September 21, 2005

"This is all that liberals like myself can fairly expect from President Bush's nominees."

Lawprof Bruce Ackerman on John Roberts:
The only way for Democrats to reverse the slow rightward drift in constitutional law is by winning elections. Within the present political context, it is fair to insist that President Bush recognize that he lacks a popular mandate for revolutionary constitutional change. In nominating Roberts, he has indeed made this crucial concession. Rather than oppose the choice, Democrats should use it as a benchmark for the next nominee. Though Roberts might be an appropriate replacement for the right-wing William Rehnquist, the Democrats should insist on a more centrist justice to occupy Sandra Day O'Connor's swing seat.
That sounds like exactly the right position for the Democrats. Here's what I said on the subject, by the way, last Friday:
I'd say [the Democrats] should express their deep reservations, invoking issues that matter to their constituents, but still vote for him, and say that it's because of the agile mind their astute questioning enabled him to display at the hearings. This should be combined with a warning to Bush that he needs to nominate someone more moderate to replace O'Connor.

17 comments:

Bob said...

When and if Democrats win back the presidency, with or without mandates, we'll witness a dramatic reversal of claims. Suddenly, their nominees will not be expected to be moderate. Surprise!

Simon said...

Well, the obvious first thing to say is, in order to start winning elections, they have to start putting up candidates worth voting for, and they have to advance a program which is substantially better than the GOP's. The GOP victory in 1994 wasn't just because people were fed up with the democrats, it was because the GOP articulated an agenda which looked substantially better than anything offered by the moribund complacency of the dem-controlled House. Today's GOP agenda is a travesty of everything they rode to power on a decade ago, and they have become as corrupt and moribund as the majority they replaced - but where's the alternative? What's the dem program? You can't beat somebody with nobody.


What really bothers me, though, is the talk of "revolutionary constitutional change". The whole point is precisely that the constitution does NOT change, except by amendment! There is something profoundly Orwellian about describing as "revolutionary constitutional change" the returning to what the constitution actually says!

Matt said...

I'm actually shocked, given that in 2001, Ackerman advocated that the only appropriate thing to do was to shrink the size of the Court should Bush get any vacancies.

Bruce Hayden said...

I frankly don't see any reason that President Bush needs to moderate his nominations to the High Court. Bill Clinton sure didn't when replacing Justice White. Why the double standard here?

EddieP said...

I hope Bush nominates Janice Rogers Brown. If the NAACP and People for the American way are against her, that's good enough for me. Let the dems seethe. Sandra will be there until her replacement is confirmed. What is gained by forcing her to the sidelines?

Lou Wainwright said...

Has Bush been hurt by the Chief Justice's death? After all, was Roberts really going to have trouble being confirmed as O'Connor's replacement? That's what the original plan was, right? Then, if Rehnquist dies after Roberts is confirmed, Roberts is named Chief, and Bush still gets to nominate Rehnquist's replacement, who would be more conservative than Roberts by the argument that Rehnquist was more conservative than O'Connor. Now that Roberts has become Rehnquist's replacement the Democrats are using the argument that the next nominee has to be less conservative to match O'Connor. That seems like a pretty big impact based on when Rehnquist died...or is it? Ultimately do you think that it matters, or is the 'match game' aspect meaningless except to determine the Democrat's talking points?

aidan maconachy said...

Yes but Simon, a return to constitutional basics actually WOULD in fact be revolutionary after the liberties taken by so-called "progressive" judges, some of whom seem more comfortable trolling for international law precedents on Google than working within constitutional guidelines.

I liked Roberts' analogy of the umpire. These people were never appointed to set the cultural agenda or finesse legal provisions to suit a largely unstated agenda. Personally, I find THAT a lot more Orwellian and sinister than the back-to-basics priorities which Roberts eloquently presented.

Richard Dolan said...

Why is it that intelligent people of the more lefty political opinions just can't stop misunderestimating President Bush?

For the lefties, it has become common to assert as fact the most preposterous slurs against Bush, particularly where it comes to his picks for the judiciary. The idea that Bush is looking to appoint a bunch of hacks who will read into the Constitution their personal, radical right and religiously rooted political views is ridiculous. Bush and his nominees -- both Roberts and his other appellate court nominees -- have stressed time and again the exact opposite. His idea of a "conservative" or "strict constructionist" judge is the opposite of that caricature - someone who will not confuse the rule of law with the judge's personal views about sensible social policy or anything else.

