to comment, but the gun of commentary is unloaded.
JayC, I’ve seen those speculations, too. I have a very hard time believing that Bush actually planned the nomination to achieve those goals, but it’s conceivable that the game could play out that way, which leaves me uncertain what I think about how Democrats in the Senate should deal with the nomination. I’m somewhat sympathetic to the idea that this is a terrible nomination but the next one might be even worse, which would tend to suggest focusing the confirmation hearings on her competence rather than her ideology and letting the Republicans self-destruct over the ideological stuff, but I’m no political strategist (thank God).
“can anyone explain to me why the right-wing blogosphere is so taken with Brown”
For kicks, I’ll take a stab.
1)Black woman, reasonably young, quite smart, should be confirmable.
2) Conservatives, IMO, want to change the range of plausible discourse on methods of Constitutional interpretation. An example is taxes, up until the late 80s taxes were simply a policy tool, up, down sideways as needs and whims dictated. Now, to a large extent, it is very difficult to even discuss significant tax increases.
Conservatives have made very little progress in limiting the acceptable methods of Const interpretation. Even Roberts would view his “minimalism” as simply the most intellectually compelling of choices. The strictest of conservatives were hardly excited.
Rogers-Brown frames her Constitutional Theorey as a directly moral crusade. There is a force to her rhetoric and positions that completely devalues the alternatives…not intellectually, or scholarly, but ethically. It is not an intellectual game. And so she might drive the competing theories out of the discourse, out of the range of plausibility. She might be revolutionary.
Just a little more. Jack Balkin has done a great job of showing that Scalia and Thomas have been very “activist” judges, voting to void legislation much more often than their more liberal colleagues.
But Scalia and Thomas can still call their decisions originalist, or literalist, or strict construction, or whatever. And this is useful. However the actual cases might be decided, I guess there is very great value in getting to a point where there is only a very limited language of justification open to justices, when all justices would have to defend their decisions with a conscribed discourse.
It is really kinda Stalinist. No offense, Sebastian.
I thought voiding legislation was a legitimate function of SCOTUS. Well, I’ve been wrong about this sort of thing before.
“I thought voiding legislation was a legitimate function of SCOTUS”
Oh, cmon. You never heard a conservative professing “great deference” to the legislative branches, seeing as how they are closer to the people. Like Bork, or Roberts recently. Ok, I will believe you have indeed never heard of that.
Wold you like cites on the discussion, in order that you mau inform yourself on “judicial activism”?
I’d like to see some cites, since you’re offering.
(I’d been pretty much sticking with the standard leftist moonbat understanding that JRB was a frothing lunatic, and so I overlooked rational underpinnings of any sort to her position.)
Bob, you are confusing different understandings of ‘activism’. Some define ‘activism’ as the court taking action against the legislature. Under that definition Scalia is often an activist.
I don’t use that definition and frankly I don’t thinnk that definition is particularly useful or correct. When a conservative uses the word activism he typically means when the court chooses to act (or sometimes not act) with respect to the legislature in a fashion which is contrary to what the guidance of the Constitution would dictate. To say that the first (bad) definition doesn’t get the same result as the second is “Stalinist” is to completely misunderstand what is going on–especially since the view that all court action might be called activist is more recent than the conservative definition. If you are going to use the inflammatory term properly, it would be correct to say that some critics of conservative jurisprudence have wilfully misinterpreted the meaning of ‘activist’ so as to argue with, purge and then execute a strawman. No more offense intended than your comment.
Sigh. Jack Balkin is not apparently searchable, and he had a pretty good series on the subject. “Judicial activism” is used in a plethora of ways, and the specific arguments dealing with anti-majoritarianism are a little hard to sort from the rest. And Lord knows, lawyers love to argue.
Balkin1 Many included links
Scott Lemieux
Today, Village Voice
Maybe judicial review + activism would give better results. In any case, it was not that directly relevant to my argument, not my answer to hilzoy, which was the original point.
some critics of conservative jurisprudence
And some conservative Congress-people. I’m too lazy to google it, but I seem to recall a lot of chatter (particularly around the time of Schiavo) about whether judicial review was democratic (a fair point of argument) that came out as “we won, the activist courts should rule the way the people want.”
So let’s not pretend the distinction you’re making is obvious or even self-policing.
But Sebastian, would you not agree that “contrary to what the guidance of the Constitution would dictate” is frequently a debatable issue? Even Brother Thomas and Brother Scalia disagree from time to time. And is it not fair to suggest that many conservatives use “judicial activism” to mean “decisions I don’t like” as opposed to any really thought-out approach to consitutional interpretation? It seems to me that a lot of popular “originalism” is basically just rosy-eyed nostalgia for an imagined 18th century political order of being left alone by the gummint, and among many other things, it’s never seemed to me that that approach makes any serious effort to deal with the impact of the Civil War and its aftermath on our fundamental understandings of government.
And given that conservatives’ favorite “originalists” themselves disagree from time to time, and that future justices are likely to have views of their own as to what the framers really meant, isn’t it a reasonable to define as “activist” a jurisprudence that believes that any precedent, however long-standing and well-established in our political structure, should be overruled if it’s contrary to five Justices’ views of original intent?
In case it’s not clear, I’m being serious, not snarky. I respect your thinking on these issues, but I’m skeptical.
“To say that the first (bad) definition doesn’t get the same result as the second is “Stalinist” is to completely misunderstand what is going on..”
You and Katherine have gone on longer and more deeply on the subject than I could dream of. My use of “Stalinist” was directed precisely on the desire that there be one and only one “correct” definition of judicial activism.
…
“so I overlooked rational underpinnings of any sort to her position.)”
Believe it or not, I do take arguments against Marshall and Marbury vs Madison seriously enough to read long pieces on the history of judical review, likely without understanding a word.
But there is a universe of discussion of Lochner etc out there, and I wasn’t pretending to much knowledge or expertise.
When a conservative uses the word activism he typically means when the court chooses to act (or sometimes not act) with respect to the legislature in a fashion which is contrary to what the guidance of the Constitution would dictate.
Can you cite a case, any case where the Supreme Court intentionally chose to act “in a fashion which is contrary to what the guidance of the Constitution would dictacte”?
How about Lawrence? As Slart says, voiding statutes that conflict with the Constitution is part of the Court’s job. You may not think a state anti-sodomy statute conflicts with the 14th Amendment, but I think it does. Not because I’m intellectually dishonest or strictly results-oriented, but because that’s what I think “liberty” means. The Constitution doesn’t say — doesn’t provide guidance, whatever that means — that liberty does not include the right to engage in sodomy, nor does it say, or provide guidance, that the scope of the term “liberty” is for all time restricted to what a few rich white men might have thought it meant in 1868. I’m not saying that the Constitution changes, I’m saying that as time goes on we become mature enough, as a society, to realize the full extent of the limits on state intrusion on the rights of individual human beings that we’ve inherited. Statutes denying marriage licenses to couples of the same gender were made unconstitutional in 1868. It’ll be a few years still before we’re ready to face up to this, but we will eventually.
If the Constitution was perfectly clear in permitting state regulation of individual behavior, I might be more sympathetic to hearing that courts were disregarding the Constitution. That’s almost never the case (although I’d say that the wine import case from last term struck me as an example of what you’re calling activism).
I don’t expect you to agree with me, Sebastian, about the Constitution. I do expect you to stop slandering people who view the matter as I do. Call me wrong, but don’t call me dishonest.
It seems to me that a lot of popular “originalism” is basically just rosy-eyed nostalgia for an imagined 18th century political order of being left alone by the gummint,
AARGH. I know this is the common view, but what the originalists are almost always* arguing FOR is gummint being allowed to interfere in people’s lives.
* Except for those few who are still willing to contend that Congress lacked the power to enact Social Security. Not a real popular view out there among the populace, though. Funny thing how that works, your [I’m addressing no one now posting] popular mandate to outlaw flag-burning makes my conclusion that it’s unconstitutional to do so activism, while my popular mandate to fund/supplement old people’s retirement makes your conclusion that it’s unconstitutional to do so principled.
“But Sebastian, would you not agree that “contrary to what the guidance of the Constitution would dictate” is frequently a debatable issue?”
Sure, absolutely, definitely. It is a hard topic–like a fractal shape it can be difficult to find the exact border without doing tedious calculation. That doesn’t mean there is no border.
“And is it not fair to suggest that many conservatives use “judicial activism” to mean “decisions I don’t like” as opposed to any really thought-out approach to consitutional interpretation?”
Some do, but even they are making a comment on the relationship between judges, legislatures and the Constitution. That comment is not adequately summed up as “over-ruling legislatures is activism which is bad”. If you try to sum it up that way, as bob did, you won’t get far in understanding what is going on.
“It seems to me that a lot of popular “originalism” is basically just rosy-eyed nostalgia for an imagined 18th century political order of being left alone by the gummint, and among many other things, it’s never seemed to me that that approach makes any serious effort to deal with the impact of the Civil War and its aftermath on our fundamental understandings of government.”
