Politics Can’t Be Removed From Justice
Whenever there is a Supreme Court nominee, many people come out and say that the judgment should be based on qualifications of the nominee, not ideology or “politics.”
A sampling from the comments:
DaGoat: “Partisan opposition to appointees on political grounds under the cover of “advise and consent” was wrong when the Democrats did it, and it’s still wrong. ”
AustinRoth: “I do not care for her judicial philosophies, but she is an eminently qualified jurist, and should be confirmed quickly without rancor.”
CStanley: “The best way for the GOP to avoid the trap is to agree to confirm her, but not to agree with her judicial philosophy. They shouldn’t block the nomination but they should make it clear that the reason for not doing so is the same as they argued when the Dems succeeded in voting down Bork and almost succeeded in voting down Thomas- the fact that the confirmation process isn’t meant to be based on agreement of ideology.
At the same time, it’s perfectly legitimate to voice disagreements with her judicial philosophy and for activist groups to use this pick as a rallying cry to take back the WH before the Democrats are able to tip the court’s balance toward liberal activism.”
Quite frankly I don’t understand this at all. I’m no lawyer or legal student, so maybe one of them can weigh in, but I fall strongly in the camp that believes that there is no such thing as having Objective rulings of laws in the way that a scientist should be able to make Objective determinations of fact (even in most science that’s impossible because experimental design is based on the hypothesis, so bias of interpretation creeps in. I can’t count the number of times that I’ve seen a scientist get up and say that their experiment explains something and then the next one has a differing hypothesis and says the data supports theirs too — even though they are fundamentally incompatible based on how they were constructed. Both people are right most of the time, it’s not that they are doing bad science, it’s that their hypothesis can’t encapsulate reality completely.)
Rulings, even correct “non-activist” rulings will always be a product of their time and place. A good judge in one era may be a weak judge in another. In fact, as much as we hate to admit it, that’s the way our legal system is constructed. Congress writes laws vaguely, the Executive decides how to implement them and has large leeway, and the Judiciary not only rules based on the letter, but as a balance to ensure that the execution of the laws is carried out in its “intent” as related to the current circumstances. I find it funny how a lot of conservatives act like Originalism is the way to go, but overlooked when Justice Roberts has repeatedly said that the courts should pay attention to how their rulings will affect society as a whole and not shake things up too much regardless of textual interpretation.
I strongly opposed Alito’s confirmation because he was one of the people that helped construct the Unitary Executive theory and had consistently shown he would uphold that in his rulings. In a time with a very weak Congress and a long term nebulous threat, I felt that this was a very dangerous interpretation of the law. Is it a sound legal philosophy? I’ve read several legal experts that believe it is, while strongly disagreeing with it and its products. In effect they say the theory is dangerous and can easily lead to a non-constitutional concentration of power in the Executive that will be very hard to eliminate, but there is nothing on its face that makes it invalid. The end product of the theory is based on the political environment in which it is exercised, and the balance between Congress and The Executive is in constant flux. A weak Congress like we have now can easily give up too much power to the Executive and the courts will be the only check, while the theory originally arose at a nadir of Presidential power that even many of these liberal leaning scholars felt was too much. Similarly a radical Congress may need to be slowed down, while a reactionary one may not provide redress for minorities.
For me “partisan” as a negative means “opposing/supporting something because it’s done by your side, and you’d hypocritically switch positions if the sides were reversed.” A lot of Democrats are acting partisan about detainees because Obama has said that he’ll probably hold some without trial — something that was decried when Bush did it but now is considered “measured.” Regardless of whether you think it’s the right policy, at least I hyperventilated equally. For me “politics” means making tactical moves simply to hurt the other political party, without regard to long term effect. If a party is trying to destroy a nominee to make the President look bad — or presents their case in a way to make gross generalizations that fit more into a unified attack than anything about the nominee — then that’s “politics.” My concern about Alito had nothing to do with wanting to stick it to the GOP.