Ackerman's critique of Scalia is also wildly far off the mark. Scalia's whole point about originalism is that it is the only approach to Constitutional adjudication that prevents a judge from reading into the Constitution the judge's personal views and values. There are many things, pro and con, one can say about that approach to Constitutional adjudication, and as Scalia himself has said, the best thing one can say about it is that his approach is better than the alternatives. But it's really hard to spin a theory plainly intended to cabin judicial discretion and reduce judicial power in matters of fundamental social policy into some right wing power grab designed to foist a "constitutional revolution" an an unwilling and unsuspecting public is not one of them. The simple truth is that Ackerman and similarly minded lefties want to see their particular theories of the Constitution, and whatever policy prescriptions they derive from it, written into Constitutional stone by judges who share their politics. Scalia's approach is designed to leave such matters to the political branches (both state and federal). Between those alternatives, it doesn't strike me that it's hard to choose.

Even time I read one of these screeds about how awful Bush is, and how he really just wants to trash the judiciary along with any sensible approach to the Constitution, I wonder what these ostensibly bright people who inhabit our law schools are smoking. Whatever disagreements there may be about Roe, or the 11th Amendment, the reach of Congress's power under the Commerce Clause or the Spending Power, or any other hot- button issue of the day, the rhetoric of the lefty opposition in the attacks on Bush, Roberts and Bush's other nominees has been just nuts.

The only sensible point that Ackerman makes is that elections matter. Well, yes, and we had one a year ago. There was a lot of talk during the election about the differences between Bush and Kerry in terms of the types of judges each would appoint. Some folks just haven't gotten used to the idea that the election is now over, Bush won, and is doing just what he said he would do in terms of appointing conservative judges. The Democrats may not like it, but too bad for them.

The idea that the Democrat minority in the Senate has some standing to control Bush's picks is silly. Just another instance of the lefties talking to themselves. All that the Dem minority could possibly do is filibuster, and the last time that tactic was put to the test, they decided to back down rather than pull the trigger. There is just no chance that Bush will nominate some non-entity to the Supreme Court. As long as the nominee has the background and accomplishments to be a credible Supreme Court justice, and s/he certainly will, the Democrats would have to be tone deaf politically to invoke afilibuster to defeat a Bush nominee to the Supreme Court. As the more electorially vulnerable Dem senators are likely to notice, the public particularly in their "red states" will be watching their "blue" senators closely. And all of that just gets back to the core idea that elections matter.

Henry said...

I don't even know how to determine what legal theory the Democrats believe in. Do they have a theory? Or do they just believe in certain outcomes?

I find the emphasis on outcomes dismaying because it blinds the partisans of the left to the very positive fashion in which "conservative" jurisprudence can lead to liberal outcomes (see Thomas' dissent in Raich, O'Connor's dissent in Kelo). What is described as liberal jurisprudence is a protean mess.

If all that particular advocates or Senators care about is preserving the outcomes of specific cases, there's no theory worth worrying about. All that's left is politics.

Simon said...

Richard:
The idea that Bush is looking to appoint a bunch of hacks who will read into the Constitution their personal, radical right and religiously rooted political views is ridiculous. Bush and his nominees -- both Roberts and his other appellate court nominees -- have stressed time and again the exact opposite. His idea of a "conservative" or "strict constructionist" judge is the opposite of that caricature - someone who will not confuse the rule of law with the judge's personal views about sensible social policy or anything else.

I'm sorry, I don't agree. Roberts believes in unenumerated rights; he believes in substantive due process. He has done so repeatedly on live television. The moment you give credence to that idea, you have left the reservation, as far as I'm concerned. What is the criterion for declaring something to be an unenermated constitutional right? Invariably, the answer has been personal preference. Sometimes that preference has been conducive to conservative ends, sometimes to liberal ends - but it is always results-oriented. As Ann Coulter pointed out, no Republican President, still less one with the surname "Bush", has earned the right to expect deference on his judgement for supreme court vacancies. I hope to be proved wrong about Roberts, but right now, in every way that matters, he looks like Tony Kennedy Mk.II.

Yevgeny Vilensky said...

Oh good. I'm glad that Bruce Ackerman has now ceded his lead for the Biggest Partisan Hack Masquerading as Legitimate Scholar Award to Erwin Chemerinsky.