A lot of popular liberal jurisprudence is about getting the progressive outcome you want. The fact that popular X jurisprudence isn’t particularly rigorous is kind of a non-shocking revelation. That isn’t the same as providing an actual critique of the way they are supposed to actually operate.
“And given that conservatives’ favorite “originalists” themselves disagree from time to time, and that future justices are likely to have views of their own as to what the framers really meant, isn’t it a reasonable to define as “activist” a jurisprudence that believes that any precedent, however long-standing and well-established in our political structure, should be overruled if it’s contrary to five Justices’ views of original intent?”
No. And the idea that might have to do only with original intent is kind of silly. See the recent stupid ruling on execution of people who committed murder at 17 years of age.
Good grief, what have I started here? I blame hilzoy. What time does Katherine get off work, tho I think she swore off the subject a while ago.
The point is that a nomination of Rogers-Brown, or someone like her, would energize a national discussion of judicial theory that is currently lacking, and re-invigorate a respect for the law as law, rather than as source of pre-determined results.
Many people like the results of Roe, many dislike those results, but there is very little real street discussion of why the reasoning is important. Scalia, Thomas, and others could theoretically get plumbers and accountants discussing the intricacies of originalism vs realism vs literalism vs textualism. And the nation saved.
Or something like that.
AARGH. I know this is the common view, but what the originalists are almost always* arguing FOR is gummint being allowed to interfere in people’s lives.
I’m thinking of the libertarian-leaning “originalists” and would readily concede the existence of other sorts. May I revise and extend my remarks to add “…and a lot more is rosy-eyed nostalgia for an imagined 18th-century political order in which there was a decent respect for proper Christian morals and government of, by, and for the right sorts of people”? đ
“I don’t expect you to agree with me, Sebastian, about the Constitution. I do expect you to stop slandering people who view the matter as I do. Call me wrong, but don’t call me dishonest.”
I don’t mean to be rude, but I was responding to the insinuation of “Stalinist” so I think you taking umbrage at allegedly being slandered is rather a bit much. I responded ONLY on the definition of activist as it was being grossly misused in statistics about overruling legislatures.
Scalia, Thomas, and others could theoretically get plumbers and accountants discussing the intricacies of originalism vs realism vs literalism vs textualism.
If it is anything like the discussions about the above on this list, kill me now…
OK, I’m now completely unclear on whether we’re discussing approaches to jurisprudence, the proper use of the term “activism,” or whether Bob was being too snarky. If it’s the first, I think we’re agreeing that jurisprudence is hard, that the Constitution does not necessarily determine a unique right answer to each issue that may reach the Court, and that trying to interpret the Constitution based solely on “original intent” doesn’t work. If it’s the second, my point is not that the term “originalism” is often used by sloppy thinkers–you’re correct that there’s no shortage of sloppy thought about jurisprudence–but that the term “activism” as used by conservatives does not uniquely define a careful, reasoned critique of “liberal” jurisprudence, but is, in common usage, a political buzzword that is fair game for Bob to subvert to his own ends. If it’s about snark, I’ll try to stand clear.
“that the term “activism” as used by conservatives does not uniquely define a careful, reasoned critique of “liberal” jurisprudence, but is, in common usage, a political buzzword that is fair game for Bob to subvert to his own ends.”
It is famously difficult to precisely define what ought to be described as a “chair” but that doesn’t mean we should say that “dog” is just as good at describing it. “Activist” may not be a single unique argument about jurisprudence, but what it most certainly is NOT is the idea that all judicial action overruling legislatures is “activist”. If bob wants to say that “dog” and “chair” are close enough to be interchangeabley used so be it, but saying that I talk about chairs and it is Stalinist to fail to notice that they crap on the carpet is going to get a rather uncharitable response.
Curiously, Bush chose today (via DKOS) to discuss ridding us of the Posse Comitatus Act to use the military to enforce quarantine in case of a bird flu epidemic.
Nice. Loyalty on the Court will come in handy when the new law is challenged.
Did I mention I’m displaying odd symptoms:
frequent molting, nesting tendencies, and something stuck in my craw?
Before I take wing, I just wanna say I want this man nowhere near commanding the armed forces on a mission inside the borders of the United States.
Although I’m sure Michelle Malkin would feel right at home with an American Marcos.
it is Stalinist to fail to notice that they crap on the carpet is going to get a rather uncharitable response.
Apropos of nothing, Catsy made a similar observation on the Chas iceberg post. I guess this Miers nomination is bringing people together. 8^)
I don’t think Bob is confusing dogs and chairs. I think he’s making the point that if we were really interested in judges whose primary goal was to follow the law as best they can, judges who are too eager to overrule legislative decisions are at least as scary as judges who explicitly acknowledge that our understanding of the Constitution changes over time, and that reserving the term “activist” for the latter group is giving undue weight to conservatives’ political preferences.
“Stalinist,” OTOH, was not a good choice of words.
“But Congress needs to take a look at circumstances that may need to vest the capacity of the president to move beyond that debate,” Mr. Bush said. One such circumstance, he suggested, would be an avian flu outbreak. He said a president needed every available tool “to be able to deal with something this significant.””
Thullen, you tool, do you think the legislation they have in mind includes the words “avian flu” or “epidemic” or “quarantine”? I’m sure it is more
generic like “national emergency” or “imminent danger” or “election disputes”…ooops…never mind the last one.
Let’s just say whenever and whatever CinC feels it is in his interest.
“Stalinist,” OTOH, was not a good choice of words.”
Ahhh, read the original posts of 5:31 and 5:44. It is not about theories of justiciation or particular judges but about controlling the discourse.
Who decides what “conservatism” and “liberalism” mean. Conservatives get to define those words. Or not.
Sebastian says I am calling a chair a dog when I say there may be multiple interpretations of the words “judicial activism”. I say there can be many, Seb says there is only one intellectually acceptable, moral, ethical, decent definition: all else is deviationism and counter-revolutionary.
Lawrence Solum …On “judicial activism”
Ok, the “Stalinist. No offense, Sebastian.”
…was deliberate bait. Bitten as expected, in the hope of proving the point. There are huge sections of the blogosphere devoted to the attempt to get control of the legal language, to make certain ways and kinds of thinking…unthinkable. The fear is that while Miers may provide correct results, she will not further the Orwellian good-think project.
Bob, I understand why you used the word and I basically agree with the point you’re making, but it had the predictable effect of ticking Sebastian off, which didn’t do a whole lot for getting your point across the political divide.
“Seb says there is only one intellectually acceptable, moral, ethical, decent definition: all else is deviationism and counter-revolutionary.”
No. I said that defining “judicial activism” as merely “overturning the legislature” was not correct (or even close to correct). If you define it that way, almost everything becomes activist and the word loses its meaning. Kind of like “enemy of the Party” meaning “anything Stalin doesn’t like”. You can define it that way if you really want to, but the words are no longer helpful in discussion. We can have all sorts of legitimate differences in our understanding of “judicial activism” without making the term essentially useless. We can argue all sorts of things about what is or is not activist without saying that every non-rubber-stamp action is activist.
“…merely “overturning the legislature” was not correct (or even close to correct).”
And my post of 5:44 did not even imply that the overturning of legislation was the only form of activism. Just it was a kind of activism that Scalia & Thomas engaged in more often than their peers.
Now if your point is that a justifiable overturning of legislation is not activism, whereas an unjustifiable overturning is activism, then activism has just become a synonym for some kinds of bad decisions. Randy Barnett and Balkin(I think, or so Solum claims) would define activism as the injection of personal values into the decision-making, in which case I suppose upholding legislation, upholding lower-court decisions, or even granting or denying cert could be forms of activism. That seems counter-intuitive, and against the simple meaning of the word.
I would prefer a meaning of activism that would include oh, any changes in previous conditions or decisions, and then a step where it is determined to be “good” or “bad” activism depending on the strength of the arguments.
“I would prefer a meaning of activism that would include oh, any changes in previous conditions or decisions, and then a step where it is determined to be “good” or “bad” activism depending on the strength of the arguments.”
Ok, but if you use it that way in a discussion on judicial activism no one will expect that you mean that. Humpty-Dumpty language.
Sebastian, I wasn’t thinking about Stalinism, and understand your irritation with my language. Your views on this subject have been expressed often, though, and I think it is fair to ask that you consider that there is an intellectually honest view that is contrary to yours. People can differ about what “liberty” means, and about how to figure out what it means.
Your definition of the term ‘judicial activism’ contains an altogether too subjective quality: it’s when the court acts contrary to your understanding of the Constitution. I can use the phrase in the same way, having the same meaning, and it will describe different decisions, because we have different understandings of the Constitution. Thus, unless you have a situation where a court says “I know the Constitution requires X, but I think society would be better off with not-X, so that’s what I’m going to decide” the term only describes disagreements of a certain type. I’d be interested in a cite to a decision like that.
There are worse word games in this business, of course. It just cracks me up when I hear that justices should not make law, but should interpret the law. Or that they should just decide the cases that are before them. They pick the cases that they want to decide, often because they want to resolve particular questions in a particular way, and can use the case as a convenient vehicle. Pure cases — where the choice is not agenda driven — are by far the exception. This will not change, and cannot change, just by sending different justices to the court. The Chief Umpire may call ’em as he sees ’em, but where he gets to pick the pitcher, catcher, and call the pitches, the metaphor has a different meaning than is meant to be conveyed.
