…for they can tell me whether this analysis* of the recent compromise on judiciary appointments is Received Wisdom of the Ages, Absolute Balderash or somewhere in between.
(via Instapundit)
*Short version of the article: Everybody Went Back To The Status Quo, And Here Are Some Colored Lines For The Non Lawyers To Look At.
hey, why don’t the CATO types in favor of a liability approach to regulation get more jazzercised about building a more efficient court system, one component of which would entail ending these silly appointment fights?
a more efficient court system, the trial lawyers would have a field day with that.
Chuck Schumer raised the bar on appointments you now need sixty votes to get through the senate. Thus, what was rare is now common place and the media doesn’t seem to be bothered by it.
It will be interesting when the litmus test changes from abortion to capital punishment. I suspect an interesting battle and a fair bit of whining.
Stop appointing wingnuts, then we’ll talk.
Oh, yeah, blue slip rule.
Yup, pretty much no compromise. Liberals had their field day/decades changing the nature of the judiciary. Now they are beginning to see that an unaccountable judiciary which likes making dramatic social changes isn’t so pretty when you can’t manipulate all the levers.
Can we all go back to the idea that laws have something to do with legislatures soon?
I agree with Sebastian. Justices, appointed and nearly unimpeachable, are the least democratic branch of our government. They should be given as little power as possible. Those who celebrate the civil rights advances of past judiciaries are celebrating the results, not the methods, and are incorrect in assuming that it was the only method available.
“Liberals had their field day/decades changing the nature of the judiciary. ”
This is a bit ahistoric in not noting that the pendulum simply swings. The first half of the 20th Century had a completely conservative Court, which struck down numerous of Roosevelt’s laws, leading to the attempted “court-packing” expansion, leading to a more cooperative-with-Roosevelt Supreme Court, made further so by his and Truman’s appointments, and Eisenhower’s appointments of moderates (he famously said he considered appoint Earl Warren his greatest mistake), Johnson’s appointment of liberals, and then the swing back to conservatives beginning with Nixon, ameliorated only by Nixon’s appointments of moderates Blackmun and Powell, Clinton’s appointment of moderates, and Bush Elder’s appointments of the moderates Souter and Kennedy); stare decisis, of course, is the critical factor.
The real person to blame for the judiciary is John Marshall, and the way he worked Marbury v. Madison.
“Justices, appointed and nearly unimpeachable, are the least democratic branch of our government. They should be given as little power as possible.”
There’s definitely something — much — to be said for that.
As there is for the fact that we are a Republic, as well as a democracy, that one of the most basic principles of our system, as laid down by the Founding Fathers, is the separation of powers into a tripartite system, and that there are issues where the rule of the mob, the will of the masses, governed by the passions of the day, are best over-ruled, at times, by the part of government most insulated from those passions, best educated in the history of the law.
It’s a great, and somewhat amusing, curiosity, but a symptom of where we are in the pendulum swing, that currently the Republicans are eagerly crying out “we are a democracy, we are a democracy!” and the Democrats tend to presently lean on a crucial detail of our being a Republic.
Some of the worst decisions the Supreme Court has made has been when it gave into the will of the people, the Legislature, and the Executive. Ladies and Gentlemen, I give you Korematsu v. United States.
Korematsu, which allowed the creation of concentration camps for our own citizens of Japanese ancestry, which only a few these days will agree was rightly decided, was a perfect example of letting the Legislature and Executive and the “people” have their way. Rightly decided, they should have struck down the laws allowing it. Or would you argue that the SCOTUS should not have had this power, and only the legislature should have had it?
It’s really not remotely at all as simple as “the courts should have as little power as possible.” That simply goes against the entire principle of separation of powers into three branches of government. Not two-and-a-half or two-with-one-to-do-what-we-say.
“which struck down numerous of Roosevelt’s laws”
Most of which were entirely unconstitutional but I guess that doesn’t matter.
Who said anything about 2 and 1/2 branches of government? I would be thrilled with a strong court that actually bothered to consult the Constitution. The problem is that there are 3 branches of government that are supposed to be ruled by the Constitution, and it isn’t only two branches that take unconstitutional action.
“Who said anything about 2 and 1/2 branches of government? I would be thrilled with a strong court that actually bothered to consult the Constitution. The problem is that there are 3 branches of government that are supposed to be ruled by the Constitution, and it isn’t only two branches that take unconstitutional action.”
Which branch has the power of Constitutional review, Sebastian?
Do you want to revoke Marbury v. Madison? Or do you simply want the Court to decide things the way you think they should be decided, according to your study of Constitutional law, which possibly exceeds that of the Justices and their clerks?
You’re perfectly entitled to a reading of the Constitution, and how laws should be judged against that reading, of course. But your declaration of what is and isn’t unconstitutional doesn’t make it so.
Since the Supreme Court rules on what is and is not unconstitutional, they are definitionally incapable of taking unconstitutional action.
You can disagree with their decisions; I often disagree with their decisions. But neither you nor I get to Constitutionally decide what is Constitutional.
Incidentally, what do you think of all the recent SCOTUS decisions invalidating whole swathes of Congressional powers to pass laws, primarily those that are either binding upon States, or limit State power or legal authority?
Liberal? Activist, or in keeping with stare decisis?
Or is it only “activist” when you disagree with it?
Congress retains the power to remove areas of law from SCOTUS review. And, of course, there remains the power of Constitutional amendment.
Good points, Gary. I do believe in the effectiveness and wisdom of the separation of powers, and indeed one of my biggest complaints about the Bush administration is his (their) apparent belief that checks on their power are foolish hindrances, and their effectiveness in circumventing those hindrances.