In response to a number of people:

1) I think that the main critique of Scalia (as articulated recently by Jack Balkin on his blog) is that Scalia stakes the claim for originalism in some cases and for stare decisis in others, whichever suits him the best. I don't necessarily buy this critique, but it has some basis in truth. Since I'm not nearly as familiar with Sclia's jurisprudence as Balkin is, and since, in my experience, Balkin is more-or-less honest (certainly more so than Ackerman or Chemerinsky), I think it can't just be dismissed as partisan lefty hogwash.

2) The left does have a legal philosophy. It's just not articulated by the likes of Dick Durbin and Chuck Schumer. There are a number of people you could look to for it. There's Akhil Amar, the late John Hart Ely, Jack Balkin, Jay Rosen, some others. I think that there are differing schools on the Left. One important one is that the Constitution, most of all, ought be seen in the context of establishing democratic rule. Amar and Ely have argued for this. As such, followers of this will often come to conclusions one would not expect from the Left (see e.g. Amar's view on the Second Amendment, Ely's criticism of Roe, etc.). There are others who believe that the fundamental thing the Constitution is about is protecting fundamental rights and liberties. Coupled with what usually is an underlying socialist philosophy, it usually means that you have the right to sex with albino monkeys (provided the monkeys consent, of course) but not the right to own property.

3) The Ninth Amendment guarantees protection for unenumerated rights. Believing in unenumerated rights is not anethama to a constitutionalist. Bork may think that it's an inkblot and Scalia may think that the Ninth Amendment doesn't mean anything, but it definitely means something. If you're serious about knowing what the Ninth Amendment meant within an originalist framework, go read Randy Barnett's brilliant article on this issue (it's on SSRN). Or, better yet, pick up your copy of the Constitutional Convention debates (both the federal debates and the various state ratification convention debates). Sorry, but this is where I get off the lunaright reservation.

That doesn't mean, however, that you can just pick rights out of thin air. What it does mean, though, is that you can't make an argument that says, "That right isn't explicitly in the Constitution, therefore you don't have it." When deciding whether to grant said right, common law is a good place to consult, another thing to look at is actual philosophy, you know, what the nature of man is and what rights are fundamental to him functioning and fulfilling his telos.

Sean said...

But the Democrats didn't follow Ackerman's rule when Byron White left the court. Ackerman would have a lot more credibility if he had proposed this rule back then. Of course, he would need to be an actually objective thinker, not a partisan fraud, for that to have happened.

Simon said...

The Ninth Amendment guarantees protection for unenumerated rights. Believing in unenumerated rights is not anethama to a constitutionalist...it definitely means something. If you're serious about knowing what the Ninth Amendment meant within an originalist framework, go read Randy Barnett's brilliant article on this issue

Well, first of all, I should add that there is an excellent companion piece to Barnett's article, J.D. Droddy, Originalist Justification and the Methodology of Unenumerated Rights, 1999 L. Rev. M.S.U.-D.C.L. 809. I genuinely appreciate and enjoy most of Randy Barnett's work, but I respectfully dissent on this point. I don't think his theory is outlandish or absurd, and he and Droddy certainly present more compelling propositions for how to find unenmerated rights than any of our friends on the living constitution bloc, but I just don't buy it.

More fundamentally, I don't agree with you that EITHER "[T]he Ninth Amendment guarantees protection for unenumerated rights", OR "the Ninth Amendment doesn't mean anything".

I commented on this matter briefly at some length in two replies here, and so I will only summarize here. I beleive that the ninth amendment holds very real and pertinent meaning, even if it "only" means what it appears to say, which is that the enumeration in the bill of rights of certain rights of the people is not an EXHAUSTIVE list of the rights of the people. Along with the concern that granting exceptions to powers not granted to the general government might be construed so as to imply greater powers, one of the prime motivations of the framers who opposed the addition of a bill of rights was that listing the rights of the people in the bill of rights might be construed as being a definitive list, which it clearly is not. The ninth amendment says, just because a right isn't protected by the Federal constitution doesn't mean it can be protected by a state, just as the tenth amendment says, just because a power isn't granted to the general government doesn't mean that it can't be wielded by a state.