I’m sure that’s all very interesting, but given that I haven’t uttered the phrase “judicial activism” in this conversation (maybe ever, but who knows?), irrelevant.
“but given that I haven’t uttered the phrase “judicial activism” in this conversation” …slart 11:30
“I thought voiding legislation was a legitimate function of SCOTUS.” …slart 6:03
“the charge of judicial activism is usually made when court decisions are seen to be interfering with the will of the majority as expressed through their elected representatives” …Randy Barnett
The question at point is whether voiding legislation is “judicial activism” …always, sometimes, never, or Humpty Dumpty language.
“Ok, but if you use it that way in a discussion on judicial activism no one will expect that you mean that. Humpty-Dumpty language.”
“For terms like “judicial activism” and “judicial restraint” to have useful meaning, Sunstein argued, they must be modified. “A court that wrongly invalidates statutes might be said to show unjustified activism,” he wrote, while one that frequently makes political decisions not remotely tethered to the Constitution might be held guilty of illegitimate activism. Furthermore, a court that wrongly upholds statutes might be said to show unjustified restraint, while a court that frequently fails to uphold clear Constitutional principles is guilty of illegitimate restraint. (The thrust of Sunstein’s article was that the Rehnquist Court is acting with “illegitimate activism” — as did the Warren Court on some occasions.) Of course, Sunstein concedes, such terms do not eliminate the hard work of evaluating the merits of court decisions.”
(emphasis mine)
Randy Barnett
So I guess Cass Sunnstein(sic?) would understand my “Humpty Dumpty language”
Hopefully, because I sure as hell don’t. Me, I thought that judicial activism was the courts changing legislation from the bench, rather than simply voiding it.
Again, I am only an egg in these matters. And given that I rarely understand what you’re talking about in general, it’s not exactly a big shock that I’m missing you here as well. According to your own words, merely voiding legislation isn’t a guarantee of activism. Unjustified voiding of legislation may fit, but the more general voiding doesn’t. Again, I thought this was what the courts do.
Here’s another party unhappy with Miers. And, not coincidentally, unhappy with Bush.
“According to your own words, merely voiding legislation isn’t a guarantee of activism.”
Actually, that is what I, and if I may presume, Cass Sunnstein and charleycarp are saying, and what Sebastian is disagreeing with. Perhaps you read quoted material as my own, or I mispoke in some way.
“I can use the phrase in the same way, having the same meaning, and it will describe different decisions, because we have different understandings of the Constitution. Thus, unless you have a situation where a court says “I know the Constitution requires X, but I think society would be better off with not-X, so that’s what I’m going to decide” the term only describes disagreements of a certain type. I’d be interested in a cite to a decision like that.”
Roper v. Simmons.
Brennan’s dissents on the death penalty cases
Roper v. Simmons is especially egregious since they had previously ruled on the same topic within a decade.
“So I guess Cass Sunnstein(sic?) would understand my “Humpty Dumpty language”
Not really. He is specifying different species of what you would call bad activism. He is saying that there are different types of activism that need to be analyzed differently because they are fed by different (bad) impulses regarding the law.
Also, if you read a little further you find a formalism that would not be particularly welcome by Democratic senators who like their Constitutions malleable.
“Actually, that is what I, and if I may presume, Cass Sunnstein and charleycarp are saying, and what Sebastian is disagreeing with.”
I don’t see Cass Sunstein saying that all Court action is activism. Why not just call it court action?
And note in that very same link that you have provided:
You wouldn’t define ‘sexual activity’ as all things that human beings do. That is “activity”. If you define ‘sexual activity’ as “all things human beings do” then you have to talk about ‘eating sexual activity’, ‘sleeping sexual activity’, ‘political sexual activity’ and ‘talking sexual activity’ when you just mean “eating”, “sleeping”, “politics”, and “talking”. You haven’t added anything to the discussion by doing things that way and you will completely confuse the average listener who understands the normal meaning of “sexual activity”. Just because there may be fights about whether blow-jobs count as “sexual activity” doesn’t mean that the term is completely unintelligible.
1) I googled two pages because my memory said there were two ‘n’s in Sunnstein. I found two pages but on further search there appears to be only one.
2) I grant that Sunstein lists two kinds of bad “activism” and two kinds of bad “restraint” without mentioning or implying any opposite formulations, i.e. good “activism” or “good” restraint. If you would grant that Sunsteins imagines there can be no examples of worthy restraint I will grant that the paragraph and discussion is clear. I find it less clear.
For myself, in any cites I gave that mentioned Scalia’s “activism” I was not implying an automatic value judgement. They were numerical analyses including all the other justices, so if the authors were asserting that Scalia’s activism was bad they were saying that similar decisions by the other justices were bad.
If, as you are saying, they were simply pulling conservatives’ chains by using a word in an unconventional way I doubt they considered their articles unintelligable, but rather controversial and confrontational.
Similarly, I would suspect that you consider the liberal’s use of the phrase “legal realism” to describe decisions you would prefer to call “judicial activism” to be controversial. Or unintelligible?
It appears to me, as a layman, that the meaning of the phrase “judicial activism” is in dispute, and that the dispute has ideological dimensions and purposes. If the article by Barnett has any authority, it is in declaring that phrase is in dispute. Which was my main point, rather than any attempt to define it on my own. Would you claim that there is no disagreement? Or that any existing disagreement is in bad faith and illegitimate? Then I refer to charleycarp’s comment of 11:29.
I always get nervous when I go over to Volokh that they are going to be discussing wine importation.
Sebastian, I didn’t read the quote the same (maybe the sexual activity metaphor distracted me because I found myself wondering about how first, second and third base work out on an activism scale)
When Randy Barnett says What it ought to mean, it sounds like he is not citing how the term is used but is suggesting that it is currently misused, which I took to be Bob’s point. That seems to be borne out when he quotes this Solum post
The point is that both Jonah Goldberg and Jack Balkin are engaged in a pseudo-debate. The proposition that liberals are more guilty of the sin of judicial activism than conservatives or vice versa is so vague as to be virtually meaningless. This is the kind of debate that invites simplification and rhetorical flourish but resists resolution through reasoned argument.
I do agree, however, that Stalinist is more like chum in the water rather than baiting a single hook. Please put the gaff(e) down, Bob.
Looking here is probably most instructive. And this might wind up being interesting.
Sorry, “here” was supposed to point here.
“Similarly, I would suspect that you consider the liberal’s use of the phrase “legal realism” to describe decisions you would prefer to call “judicial activism” to be controversial.”
“Legal realism” in the context of a discussion about jurisprudence is a perfectly understandable phrase. To a “legal realist” it is stupid to talk about activism because talking about jurisprudence is silly to them. They only talk about the power of getting 5 votes. Once 5 votes are obtained, a decision cannot be ‘wrong’ from the point of view of legal realist jurisprudence. All decisions with 5 votes are right.
Someone in “legal realist” theory has given up the ability to say that a decision was incorrect. They can only argue from the consequentialist point-of-view “this is what the decision DOES and I do or do not like it”.
They wouldn’t bother to describe things the things I call “judicial activism” as judicial realism because absolutely nothing that gains a majority can be activism. I suspect you are coming from a legal realist point of view because by wanting to call everything activism you arrive at the same inability to distinguish between proper and improper roles of the court that they do by calling nothing activism.
So, am I misguided in thinking that a legitimate part of the function of SCOTUS is voiding of legislation? I’m not sure that ever got answered. It looks to ME as if it is, but I have been wrong once or twice before.
So, am I misguided in thinking that a legitimate part of the function of SCOTUS is voiding of legislation?
I’m told that there are conservatives (or at least Republicans) who would disagree with that sentiment, but I’ve never met one of them personally.
“legitimate part of the function of SCOTUS is voiding of legislation?”
Most people think so;umm, all questions I guess remain forever open and judicial review is still a topic of discussion, perhaps rightly so.
…
“I suspect you are coming from a legal realist point of view”
Spect so, tho I worry about this justification stuff much less than you do. The fact that I consider the Campaign Finance Law unconstitutional makes no difference to anyone, and in a way is nonsensical. SCOTUS says it is ok fine, and enough people were persuaded that it is followed.
If the country became fervently textualist, legal realist arguments would have no force or legitimacy. There is not a ideal non-political Constitution;there is a nation of political actors.
Due respect, bob, but doesn’t this question have a yes-or-no answer?
“Due respect, bob, but doesn’t this question have a yes-or-no answer?”
Nope. Robert Bork has said that SCOTUS decisions may be reversed by a mority vote of Congress; there is a clause in the Constitution that some interpret as granting Congress the right to limit appellate jurisdiction, that has been recently used in legislation(not passed?); and, IIRC, judicial review is not in the Constitution, tho discussed in the Federalist Papers.
Voiding federal legislation, state legislation, municipal ordinances?