But “ideology?” Part of justice is wisdom, and a large part of wisdom is recognizing the inexorable flow of history. It’s so hard to judge who will be a good pick when they could be on the court for decades, but I think that being able to balance all the inherent contradictions in our Country and Law is extremely necessary. And someone’s ideology is a reflection of how well they will do that. It is also the basis for empathy, the word derided so much in this conversation.
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18 Responses to “Politics Can’t Be Removed From Justice”
For one thing, Mikkel, I'm fairly sure that my leanings are more toward Originalism than yours are so even though I accept your assertion that there's no such thing as an absolute interpretation of original meaning, it's still a basis for interpretation which I think is generally more valid than the 'living breathing Constitution.'
But to me the concept that we were describing has to do with the Constitutionally appointed role of Congress in confirming the Chief Executive's choice of judges. All of the reasonings you give for favoring certain philosophies or favoring flexible philosophies based on the shifting flux of power between the other two branches may be perfectly valid opinions, but the Constitution doesn't really give Congress the authority to approve or block nominees on that basis.
I presume that voters factor in the ideology of a president and the likelihood that he'll appoint justices of similar ideology, and that in the end it tends to balance out (not a perfect balance but a fairly narrow pendulum swing over time) by the voters putting more or less concern on the SCOTUS balance if a president appoints more radically ideological picks.
My take is that many rulings are fairly clear cut (leading to 9-0, 8-1 or even 7-2 rulings). Others are not so clear-cut. And it is at the Supreme Court you will find most of the 'close calls'. The more obvious ones do not cause splits between the Circuit Courts, and never make it up the ladder.
But what we have been saying in fact agrees with your main point. Of course there are judicial philosophies, and they make an incredible difference at the SCOTUS level on how the law and Constitution is interpreted at any given moment.
The point I was trying to make, and I think CS as well, is that as a whole, I have seen the Right respect that difference, and the right of the Left, when in possession of the Executive Branch, to put forth and confirm those judicial candidates that meet their preferences. I have seen the Left launch war after war, and smear campaigns of truly disgusting proportions, to prevent the opposite from occurring.
And i have expressed the hope that the Right doesn't take a page from our oh so believing in tolerance and other viewpoints Left and go on the same warpath. It is and was wrong for the Left to so politicize the selection of SCOTUS justices, and it would be even more wrong for the Right to do so, because we actually do believe that each side has a right to their judicial point of view, unlike the Left.
“but the Constitution doesn't really give Congress the authority to approve or block nominees on that basis.”
Haha this is ironic, because I think that it very clearly was the intent and is a microcosm of the post. If you look at the historical writings of the time, even the Federalists envisioned a very strong Legislative Branch that could keep the President in check on all matters either through withholding money, blocking appointments or impeachment. To me “consent” means approve of the nominee on all bases. If it said explicitly “the Congress can only block based on qualifications” then yes, but it doesn't and I think that is an artificial construct and not “originalist” at all — in the sense that the Founding Fathers would be confused that anyone would think so.
Also, the voters tend to vote based on the present and in rejection of the past…not forward looking at all. We're at a point where a 2-3% swing results in a “mandate” and so very minor changes greatly affect makeup. To me the Judiciary is the most anti-Democratic establishment and should be selected on the basis that the voters will give little thought about it.
The point I was trying to make, and I think CS as well, is that as a whole, I have seen the Right respect that difference, and the right of the Left, when in possession of the Executive Branch, to put forth and confirm those judicial candidates that meet their preferences. I have seen the Left launch war after war, and smear campaigns of truly disgusting proportions, to prevent the opposite from occurring.
Yes, exactly. It's not that we don't believe that there's any ideology or politics in the judicial branch, but that we feel a need to respect the boundaries of the politics and the authority vested in the various branches. I don't think this is the same as arguing that people are being partisan, but it's about whether or not the ideologues of the party that didn't win the Executive branch should have a say in the ideology of the court nominees. I mean of course the voters of the 'losing' party can still disagree or feel that a particular appointee may be too far to the left or right, but it's the old adage that elections have consequences.
