July 6, 2005

When is ideology an "extraordinary circumstance" within the meaning of the filibuster compromise?

I'm giving the prize to Senator Mary Landrieu (D-La.) -- one of the fourteen compromisers -- who took this postion:
"A nominee's political ideology is only relevant if it has been shown to cloud their interpretation of the law. . . . A pattern of irresponsible judgment, where decisions are based on ideology rather than the law, could potentially be 'extraordinary.' "

Change "could potentially be" to "is" and you've nailed it.

Of course, we'll still have to argue over what counts as "clouded" and "irresponsible," and I'm going to withdraw my approval if it turns out to be just the view that the decisions produced by principled originalism or textualism are wrong. Tell me, Senator Landrieu: If you applied this standard to Justice Scalia or Thomas, would they deserve a filibuster? The answer should be no.


Goesh said...

I don't know but some are now thinking John Roberts would look realy spiffy in SC black. One with a strong 'right hook' is going to enter the ring, we all know it.

Matt said...

While I would not say Scalia's appointment constituted "extraordinary circumstances," I believe Thomas' would based on his rather slim resume at the time of his appointment and the never fully answered to my satisfaction sexual harassment accusations would raise at least significant concerns about his fitness to serve on the Court.

Ann Althouse said...

Matt: that's not properly responsive to my point, which is to test Landrieu's standard, which is about a pattern of decisionmaking!

Ann Althouse said...

Take all Thomas's work on the Court and tell me if Landrieu's standard for "extraordinary circumstance" is met. I say the answer should be no.

Ann Althouse said...

And Matt, looking back on the question of sexual harassment, it's damned obvious that Thomas was terribly wronged by those accusations.

Patrick said...

I agree that the answer should be no, but I suspect that politics demands a yes answer.

I also think that Landrieu left herself enough wiggle room to legitimately say “yes” to a Thomas-style nomination because of his views on the stare decisis. Since Thomas places little or no value on prior cases he believes were wrongly decided (based, we shall assume, on his judicial ideology) then Landrieu could plausibly argue that his decisions have been based on ideology rather than the settled case law.

To extent this a little farther, Landrieu could say “yes” to any Justice who has voted to overturn Roe v. Wade since, presumably, such a Justice was making that decision based on ideology (i.e. judicial philosophy) and not based on settled case law. In fact, I think under this interpretation of Landrieu's comments, you could answer "yes" to the majority of the Supreme Court.

The trick to Landrieu’s “test” will be in determining what counts as “the law.”

Ann Althouse said...

Patrick: If ideology is taken to mean theory of interpretation, then I reject Landrieu's test.

Patrick said...

I think that ideology is closely tied to theory of intepretation, especially for advocates of a "living constitution." I believe it is nearly impossible for justices to create rights that did not previously exist (or were not previously recognized under the law) without ideology playing a role.

Also Landrieu does not appear to be a lawyer, and most non-lawyer's I know (and many lawyers as well) do not talk in terms of "theory of interpretation" but instead of "ideology."

Ann Althouse said...

Patrick: Yes, but if you look at her whole standard, the langauge about clouded intepretation and irresponsibility, it would be ridiculous to turn around and say those who follow original intent or textualism fall into that category. If she were to do that, she would richly deserve to be slammed. Her seemingly rational standard would turn into a cheap trick.

Patrick said...

Also, I think the devil in the details is what Landrieu considers to be the "law." If a decision, say Roe v. Wade, is taken to be the "law" a justice who would vote to overturn that decision would be, by definition, basing their deicison on something other than the "law."

While you may describe the basis for overturning established precedent as "legal interpretation" I think Landrieu has left enough wiggle room to call it "ideology."

Ann Althouse said...

Patrick: I strongly disagree with you. If she pulls the wiggle your describing, she richly deserves to be slammed.

Yevgeny Vilensky said...

There's two ways to take her statement.

Option 1: A nominee whose political ideology forces him to rule in favor of his desired policy outcomes over what the law and Constitution says.

Option 2: A nominee whose interpretive philosophy forces him to overturn precedent.

I am with her if she means #1. I am vehemently against her if she means #2.

The problem, however, is that I fear that she means #2. When the Left hijacked the Courts starting in 1937, they decided to overturn years of precedent and start affirming FDR's policies. Now that their view of the Constitution (based on a previous rejection of stare decisis) is precedent itself, they start yelling "stare decisis! stare decisis!" It seems a little disingenuous.

If she does mean #1, then she would have to reject most of the liberal judges during the New Deal (in particular, Jackson) as well as some of the rulings of the Warren and Burger Courts. (And yes, I do know that Warren, Burger, etc. were appointed by Republicans. There are Republicans who are liberals you know (it was especially more common 30-40 years ago). Ever heard of Lowell Weickert? Or Justice Stevens?)

Gerry said...

Landrieu is one reason I have come to believe the nominee will be Edith Clement. I believe George will not be able to resist playing the homestate card on a southern Democrat Gang of 14 member.

Gerry said...

(And if you think that's a crap way to choose a SCOTUS Justice, I agree, but given the state of the Senate, the politics of confirmation are, unfortunately, extremely important in the decision making process.)

Tom Nally said...

Landrieu (my US Senator) and others use the term "ideology" pejoratively, but I'm not sure that the term is useful.

Suppose a Supreme Court candidate says "my ideology is fealty to the US Constitution, and it will inform all my decisions."

In Landrieu's mind, has this candidate disqualified himself/herself by allowing ideology to play such a major role in decisions?

---Tom Nally, New Orleans