I am not even entirely positive that the SCOTUS actually ever “voids legislation”. I do not know if in theory they can tomorrow declare law X unconstitutional, out of the blue. I do not know why they can’t. In any case they usually reverse or remand or decide specific cases brought before them, with explanation. Lower federal courts are bound by SCOTUS decisions, but are state courts? I can certainly imagine SCOTUS declaring legislation unconstitutional, and the rest of us telling SCOTUS to take a leap.
SCOTUS has no army.
No, I consider very little about SCOTUS simple or completely settled.
Over at Yglesias-TPM Matt was complaining that the President was unwilling to come out and say he wanted Roe vs Wade overturned. I pointed out in comments that neither the President or anyone else actually knows what “overturning Roe” means, nor will we until an actual case is granted cert, decided, and the opinions studied. Then legislatures, with likely differing interpretations will legislate within the bounds of the decisions, or not as they so desire, and new cases will come before the court. Or not be granted cert.
I do not consider law separable from politics, in theory or in practice. I guess that makes me a “realist”.
Sebastian, I do not think that “legal realism” means what you think it means.
Hmph. There’s a good chance the Meirs is a young earth creationist, or very sympathetic to that heresy. Her church’s web site apparently links to Carl Baugh, who is infamous for his forgeries of man/dinosaur footprints….
Maybe I’m being naive, but do a lot of people really choose their churches because they run down a doctrinal checklist? I think that there’s discussion about how Miers changed churches, but you wonder if she changed because of their position on some doctrine or because they had a bigger parking lot.
“judicial activism” is a lot like “political correctness”; it’s an expression that at one point had a relatively narrow meaning (a court going beyond the facts of the case to issue a broader ruling) that mutated, through misuse, to turn into a bludgeon. Now, it’s just a buzzword, like “pro-life”, designed to restrict the scope of discourse. (what i am, pro-death?)
ye gods, doesn’t anyone remember the bellyaching about the Kelo decision? conservatives were begging for judicial activism there, but somehow never quite phrased it that way.
slarti — Courts are very rarely faced with what are called “facial” challenges to a statutory scheme, i.e. an assertion that the statute can never be constitutional. most challenges are “as applied”, and are therefore restricted to the particular facts of the case. Even Lawrence, IIRC, is an as-applied challenge, because it did not raise the issue of the regulation of opposite-sex sodomy.
sometimes when a court strikes down a statute as unconstitutional, the legislature will go back and repeal the law. many times, though, the law sits moribund until a later legislature amends the law.
my problem with originalism is that the justices who use it appear to me to be as results-oriented as the realists. Originalists rely on this apparently neutral theory when it serves their purpose but abandon it when the need arises. My proof is 11th Amendment jurisprudence.
it’s late and i’m going home. I’ll bicker about this more tomorrow if anyone’s interested.
SH: Roper v. Simmons
You’re proving my point. You think this decision amounts to a knowing and intentional disregard of the Constitution, and is thus activism. The Court, however, said the result was compelled by the Constitution. To anyone who agrees that this is so, the decision does not amount to activism.
A couple of quotes from the syllabus:
Reading Roper got me to reading Weems v. US, which has a worthy discussion of the nature and purpose of the Eighth Amendment:
Judicial activism in 1910?
that was the Lochner era…however, whether you read “unusual” to mean “uncommon” or “excessive” the idea that such a relative word would not change with time makes no sense to me.
If “activist” doesn’t have anything to do with taking action, it is just being used as a less-accurate substitute for “wrong”. The problem with saying someone is wrong is that:
1) liberals think conservative justices are wrong just as much as the other way around, so you lose your position of privilege
2) you’re generally expected to make an argument about why. This, a lot of the most vocal critics of the Supreme Court–your James Dobsons, and whoever it was who wrote that awful bestseller–cannot do.
It’s just an epithet, nothing more at this point. It’s a word that focus groups badly and can be pinned on us latte sipping new york times reading volvo driving homo loving baby killing terrorist loving etc. etc. etc. ad infinitum liberals.
Hey everyone–I’m a lawyer, no longer just faking! I passed the bar exam! Woo.
Katherine, congratulations, but of course you’re not a lawyer til you’re sworn in.
Katherine: congratulations!
Hey everyone–I’m a lawyer, no longer just faking! I passed the bar exam!
Does this mean we take you more seriously or less?
;^)
CC’s point about swearing in gives me an excuse to point to the last part of the NYT article about Roberts’ first day
and PTB, doesn’t this call for an open thread?
yeah, yeah, swearing in. details details. Unless they also expel you from the swearing in ceremony if your cell phone beeps?
Congrats, Katherine. But will you be sworn it or sworn at (by your clients) first?
Congratulations, Katherine!
congratulations Katherine.
“Katherine, congratulations, but of course you’re not a lawyer til you’re sworn in.”
I avoided 4 years of fees that way with a job that I didn’t need to be sworn in for. đ
Congrats Katherine…..I think. đ
“You’re proving my point. You think this decision amounts to a knowing and intentional disregard of the Constitution, and is thus activism. The Court, however, said the result was compelled by the Constitution. To anyone who agrees that this is so, the decision does not amount to activism. ”
The Court was not compelled to do any such thing and everyone knows it. There isn’t even very good evidence that a particularly large majority of people think that executing a murderer who killed at 17 years of age is particularly cruel. And you can’t play the ‘minority rights’ games with a phrase like “cruel and unusual” because it doesn’t implicate minority rights–it implicates societal understanding.
Furthermore the very same issue had been ruled on already by many of the very same judges.
The decision was pure will-to-power. Kennedey got what he wanted and the pretense that he was compelled to it by the Constiution is just silly.
Katherine, do you think the Constitution compels that decision?
Katherine, I think you are agreeing with me when you write “If “activist” doesn’t have anything to do with taking action, it is just being used as a less-accurate substitute for ‘wrong'”. Bob was seemingly try to define judicial activism as all possible judicial action, and then trying to classify it as good or bad activism. I’m not saying that ‘activism’ has nothing to do with action. I’m saying that not all judicial action is activism. And activism isn’t the same as merely being wrong. I wrote above:
“You wouldn’t define ‘sexual activity’ as all things that human beings do. That is “activity”. If you define ‘sexual activity’ as “all things human beings do” then you have to talk about ‘eating sexual activity’, ‘sleeping sexual activity’, ‘political sexual activity’ and ‘talking sexual activity’ when you just mean “eating”, “sleeping”, “politics”, and “talking”. You haven’t added anything to the discussion by doing things that way and you will completely confuse the average listener who understands the normal meaning of “sexual activity”. Just because there may be fights about whether blow-jobs count as “sexual activity” doesn’t mean that the term is completely unintelligible.”
“Sebastian, I do not think that “legal realism” means what you think it means.”
I’m pretty sure it does. See for example here or if you really want to look into the paper here (you can download the paper from the Stanford collection.
The problem is that the term doesn’t mean what it sounds like it should mean.
CharleyCarp, I think the distinction you’re missing is that “judicial activism,” as Sebastian is using it, is not simply decisions that are wrong, but are wrong in a very particular _way_. Roper (sadly) is a good example in one direction; I happen to think, as Francis points out, that the Court’s recent sovereign immunity decisions are good examples in the other direction.
Congratulations, Katherine!
Sebastian, your sexual activity analogy is, um, slightly distracting.
The Court was not compelled to do any such thing and everyone knows it.
This is the complete basis of your argument and it’s just not true. I don’t “know it,” and I does see any reason at all to believe that a majority of the justices “know it” either. As I’ve been saying all along, your argument is based on a presumption of bad faith that you’re willing to impute to people who disagree with you. It’s a mindreading foul of the first order, and is what makes the lament about ‘judicial activism’ nearly useless as intelligent discussion. I can as well say that Justice Scalia “knows” that there was no equal protection violation in Bush v. Gore, and indeed that everyone knows it. What have I got as proof? Simple, it’s completely obvious that the intent element was completely lacking, and anyone with even half a half a brain can see it.
Of course, I can’t really be sure that Justice Scalia is a liar. Maybe he’s a fool. Or put more nicely (and closer to what I actually think), maybe he’s completely missing the point (again) of what the Constitution is about. That prevents me from charging ‘judicial activism’ in your sense for this decision. And I think it fairly prevents you from saying the same thing about Roper.
Charley, do you think that Roper was rightly decided? And if so, why?
I think Roper, like many if not most Supreme Court decisions, is wrongly decided in good faith.
I’m not saying that ‘activism’ has nothing to do with action. I’m saying that not all judicial action is activism. And activism isn’t the same as merely being wrong.
Okay, SH, I’d been following you until now, (not agreeing with you, mind you. When I’ve seen ‘judicial activism’ used in a concretely definable way, it has meant overruling or overturning laws or other actions of the other two branches of government, regardless of the rightness, wrongness or motivations involved) but I’m a little lost. If judicially activist decisions, to you, aren’t those that are simply wrong, what are they?
A possible interpretation is that they are decisions that are knowingly wrong as a matter of law, because the judge feels that policy is best served by deciding a case wrongly. Is something like that your definition?
And I should say: Woohoo Katherine! You’ll be a credit to the profession.