Now it remains to be seen whether or not the GOP this time around will respect the boundaries that they've always argued for in the past. I hope they do, even though I'll probably disagree with a lot of Sotomayor's rulings- I'd rather see the principle upheld (and that's leaving aside the whole other issue of pragmatism, since the GOP probably has no chance of actually blocking nominees right now anyway and will only end up with a black eye for delaying or attempting to obstruct.)
mikkel – then you would support the Republicans as simply following a Constitutional mandate if they filibuster Sonia Sotomayor? No objections to them exercising a vital, needed role as defined by the Constitution?
BTW – you are correct that the founders saw the 'advise and consent' clause a strong imiter on Presidential appointments as you described, not just to ensure they were qualified. They were indeed very concerned about a too powerful Executive.
Last thought – for those not following SCOTUS today, there was a surprise ruling today, even by court followers like myself. SCOTUS overturned Michigan v. Jackson today, and changed the face of the right to council. This was not expected, as it was thought Kennedy would not be willing to go so far.
It is a horrible, horrible ruling, and one that shows the danger of a court that for me leans too far right too often.
That is the ultimate SCOTUS problem. You cannot get a court with a moderate majority in these days and times. Each side wants to violently yank it in its preferred direction.
See we just disagree about the nature of authority in the specific branches. You see it as each branch has very clearly defined powers and they stay that way. I see it as every branch has a few defined duties and a few constraints, and the rest is a dynamic balance that ebbs and flows over time. If one side is pushing too much then the others push back [with incidentally Congress having the most power because it can remove anyone, but the extent of their power is soft power because it's almost all political.]
A good example was Bush and the warrantless wiretapping. Here he was clearly breaking the law but individuals could not get redress because they couldn't prove they were targets and thus had no standing. They couldn't prove it because Bush was claiming executive privilege and that it'd harm national security. Now you could argue that it is up to the Executive to determine how to carry out national defense and thus the judiciary should take that at face value and throw out the cases. On the other hand, it was common knowledge at that time that there was an illegal program in place, and the primary issue was whether the people that sued were being personally targeted. In that light, I think it's very clearly the right decision to say that the government must prove to the judge that simply acknowledging it for that one person would harm national security, and even more so, the burden should be catastrophic harm. The laws aren't written to say “you can't do this…unless you think we're in danger.” [Quite frankly, if someone is suing then even if they are a bad guy the program would be ineffectual at that point anyway.] So it's not an enumerated power of the Judiciary that they can intervene into what is deemed security sensitive information, but it is a power that the Judge gets to make a ruling on the validity of an argument (heck that's why they have to issue a decision, it's just become rote as a matter of custom, not law, to dismiss things based on the claim) and with that power they could determine whether there was standing and go from there.
No philosophical objections no. I may (or may not, I dunno much about her) have political objections and argue that it should factor into the next election, but they wouldn't be doing anything wrong if they truly opposed her for ideological reasons. It's up to voters to decide what ideological makeup they want in Congress…but they are definitely within their rights. Also I'd rather have the focus not be on the filibuster itself (i.e. “they are ruining the right to an up or down vote!” like it is an awful thing) but just that they believe she is not acceptable and argue why she is.
“You cannot get a court with a moderate majority in these days and times. Each side wants to violently yank it in its preferred direction.”
IMO that goes to the heart of this post. Confirming these judges that are very pigeonholed leads to this outcome. I happen to lean to the opinion that Chief Justice Roberts — while consistently voting with the “Right” — does take the considerations I mention into account, but it's not noticed very much.
mikkel, I can't imagine how the process could function effectively under your scenario, because if the opposition party in Congress succeeds in blocking a nominee for ideology then the Executive can then well appoint one after another of a string of nominees with similar (or stronger leaning) ideology.