When I say the court should have as little power as possible, I’m probably not referring to power in a traditional sense. Anyway, I’d do better to restate it as ‘Given the undemocratic nature of the judiciary (as well as the near total lack of accountability and the great force of precedent), we should be very diligent in controlling their power and ensuring it is properly checked.’
Additional thoughts: there are, of course, good arguments that instead of Brown v. Board of Education, desegregation should have been left to “the legislature(s).”
Problem: under Jim Crow laws, and SOP, pretty much no “black” people in the South could vote. Might not that indicate a problem with leaving such an issue to the “democratic” legislature?
Civil rights laws for most of a century were stopped in the “democratic” legislature — which didn’t allow “black” people to vote, didn’t allow, for much of the period, women to vote, and had wildly disproportional voting districts — the undemocratic filibuster.
Does this indicate a problem with leaving everything to the “democratic” legislature, beyond what I’ve already mentioned?
“‘Given the undemocratic nature of the judiciary (as well as the near total lack of accountability and the great force of precedent), we should be very diligent in controlling their power and ensuring it is properly checked.'”
That’s sufficiently vague that I wouldn’t argue against it.
😉
I’m not clear what it actually means in practice, but it sounds good.
😉
Or do you simply want the Court to decide things the way you think they should be decided, according to your study of Constitutional law, which possibly exceeds that of the Justices and their clerks?
Isn’t that what everyone wants?
Of course, they’re all wrong. The Court should decide things the way *I* think they should be decided. But it’s nice to let them dream 🙂
“Isn’t that what everyone wants?”
To some degree, and it’s certainly true to various degrees, from totally, to slightly, amongst both judges and those professionally involved in Constitutional law, in my observation, but it’s not entirely true, either.
I’m no lawyer, unlike Some Here, but I’ve invested a reasonable amount of time in amateur study, and it’s clear that plenty of professionals, down to good law students, will professionally argue for what their best interpretation of precedent calls for, despite delivering a result they abhor.
This is certainly true of many judges, and to a fair degree, it’s been true many times of Supreme Court Justices.
One clear amateur mistake, though it’s based to some degree by various legal theories, is basing one’s opinions on “constitutionally” simply and solely on the text of the Constitution, as if we don’t have centuries of precedent, legal reasoning, and built-up legal theory to also not just optionally, but necessarily, draw upon.
And, as I said, I’m not a legal professional, it’s clear that it’s essentially ignorant to simply operate as if the Constitution itself were all that were relevant to constitutional law. But without steeping one’s self in the long history of precedent, reasoning, and theory behind a particular decision, it’s often simply impossible to understand it, and equally simple to declare that it is therefore “unconstitutional.”
No offense intended to anyone.
There are plenty of decisions I’ve disagreed with, but I don’t fool myself that my judgement is sufficiently educated as to be sure of myself.
Gary: all of my remarks above were in jest, some more than others. In fact, your subsequent comment is, largely, my opinion too.
As something of an aside, I was once a member of an internet board that was in the process of changing its rules. Another member was arguing that she didn’t like the current draft: it was too long and vague, requiring too many judgment calls to objectively implement; we should have a clean, neat, unambiguous rules list like the Constitution instead. I’ve never received quite so hostile a silence as when I remarked that I too would like a set of rules that didn’t require some 200 volumes to properly interpret…
“Gary: all of my remarks above were in jest, some more than others.”
No! Really?
Sorry, I could have, and possibly should have, acknowledge that, but I thought it was kinda obvious; I just used it as a jumping-off point for some stuff I felt like saying.
I’ve actually written a couple of “constitutions” for small organizations, as well; I believed in keeping them short and clear, as I didn’t feel making it long and detailed would cause any less argument; it would just offer more text to argue over.
No! Really?
Yeah, shocker, I know. But on the Internet, &c
I’ve actually written a couple of “constitutions” for small organizations, as well; I believed in keeping them short and clear, as I didn’t feel making it long and detailed would cause any less argument; it would just offer more text to argue over.
I’m a fan of that too, but the problem I’ve found is that so much gets decided in the breach that it’s often better to spell it out more explicitly than not. The advantage of the lengthier approach is that it can slow down conceptual drift; the drawback is, as you said, it gives people more to argue about.
“Since the Supreme Court rules on what is and is not unconstitutional, they are definitionally incapable of taking unconstitutional action.”
This is clearly not true. They are operationally incapable of taking unconstitutional action. That doesn’t mean that if they say that the 1st Amendment allows for the establishment of religion that they are correct. It says no such thing. And if we want to have an operational Constitutional government we can’t let them say such things. That doesn’t mean that their fake interpretation is constitutional. It just means that the structure of our government makes it very difficult to correct them when they are wrong about the Constitution.
when they are wrong about the Constitution
According to whom? You’re implying that there’s an absolute standard of what is or isn’t constitutional. There is not — the constitution does not include specific rules as to how it must be interpreted. If Congress passes a law establishing a national religion and five justices decide that the law is consitutional, then all you can say against it is that all reasonable people would agree that it was a very bad interpretation.
Back OT?…
I thought the post was a remarkable piece of blather (but then I have that reaction to a lot of analytical poli sci, as if you can make a soft science into a hard one if you use enough “formulas” and “proofs”).
Two areas in particular I thought were odd–
1) the post entirely rests on the assumption that no other judge was going to receive a recess appointment, an assertion which I don’t see any evidence for (I think there’s some statement like “we know this from how the process went”); and
2) the post ignores the agreement not to seek cloture votes on any nominees, which is significant to the degree that you think cloture debates on judges have any value in motivating the base, or convincing the American people the other side is obstructionist (I have doubts myself on that point, but since the R’s have held several extended cloture debates maybe they have a different view).