Mark, that’s a fair question, I guess. I’m not conversant in the facts upon which the finding is based, so it’s hard for me to answer the ultimate question. I do believe, however, that standards under the Eighth Amendment are not fixed by what they were in 1789 (for the Feds) or 1868 (for states), but that a penalty is properly measured for reasonableness as of the time it is to be administered. And I think the the Constitution compels reviewability of the reasonableness of any punishment.
Speaking only for myself, I think execution of juveniles probably is over the line. But I haven’t looked at the evidence re: the broader consensus that would su7pport this. Something is not an Eighth Amendment violation just because I don’t like it, but only if my not liking it is in the mainstream.
A hard standard for states to apply? Sure. Who ever said the state’s taking of life was going to be easy?
Congratulations Katherine (I’d go on a long ” the bar exam is stupid” rant here, but won’t).
kath, great news. i still vividly remember the day 13 (!) years ago when i opened my bar results (yes, i passed on the first try — thanks for doubting me you schmucks).
where are you going to practice? what kind of law?
as to cases like Roper, i think the majority overreaches when it states that the constitution compels the result. a better statement would be that the result is consistent with and a legitimate interpretation of the constitution.
after all, if you are saying that the result is compelled, and four justices disagree, then really what’s happening is that the meaning of the word “compelled” is being distorted.
of course, abusing language is common practice in the law — that’s what zealous advocates do, at some level.
but the consequences of abusing language can lead to dangerous situations as well as some amusing ones. for example, as best i can tell, judicial activism means those cases in which SH “knows” that the justices are ruling in bad faith.
of course, how SH can know the contents of a Sup Ct justices mind is a question that we probably need Prof. Leiter (and Pharyngula?) to answer.
of course, how SH can know the contents of a Sup Ct justices mind is a question that we probably need Prof. Leiter (and Pharyngula?) to answer.
We could just give him a Karnak award every time he uses the term “judical activism”.
“how SH can know the contents of a Sup Ct justices mind is a question that we probably need Prof. Leiter (and Pharyngula?) to answer”
It is revealed in their actions. Kennedy knows that the Supreme Court ruled that 16+ murderers could be executed because he was on the 1988 Court that so ruled.
It is also well in line with the history of interpretation of the clause over 150 years to allow it.
Also nothing has changed so dramatically in the treatment of juveniles in society as to warrant it–see for example the fact that children can get an abortion without parental consent (and in most cases notification) at ages as young as 14. See also that in most non-death penalty states juveniles can get sentenced to full life terms for murder, EXACTLY like adults–completely contradicting Kennedy’s argument that juveniles can’t be punished as adults because of various mental factors. If that were true, they shouldn’t be subject to punishment exactly as if they had the same culpability as adults in non-death penalty states.
“We could just give him a Karnak award every time he uses the term ‘judical activism'”
To be fair they could be grossly incompetent. I doubt it, but that is a possibility.
So it sounds as if your meaning for ‘judicial activism’ is something like the definition I gave above — knowingly deciding a case wrongly (as a matter of law) to serve policy considerations. Is that pretty much right, or am I missing something about your usage?
“So it sounds as if your meaning for ‘judicial activism’ is something like the definition I gave above — knowingly deciding a case wrongly (as a matter of law) to serve policy considerations.”
Pretty much. I think it gets a touch more complicated after years of judicial activism, because a judge could be groomed in an environment where he thinks that serving policy considerations is his job and then we get into trouble with the “knowingly deciding a case wrongly” because he wrongly thinks that policy considerations are how he is supposed to be judging.
Take the statement “reasonable people can disagree about this.” You can read that to mean:
1) there are two opposing views on this, both reasonable.
or
2) people who are basically reasonable can hold opposing views on this.
There are a lot of times when I think #2 is true even though I think #1 is not. Reasonable people can honestly hold unreasonable views.
I view originalism to be unreasonable, clearly wrong, disastrous for the country, a betrayal of the founders’ intentions etc. etc. The idea that you’re supposed to interpret the phrases “cruel and unusual”, “due process of law”, “equal protection”, “unreasonable search and seizure,” “freedom of speech” let alone the judicial tests like “shocks the conscience,” “rational basis”, “compelling state interest”, “legitimate state interest”, without reference to your policy views is naive, dishonest, and a total abdication of moral responsibility, etc. etc. Your goal should not be to serve your policy views but if you think they play no role you are simply lying to yourself.
But do I think there are reasonable people who are originalists, who honestly believe those views to be right, in good faith, after thinking about it carefully? Yes.
Sebastian won’t admit this about his opponents. He constantly attacks the motives of liberal judges without any evidence other than that he thinks they’re wrong.
(“won’t admit this about his opponents” only in the contexts of liberal judges.)
“idea that you’re supposed to interpret the phrases “cruel and unusual”, “due process of law”, “equal protection”, “unreasonable search and seizure,” “freedom of speech” let alone the judicial tests like “shocks the conscience,” “rational basis”, “compelling state interest”, “legitimate state interest”, without reference to your policy views is naive, dishonest, and a total abdication of moral responsibility, etc. etc. Your goal should not be to serve your policy views but if you think they play no role you are simply lying to yourself.”
It all depends upon what you mean by ‘your’. I do not accept that it is the proper role of judges to insert their own personal policy views into the Constitution. I believe that the view that judges ought to be inserting their own policy views is unreasonable, though reasonable people may indeed hold that incorrect view.
If you wish to argue that the societal understanding of phrases like “cruel and unusual” can change (somewhat) with time, I agree. (I won’t agree that this is infinitely elastic e.g. that it could ever mean “plaid flowers are smooth” but I don’t think you are arguing that). I do not agree that Kennedy in Roper showed that the phrase “cruel and unusual” has changed its societal meaning to any degree necessary to enshrine something as a new Constitutional right which is in direct opposition to the understanding that has been held for more than 150 years–and which has been directly ruled upon less than 15 years ago.
Even if you accept all sorts of general theorizing on protecting minority rights being some universalizing functino of the Court, a jurist can’t pretend that the societal meaning of things like “cruel and unusual” is defined from a minority point of view. This is not a minority rights issue, it is a societal understanding issue. The idea that the society has changed such that a cold-blooded murderer who committed his murder at age 17 is not fully responsible for his actions such that he cannot be tried and punished as an adult is not supported in the opinion–mainly because society has not in fact changed that much in the last 15 years.
When a judge interprets a clause of the Constitution and all of the following are true, it should definitely be seen as judicial activism: it directly contradicts previous case law, it directly contradicts actual historical practice, and it does not enjoy overwhelming public support. I would argue that not all of those factors are necessary for an act to be defined as judical activism. I would suggest that sometimes indirect contradiction is enough. I would suggest that not all three factors have equal weight. We can have all sorts of discussions about how they should be weighed and whether or not all the factors are real issues. But in the case of Roper, where the opinion directly contradicts an on-point previous opinion, where it directly contradicts historical practice, and where the idea that 17-year olds cannot be punished for murder as adults does not enjoy overwhelming support, it is an excellent example of judicial activism.
I’ve read the opinion in its entirety and I don’t see much in the way of good faith argumentation. It boils down to “I don’t personally like it and if I squint really hard and play games I can sort of detect a trend that could be interpreted as favoring my personal moral judgment even though the method I use to explain that trend (that juveniles are not fully responsible) is deeply undermined by the fact that in non-death penalty states 17-year olds can be sentenced to the exact same sentences as adult offenders.
So even if you reject the orignalist position, you certainly can’t argue that Roper is compelled by the Constitution unless you are willing to throw just about everything about interpretation out the window with it. Normally you (Katherine) don’t seem like you want to do that–though the position you personally outline about jurisprudence has almost nothing to do with how Democrats actually operate when talking about or inhabiting the bench.
But you are right. If you can’t say Roper is judicial activism than from your point of view the term cannot have a useful meaning. I don’t know what you would want me to call it though. Maybe inserting personal moral preferences in direct contradiction to case law and historical tradition without the support of popular opinion in such a way as would be found by those on the left to be horrific if done by a fundamentalist Christian? That is a bit clunky.
Seb:”When a judge interprets a clause of the Constitution and all of the following are true, it should definitely be seen as judicial activism: it directly contradicts previous case law, it directly contradicts actual historical practice, and it does not enjoy overwhelming public support.”
— I haven’t engaged with this discussion so far, mostly because I haven’t had time to reread Roper, and don’t remember it clearly enough. But I think the above is wrong. I think, for instance, that overturning Plessy would have met all three criteria. Despite this, however, one might think, completely reasonably, that Plessy was wrong, and that segregation in public accommodations was unconstitutional.
Likewise, although this is not one of my personal burning issues, I think that holding mandatory recitation of the ‘under god’ part of the Pledge of Allegiance to be unconstitutional in public schools, under the establishment clause, would be a perfectly reasonable position, as a matter of constitutional law. (I think it is unconstitutional, and if on the bench, I would so rule, even though if I were a parent, I would not take it to court, having absolutely no desire to see this become a major issue.)
Whether or not you agree with these particular examples, the general point is: the interpretation in favor of which one overturns case law in an unpopular way needs to be unreasonable, where unreasonable means not ‘what I don’t agree with’, but ‘an interpretation that makes it impossible for me to think that the judge who adopted it is just interpreting the law in a way I find reasonable though wrong.’