Also, on the Founders' intent, this is the most famous writing I know of on the topic and I honestly don't see that it supports your view. This passage, for instance, certainly suggests that their reasoning was based mainly on preventing the appointment by the president of incompetent cronies:
My understanding is that advice and consent was a compromise between those who wanted a more empowered Executive branch and those who wanted a robust Legislature to check the power of the Exec, and the former only ceded a very narrow degree of control by the Senate on appointments.
“I can't imagine how the process could function effectively under your scenario, because if the opposition party in Congress succeeds in blocking a nominee for ideology then the Executive can then well appoint one after another of a string of nominees with similar (or stronger leaning) ideology.”
Well yes, but that's kind of the point of the Senate. You might argue it leads to political deadlock, but that is a function of who happens to be elected, not a philosophical view on governing.
Here is an alternative view that wasn't as formal but wanted more of a role. I have to admit I wasn't aware of that particular Federalist section and it's obvious what Hamilton wanted.
Of course the Senate says: “The importance of the position, the qualifications of the nominee, and the prevailing political climate influence the character of the Senate's response to each nomination. Views of the Senate's “proper role” range from a narrow construction that the Senate is obligated to confirm unless the nominee is manifestly lacking in character and competence, to a broad interpretation that accords the Senate power to reject for any reason a majority of its members deems appropriate. Just as the president is not required to explain why he selected a particular nominee, neither is the Senate obligated to give reasons for rejecting a nominee.”
Reading various things, including some of this book one thing is clear — that the debated philosophical setup of the government must be treated differently than the seminal implementation when discussing “The Founding Fathers.” I was lazy and didn't do that plainly enough. As such it does seem to suggest that the Framers anticipated that the Senate may have a limited role, while the first few Senates quickly stepped in to argue that they should have a more active role in response to actual governance.
Take that as you will.
Also from the Senate site “While the Senate has explicitly rejected fewer than 2 percent of all cabinet nominees since 1789, nearly a quarter of all Supreme Court nominations have failed to be confirmed, their nominations rejected, withdrawn or declined. “
AR “I have seen the Right respect that difference, and the right of the Left, when in possession of the Executive Branch, to put forth and confirm those judicial candidates that meet their preferences. I have seen the Left launch war after war, and smear campaigns of truly disgusting proportions, to prevent the opposite from occurring.”
I'd say your partisan lenses need cleaning. The GOP held up dozens of judgeships under Clinton, creating vacancies that clogged the courts for years.
But that had nothing to do with them…it had to do with a gay appointee! So yeah.
GD – so you see not holding hearings, a parliamentary move (which has also been a favorite trick of the Left as well) the equivalent to the character assassination attempts against Alito, Edwards and Thomas? Or in the past, Bork?
As they say on SNL, REALLY?
My 'partisan lenses' need no cleaning, yours do. Please find me the links to the attacks by Republicans, when they launched their smear campaigns against Breyer and Ginsburg.
AR I tend to side with GD on this one. The Democrats have probably been more high profile in obstructing nominees but really what we are arguing is a matter of degree, not of a difference in basic ethics or attitudes. The GOP was perfectly happy to hold up Clinton nominees on purely political grounds, sometimes as “punishment” for Democrats voting against a bill, etc. This is the attitude that needs to go.
Let's face it, Sotomayor will be confirmed unless there are some huge skeletons in her closet. This is an opportunity for the GOP to take the high road and actually appear statesmanlike, they might as well take it.
On Mikkel's comments, he has a higher regard for the purity of politician's motivations than I do.
Sorry DaGoat, but it is not a matter of degrees. If all the Democrats tried to do was hold up confirmations for political purposes, well, frankly, that is Washington. You play in the big leagues, you know what is coming.
But that is different than the flat-out, open character assassination attempts against Alito and Thomas, and the veiled ones at Roberts. They tried to ruin these people's lives and reputations, not just deny them seats on the court.
GD: Your partisan lenses also need cleaning, the Dems held up 10 judgeships under Bush I. All eventually became Clinton nominees.