“‘an interpretation that makes it impossible for me to think that the judge who adopted it is just interpreting the law in a way I find reasonable though wrong.'”
I don’t use judicial activism to talk about all decisions I disagree with. I use them to talk about illegitimate abuses of judicial power, and Roper is most certainly that. It is a bald-faced insertion of the personal moral understandings of five judges. If done by fundamentalist Christians with the same level of ‘interpretation’ it would be denounced as an obvious step toward theocracy–unmoored from serious legal thinking. It is not based in custom, it is not based in the actual text, it is not based in popular understanding of the terms of the text (neither historically nor in present understanding), it doesn’t even have internal logical consistency with respect to juvenile competence for the purposes of culpability and sentencing “as adults” in non-death penalty states. It is an exercise of pure judicial will. That is not how the Court is supposed to work.
the problem with SH’s view of constitutional interpretation is that it leaves no room for error.
Sup Ct justices are extraordinarily reluctant to admit their own errors, and are even more reluctant to accuse former justices / courts of error.
this isn’t surprising considering that our legal system derives from english common law which is based on precedent. If precedent can be ignored whenever 5 justices think that the prior court got the law wrong, then the law would have much less stability.
so, as justice roberts pointed out in his confirmation hearings, precedent should be reversed only when the court thinks that the earlier decision is really really wrong. (how does one distinguish wrong from really really wrong? one refers to precedent!)
there must, however, be some room for a court to declare that a prior decision was wrong. after all, the only person on this planet who claims infallability and isn’t either homeless or a ward of the state is the Pope.
and if prior wrong decisions couldn’t be reversed, there’s not much point arguing about abortion, is there?
so kennedy changed his mind. I wish he had been more honest that he was simply changing his vote in Stanford rather than asserting that such a radical change in society had occurred justifying a different vote. but Stanford was also a 5-4 decision, so it’s not like there was clear consensus on the court when the issue was before them previously.
as to SH’s comment on legal realism: “Someone in “legal realist” theory has given up the ability to say that a decision was incorrect.”
that statement is grossly overreaching.
Bush v. Gore was wrongly decided because the majority applied a legal doctrine in a way that it had never been used before, and said that it could never be used that way again. that’s not law; that’s the naked assertion of power.
for myself, i don’t believe that the language of the bill of rights is infinitely malleable. but having practiced law for a while now, i’m also aware that many deals are closed through judicious use of structured ambiguity (aka we’ll cross that bridge when we get there). given the diversity of views expressed by the founders in their contemporaneous documents, any legitimate theory of originalism must take into account the fact that the bill of rights is in many places deliberately ambiguous.
so now what? text, precedent, and analogy. If a state lacks the power to bar inter-racial marriage, does it retain the power to bar homosexual marriage?
sure, the argument goes. homosexual marriages are inherently infertile.
nuts, goes the counter. No state bars octegenarian marriages, or infertile marriages. no state dissolves the marriages of the voluntarily childless.
sure, the argument goes. homosexual marriage is revolutionary, contrary to this country’s traditions, and icky. the majority should get to decide.
nuts, goes the counter. Bans on miscegenation are still on the books of several states, showing that racism is alive and well. Racism was not an adequate justification for barring inter-racial marriage and homophobia should not be an adequate justification for barring same-sex marriages. The bill of rights is inherently an anti-majoritarian document and the concepts of liberty, due process and equal protection written into the 5th and 14th amendment provide ample textual support for invalidating bans on same sex marriage.
i have a simple question for originalists/textualists. Was Loving v. Virginia correctly decided? How do you reconcile that case with the status of black americans at the time of adoption of the 14th amendment, where a legislator proposing to allow inter-racial marriages would have likely gotten lynched in most states?
it directly contradicts previous case law, it directly contradicts actual historical practice, and it does not enjoy overwhelming public support.
So, just to be clear, Sebastian, you now think overruling Roe would be judicial activism, correct?
“as to SH’s comment on legal realism: “Someone in “legal realist” theory has given up the ability to say that a decision was incorrect.”
that statement is grossly overreaching.”
Read the links. If you are being grossly uncharitable to me I am slightly overreaching. If you think I’m wrong you are going to have to explain to me on what basis a legal realist could say that a decision was incorrect.
SH: what I meant with my little interjection was just: there is such a thing as a principled decision that overturns case law, contradicts historical practice, and has no popular support. I don’t think your three criteria allow for this possibility. I didn’t mean to suggest that you or anyone should call any decision you disagree with ‘judicial activism’, which I agree would be an abuse of language.
“If precedent can be ignored whenever 5 justices think that the prior court got the law wrong, then the law would have much less stability.”
Yeah, exactly. Which is why I don’t like the legal realists.
“I wish he had been more honest that he was simply changing his vote in Stanford rather than asserting that such a radical change in society had occurred justifying a different vote. but Stanford was also a 5-4 decision, so it’s not like there was clear consensus on the court when the issue was before them previously.”
He can’t do that because it wasn’t wrong before. And judges can’t just change their minds. They have to explain why they changed their minds. The terms didn’t change. The understanding of the terms didn’t change. The jurisprudence didn’t change. The society didn’t change. The societal understanding didn’t change. Nothing changed except the total number of Justices willing to substitute their own policy and moral decisions for that of the rest of the country in that case. If substituting your own moral judgment is ok, just come right out and say so. But don’t expect me to support the Court as an institution if that is how it ‘ought’ to work. I don’t see any reason whatsoever to support a 5-man lifetime oligarchy of rulemakers that aren’t bound by the Constitution. Direct democracy is scary, but not as scary as a dictatorship of only 9 voting with majority rules and ruling everyone else.
“there is such a thing as a principled decision that overturns case law, contradicts historical practice, and has no popular support.”
I’ll agree. But if you are overturning case law, contradicting historical practice and don’t have popular support, you had better have a super-duper-excellent-and-obvious reason to do so. Each of those factors ought to cause huge flags to cause you to really look at your decision. All three at once is a huge warning sign that you should be super-stringent about making sure you aren’t just injecting your own personal views. And then when you are explaining yourself you had better be amazingly clear and point to the super-obvious.
Kennedy did no such thing in Roper. This can be seen pretty clearly in the rationale he chose–that state practice is such that 16 and 17 year-olds are not competent enough to be held fully accountable for murder. That is just not true. Even in most states that don’t allow the death penalty for anyone, they can hold 16 and 17 year-olds to full adult status for purposes of punishment. If there really is a mental incapacity, that shouldn’t happen. There is very little evidence of a dramtic shift in societal attitudes about the death penalty since 1985 when the last directly on point case was decided. If you are going to evaluate a phrase like “cruel and unusual” you can do so in one of four ways. First, you could try to understand what was meant when it was written. They cleary didn’t do that. Second, you could try to define it as it has been defined by past precedent. Since this specifically overruled the 15-year old precedent and outlawed what had been legal for 200-years this is clearly not the explanation either. Third, you could try to understand what it means to the society as a whole. This was the pretext used but the evidence was not what Kennedy claims. Either Kennedy is math-challenged, or he wasn’t entirely candid. Fourth, you can define it on your personal moral understanding. That is what legislators normally do. That is not what I want from judges. If I wanted that from judges, I wouldn’t bother with a Constitution that they were supposed to ‘defend’.
geez, did you even read the second half of the post, SH?
what limitations on the interpretation of the Bill of Rights should a judge consider?
Text, Precedent, Analogy, Logic, Understanding of History, Philosophy and Language, Appropriate Respect for and Deference to Other Branches of Government
in other words, have what is called “judicial temperment”
or, judges should be platonic philospher-kings.
when is a decision wrong? when it violates any of the above.
on the topic of the law, I have the following hypothetical that I’d like to hear some answers to.
An american takes his baby to a clinic in Canada for a procedure illegal in the US. The child dies. The reason the procedure is illegal in the US is that the procedure has a very high death rate. Canada refuses to prosecute and the American returns to live openly in his hometown, not showing any particular remorse over the death of his baby. You are the local prosecutor. What do you do?
now,
how does your answer change if the American is a woman, the baby is in utero and Roe is no longer law of the land?
Answer to both hypotheticals on the facts given is “nothing”.
“what limitations on the interpretation of the Bill of Rights should a judge consider?
Text, Precedent, Analogy, Logic, Understanding of History, Philosophy and Language, Appropriate Respect for and Deference to Other Branches of Government”
So which ones did Kennedy violate. I think all of them. He definitely violates precedent. His explained analogy and logic fail based on a number of things, but especially since he is wrong about his mental ability claim vis-a-vis how states have discretion to treat 16 and 17year old murderers. He is going against the understanding of history. He goes against the common understanding of the language. I’m not sure what you mean by philosophy (his or something else). I’m sure he is ok with his own philosophy so I guess I’ll give you personal philosophy. He doesn’t give deference to other branches of government.
So he has what? One out of eight? One and a half out of eight?
Flat out, do you think it was judicial activism? If not, on what legitimate basis does it stand? I’m not going to try to talk about an emotionally invested case (for both sides) like Roe if we can’t even talk about a recent and less invested case like Roper.
First of all, thanks for the links, especially the Leitner encyclopedia entry. As a linguist, seeing language philosophy refracted through another discipline is quite amazing. Two observations
First, Leitner says that the Legal Realism approach has been supplanted by ‘legal process’ school in the 50s and 60s, and seems to argue that Legal Realism no longer exists as an approach. In fact, you seem to argue precisely what the article has said has become the standard notion, which is that judges engage in ‘reasoned elaboration of their decisions’ (p 26)
You seem to take legal realism as a school which is still actively followed (perhaps it is, but from the Leitner article, it is not). If your argument is that people follow legal realism without knowing that they do, then it is a bit strange to present the foundations of legal realism as proof. Yet you refer to legal realists in the present tense. For you, this may be a ‘By their fruit ye shall know them’ observation, but it does strike me as a bit of a jump.
I’d also like to suggest that Kennedy’s opinion in Roper was (I think) motivated by a further point, which is that international law should be taken into account. Now, Scalia thinks this is rubbish, I know, but even if you don’t agree, can you see that some might (and obviously have) thought that this was reasonable?
In fact, the idea that democracy is something that is spread to other countries is basically the same idea, and only if you argue that the sole possibility is a one way transferral of ideas can you avoid the fact that it is hypocritical to argue for the former without acknowledging the latter.
Francis wrote:
up Ct justices are extraordinarily reluctant to admit their own errors, and are even more reluctant to accuse former justices / courts of error.
For a specific example of this, see Jerry Kang’s Denying Prejudice: Internment, Redress, and Denial . Highly recommended.
SH:
What do you do with Kennedy’s argument that Stanford, the case being overruled, was inconsistent with prior 8th Amendment precedent in holding that judges were not permitted to use their own judgment, rather than societal consensus, as to what constitutes constitutionally ‘cruel’ punishment, and that under the prior precedent the opinion of the judge as to the cruelty of the punishment is a valid basis for a finding of constitutionality under the 8th Amendmendment? Because that argument seems like a sufficient support for the holding to me.
Now, I’m not terribly familiar with this case (that is, I just read it now, and hadn’t read it beforehand) or with the earlier 8th Amendment precedent he cites. I can see arguing that the earlier precedent doesn’t say what Kennedy says it said (I haven’t read the cases). If the earlier precedent was good law and is as Kennedy represents it, though, the statement in Stanford that the opinion of the judges is not a valid basis for a finding of constitutional ‘cruelty’ seems to have been dicta, and erroneous dicta at that. At that point, there’s nothing unprincipled about Kennedy holding that he considers, based partially on the evolution in state standards that he describes, the execution of minors to be constitutionally cruel in his own opinion, and to rule on that basis.
(Note: I’m not arguing that a judge’s bare opinion as to rights and wrongs is generally a means of determining Constitutional rights, just that there seems to be precedent that it is a means of determining what counts as ‘cruel’ under the Eigth Amendment.)
I should say, given that I can’t edit the prior comment, that I can usually spell ‘Amendment’. And ‘banananana’.
Sebastian,
I’ve noticed you haven’t responded to any suggestions that Bush v. Gore should be considered judicial activism. If you do not believe it is, please explain why.
Let me ask another question: if the Kelo decision went the other way (as nearly the entire right half of the blogosphere and signifcant portions of the left half wanted), why under your definitions would that not be judicial activism?
virtually all 8th amendment jurisprudence is, for me, what my father calls “ruminative jurisprudence”, aka what your gut tells you, and is therefore inherently subject to judicial bias, even unconscious bias.
i think kennedy changed his mind. i guess that changing your mind and thereby changing the outcome of a constitutional interpretation is a form of judicial activism. i’m just not sure that activism in that context is necessarily a bad thing.
who was is who said, many years after Bowers was decided, that upon reconsideration he thought that the dissent had the better of the argument? Powell, i think.
having an open mind is tremendously difficult — think how hard it is to see the legitimacy of your opponent’s position. yet we ask judges to be neutral arbiters, persuaded only by argument.
which is a really interesting idea if you think about it. What is “argument”? How is it that people are persuaded to take one side or another of a position? Think about all the baggage that anyone brings to any position of being forced to pick a side in a dispute and what parts of that baggage are permissible factors to influence your decision making and what factors are not.
which is why it’s a good idea to have really bright people on the Sup Ct with a proven record of teasing out legitimate legal arguments from the usual nonsense that counsel throws out.
which leads to one final point. I don’t think anyone is truly capable of evaluating abortion cases neutrally. Knowing (or not knowing) someone who had an abortion and that person’s struggles (or lack thereof) with the decision powerfully colors the views of everyone i’ve ever met. Abortion is probably the ultimate results-driven jurisprudence, on both sides.
the 9:46 post was written before I read Leiter’s paper. wow, i guess i’m more of a realist than I thought.
but there’s a reason for that. first day of law school, the professor says that the classic elements of negligence are: duty, breach, causation, damages.
But where does the scope of that duty end? How foreseeable must the harm be for duty to attach? Answer: because the judge feels that his decision is “right” / efficient / fair.
Or contracts law: contracts are to be enforced, except when they shouldn’t be. what’s the line between the two? See above.
or constitutional law: what does “due process” mean anyway?
cheers and goodnight.
p.s. I think many local prosecutors would disagree with SH’s position on my hypo.
Has anyone else here realized how boring discussions about “what is legal” are, compared to discussions about “what is right”?
Most court cases aren’t about anything as simple as what is right. Both sides may be right or both wrong, but some solution has to be arrived at when rights conflict.
“realized”? Sounds like you think you’re stating a fact rather than just your own opinion. Personally I think the legal discussions are much more interesting, since at least there are certain texts that everyone has to accept as authoritative.
Souter isn’t very far from how i’d like to think I’d operate, nor is Ginsburg. For every way in which I’m more moderate and “originalist” than them there’s another in which I’m more liberal and activist.
Since when is Anthony Kennedy a Democrat?
Sounds like you think you’re stating a fact rather than just your own opinion.
There’s no “think” about it. There’s reality, and then there is your argument, separate from that.
Personally I think the legal discussions are much more interesting, since at least there are certain texts that everyone has to accept as authoritative.
A falsehood, as a scroll upwards would detail.
You know, Hitler’s seizure of power was legal. And you could spend all day arguing about that, but it doesn’t take me long to know it was wrong.
Scroll up, same crap, different day. As long as there are a large number of people who believe that something being legal and something being right are isomorphic, we’re gonna have a lot of problems.
And on the day that people realize that legality has nothing to do with morality, we will have the beginnings of a solution.
There’s no “think” about it. There’s reality, and then there is your argument, separate from that.
LOL. Behold the Voice of Moderation.
Personally I think the legal discussions are much more interesting, since at least there are certain texts that everyone has to accept as authoritative.
A falsehood, as a scroll upwards would detail.
Not at all, the question is in the interpretation of the authority, not the fact.
But I’m sorry you find this discussion so boring and pointless. Too bad there aren’t any other blogs out there that might have a discussion more to your liking.
LOL. Behold the Voice of Moderation.
And, on your end, Behold the Voice of Made Up Crap.
That’s your voice, if you didn’t catch on, child. I can play your game too. Better than you can.
But I’m sorry you find this discussion so boring and pointless. Too bad there aren’t any other blogs out there that might have a discussion more to your liking.
No, this blog is good. There are people here who want to discuss exactly what I do. That’s awesome. And then, there are people like you, who confuse legality with morality. You chatter on and on.
I’ll point out your confusion at every opportunity, and ignore, quite charitably, the slings and arrows of the terminably confused.
frm, where’s the hostility coming from? You know what’s right? Fine. Lot of people know what’s right, like excluding you from political decisions and preventing you from acting immorally.. As a society we’ve decided you and they will coexist through laws, and some people find that stuff interesting, even though, as I’m sure you’ll agree, iambic pentameter is infinitely more fascinating.
Rilkefan, very much seconded.
Felixrayman, from your comments it’s unclear whether you find legal decisions boring or vitally important. If the former, KenB’s suggestion that you find somewhere else to comment judgmentally seems rather appropriate. If the latter, you’ve made a cryptic and poor case for yourself here. I’m probably on your side, but I have NO idea what you’re actually arguing here.
I have no legal knowledge, but I’ve really been enjoying spying on the conversations of those who are willing to argue forthrightly and with evidence for what judicial approaches they believe in. I think it would be unfortunate if (cryptic, hostile) sniping from the sides derailed this discussion.
Wow, things got interesting while I was away from the computer. Sebastian, I have some reading to do before I’m going to be able to fully engage your arguments about legal realism, and while it’s on the to-do list, it’s not going to happen tonight. But from what I do know, I’m fairly confident that you’re misunderstanding what legal realists were trying to do, particularly in that you appear to view legal realism as an account of what judges should do rather than of what they do do or can do. I don’t think it’s a matter of “the law says x, but my policy preference is y, so I will decide y.” It’s more like “real human beings in the world we live in can’t apply complex written rules to complex factual situations in such a manner that there is always one and only one correct answer, and because of that, when judges decide whether the answer in a close case is ‘x’ or ‘y,’ they necessarily are guided in part by conscious and unconscious views of their own.”
“Note: I’m not arguing that a judge’s bare opinion as to rights and wrongs is generally a means of determining Constitutional rights, just that there seems to be precedent that it is a means of determining what counts as ‘cruel’ under the Eigth Amendment.”
Huh? How does that jibe with:
“under the prior precedent the opinion of the judge as to the cruelty of the punishment is a valid basis for a finding of constitutionality under the 8th Amendmendment?”
It sounds completely contradictory. I would be EXTREMELY skeptical of any claim that the legal definition of “cruel” in the Constitution is supposed to be held to the whim of any old judge who comes across it. That is asking for chaos.
“I’ve noticed you haven’t responded to any suggestions that Bush v. Gore should be considered judicial activism.”
I’m not engaging that question at this time for the same reason I’m trying not to talk about Roe–there is no point tackling the hard and emotionally invested cases when we can’t even discuss the easy ones without coming apart at the seams. It would be like trying to tackle partial differential equations when we can’t even agree on the principles of basic calculus (or arithmetic even).
“I’m fairly confident that you’re misunderstanding what legal realists were trying to do, particularly in that you appear to view legal realism as an account of what judges should do rather than of what they do do or can do.”
No I’m well aware of what legal realists started out to do. They initially saw the project as a scientific (though I would call it psuedo-scientific) description of how law works. They were the legal version of Skinner. The problem is that when they tried to invest truth value in what they described, it first undermined the rules they didn’t like, but eventually was seen to undermine the entire rule of law. In legal realism a phrase like “government of laws not of men” is meaningless.
The legal realists got into trouble after they started fleshing out their ideas for the same reason why many people who tried out hard moral relativism had problems (and at about the same time). Their intial views operated in the field of norms which were informed by the principles they were denying. This offered an unconcious check on the how far their ideas could go. But when you start taking them seriously everything started flying out the window. When you take it too seriously legal realism can’t be helpful in telling you how judges ought to rule on any particular case because it has denied that there are any real rules. (Or more precisely it says the rules are such that most outcomes can be selected for by the judge based on his personal whim and then cloaked in judicial language.)
“real rules”
A real rule might be, find for the party with the most vowels mod the date. Are you claiming there are real rules that decide all issues clearly? That can be applied the same way independently?
I mean, there are real rules for baking, but sometimes the bread comes out great and sometimes not. Surely anything complex as law is going to include a human element, and if one has to vote thumbs up or down, there will be cases where the judge says given the legal balance I’m going with the good guy here.
Perhaps I’m the only one interested in this, but since I found a number of interesting links about the question of foreign laws, I thought I would put them up in hopes of some discussion. Since Kennedy is the one in the hot seat for Roper, this Jeffrey Toobin article is very interesting. And while not the issue here, this anecdote was quite funny:
This TNR piece argues for the considered use of foreign precedents. This op-ed takes a dimmer view, and suggests at the bottom that Roberts may also have such a view, which was reinforced in the confirmation hearings in his questioning by Kyl. Ann Althouse took issue with that in this NYTimes op-ed (from Kenneth Anderson’s blog, cause the op-ed is behind the sub wall. Anderson is also the author of this rather detailed piece against the use of foreign law here in Policy Review
Finally, the Breyer/Scalia debate on this question is here, with some interesting comments about the Eighth Amendment.
The TNR article comes up with two major reasons to consider foreign law: the other countries like it (foreign policy) and they may have thought things through about issues that we haven’t considered yet. Both are great reasons for legislators to consider foreign law. Neither ought to have anything to do with judicial consideration of the Constitution of the Unitend States.
I’ll have to look at the Breyer/Scalia debate when I get back from volleyball.
Me: “Note: I’m not arguing that a judge’s bare opinion as to rights and wrongs is generally a means of determining Constitutional rights, just that there seems to be precedent that it is a means of determining what counts as ‘cruel’ under the Eigth Amendment.”
SH: Huh? How does that jibe with:
Me: “under the prior precedent the opinion of the judge as to the cruelty of the punishment is a valid basis for a finding of constitutionality under the 8th Amendmendment?”
SH: It sounds completely contradictory
All I can say is re-read. I said the same thing twice — that Kennedy asserts that that there is valid controlling precedent for the position that constitutional ‘cruelty’ can be informed or determined by the moral judgment of the judge. From this:
I would be EXTREMELY skeptical of any claim that the legal definition of “cruel” in the Constitution is supposed to be held to the whim of any old judge who comes across it. That is asking for chaos.
it sounds as though you were unaware of the existence of that precedent, rather than disagreeing with Kennedy’s characterization of it in an informed fashion. If Kennedy has characterized it accurately, do you have a basis for rejecting that precedent other than your personal distaste for it? How does that make you more principled than Kennedy?
(I should say, also, that as a matter of historical intution I think your rejection of the idea that ‘cruelty’ depends on the moral judgment of a judge is off base. Do you really think that the eighteenth century drafters of the Constitution contemplated that judges would consult statistics or nationwide surveys on a question like this rather than their own moral sense? The concept of social science had hardly been formed at that time.)
Look forward to it, Seb. Also glad that your leg (achilles tendon?) is healed.
It’s strange, I read the whole TNR piece, or at least I think I did, but now, it shows up behind a subscription wall. I should point out that I just chose some pieces on both sides of the fence, and hope that you and others might link to some more.
I think there are a few other reasons that can be given. The first is that it seems strange to sequester off the Constitution from consideration (especially when it is unremarkable that we would view English law to make judicial considerations in regard to the constitution) The Anderson piece, which makes what seems to be a strong case against the use of precedents, has this bizarre footnote:
It is important to be clear that the controversy about foreign case law is specifically about the interpretation of the U.S. Constitution. All hands, including Justice Scalia, would readily acknowledge that the interpretation of statutes, conventions, international agreements, and so on frequently requires recourse to foreign and international law. U.S. statutes, for example, are often drafted with foreign and international law in mind. Moreover, the international law at issue is not that to which the United States has assented by ratifying a treaty, or customary international law acknowledged as such by the United States, but instead unratified international conventions and assertions of customary international law which the United States does not accept as custom. When this article refers to foreign law and international legal materials, this specific meaning is intended.
This seems to lay out a whole lot of international law that can be inserted and dealt with, so how logical is it to make the Constitution an island that can’t be trod on?
The second is the one that Breyer enunciates, which is
I don’t normally put these things in. Sometimes I do if I think they have some significance in my thinking and it will be useful to people. I think an opinion should be as transparent as possible. And for reasons of transparency, if I thought it was helpful I might put it in. And also I probably think that — but these are not major things in the opinion. But occasionally it can help (to ?) show some of the other countries, as I said. But I think transparency is important in an opinion.
Ironically, the Miers nomination is defended precisely in the opposite way that you argue against this, in that Miers has experience outside the normal parameters, which makes her a good candidate (not saying that you are defending Miers, just noting this) Obviously (I think), we want our judges to be well and widely read and take into account a range of information, so we don’t want them to go into some clean room in order to draw their conclusions about Constitutional issues.
I also was a bit taken aback by what I think is an undercurrent of racism in the discussion, where one of the examples against considering foreign law and decisions is ‘why would we want to take the opinion of someone from Zimbabwe’. (Both Scalia and Anderson invoke this, I think) Perhaps a Zimbabwe precedent was cited, but I find what I think is the underlying notion that ‘of course, Africans couldn’t be expected to inform us of what is legal and right’ disturbing, though I may be overreacting.
Stepping back from this as a debate in values, I see this as a development outside of that. In the New Yorker article, Toobin reports Kennedy as suggesting that this is a shift, just as the shift in using statistics and empirical data came at the turn of the century
At the beginning of the twentieth century, Louis Brandeis, then a Boston lawyer, began filing briefs with the Supreme Court which relied not only on judicial precedents but on empirical data, which was then beginning to be collected in a systematic way. His victory in the landmark 1908 case Muller v. Oregon, which upheld restrictions on the working hours of womenâthe Courtâs opinion noted Brandeisâs references to âbureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and Europeââchanged the way lawyers and judges conceived of evidence.
I’m headed to bed right now, so I won’t be able to answer until tomorrow morning. Y’all play nice, ya hear?
what happened? It brought in far more than I quoted. Kitten, please delete the prior post. Let’s try again:
“I’ve noticed you haven’t responded to any suggestions that Bush v. Gore should be considered judicial activism.”
I’m not engaging that question at this time for the same reason I’m trying not to talk about Roe–there is no point tackling the hard and emotionally invested cases when we can’t even discuss the easy ones without coming apart at the seams. It would be like trying to tackle partial differential equations when we can’t even agree on the principles of basic calculus (or arithmetic even).
To me, Bush v. Gore is as naked a case of judicial activism as there comes, which I think even the justices realized when they said it could not have precedential value. If you do not want to discuss it in detail, will you at least concede that the right half of the court has engaged in judicial activism on occasion?
A very belated yet still heartfelt congratulations, Katherine.