I do not believe that the Constitution was intended to - or, in effect, does - create unenumerated rights that could be enforced against the states by an unelected Federal judiciary. This seems absolutely contrary to everything we know about the framing of the constitution and the concerns the framers were addressing. The only dissent regarding the federal judiciary at the philly convention was that the constitution should not prescribe a federal judiciary, and rather, that only a supreme court should be spelled out in the constitution, the details of the lower courts left to Congress to work out. That was the extent of the controversy - yet, in that gathering, with those men, surely had there been the slightest suggestion that judges of the general government could pick and choose rights to enforce against the states, would this have not been controversial? They certainly intended for the courts to have the power to strike legislation (see Barnett, The Original Understanding of the Judicial Power), and they provided in the original constitution and latterly inthe bill of rights, a list of what government could and couldn't do, that the judiciary could enforce. Are we REALLY to believe that, having done so, they said "oh, and you know what? All this plus any rights that the Judge feels is implicit in the concept of ordered liberty"? This seems incredible. Why would the Senate, the defender of the state governments, have permitted to pass an amendment which made the state governments subject to the imaginations of Federal Judges, and a fortiori, why on earth would the states have ratified it? If the original understanding of what became the ninth amendment had really been what it is now contended to be by our living constitutionalist friends, it would never have been ratified!

Now, it is true that sometimes, the Framers chose words which permitted a wider meaning than they intended, but I do not believe that is the case with the ninth amendment - I think some folks want to find unenumerated rights, and so we go looking for them, and anything that even vaguely resembles them. I think that the problem is that people are looking at the ninth amendment with modern eyes, and they are not considering what the problems the framers were trying to remedy were. We look at those words today, and after two hundred years of the constitution in operation, we just can't imagine that a provision that seems to be saying something so patently obvious (in hindsight) could actually mean that, so it must mean something else. But that conclusion is ahistoric, and divorced from the concerns of the time.

BeyonceKnowsBest said...

"The ninth amendment says, just because a right isn't protected by the Federal constitution doesn't mean it can be protected by a state, just as the tenth amendment says, just because a power isn't granted to the general government doesn't mean that it can't be wielded by a state."

You are leaving out 4 words of the 10th amendment, as many states' rights advocates do. The 10th explicitly states that the rights not prohibited by the consititution are retained by the "States, respectively, OR TO THE PEOPLE"

The people have just as much claim to protection of the unenumerated rights as the states do, and I would argue that in areas of rights that affect the individual more than the community, such as consensual sex, right to die, the people have a much more NATURAL RIGHT (yes, the natural rights -- the framers knew about them too). In the debates over whether to include a bill of rights at all, there was no debate as to whether individual liberty amounted to more than the enumerated rights in the constitution, the debate was over whether they even needed to bother enumerating any, fearing the inclusion of some would suggest the exclusion of others. Madison spoke out against such inclusion because of this very fear, but ultimately the Federalists agreed to include them at a later date so that the convention would not fail.

See "Corfield v. Cornyn" for the first invention of the idea that judges cannot protect rights that are not explicity listed in the constitution. There too, there is no debate that these rights exist, however, J. Iredell insists that judicial review, if it exists at all, cannot reach them. This case, however, falls before the cementing of judicial review in "Marbury."

Richard Dolan said...

My problem with Simon's analysis is that it ignores the complicated reality of the history of constitutional adjudication, and instead offers a program rooted in a particular, and highly exclusionary, theory of constitutional values. It's all well and good for Simon to announce that he has found the Rosetta stone to all of these tiresome constitutional arguments. The basic problem is that there are many others out there, each like Ackerman (and Tribe and Dworkin and many others) who thinks his Rosetta stone, along with the social policies that he divines from the Constitution using it, provides a better, surer guide to the true Constitutional values that courts should respect and enforce. Candor and humility (two virtues that Roberts has in abundance) compells the concession that the arguments advanced by Ackerman (and Tribe and Dworkin and ...) are often intellectually powerful. But in the end all of them are uncertain guides for courts engaged in the more practical business of deciding concrete cases. None of those competing theories, including Simon's, deserves to be imposed by the courts on the nation as the one true Church of the Constitution particularly where the issue is whether the Court should displace the particular value/social policy adopted by the political branches in favor of some supposedly Constitutionally mandated value or policy. That is, more or less, where Learned Hand ended up after a long life on the bench, and it strikes me as athe same place where Roberts and the other Bush nominees are likely to head.

Simon evidenty rejects tha view, writing instead, for example, that the Constitution does not permit an unelected judiciary to enforce unenumerated rights against the political branches (state or federal). But the reality is that there is a large body of caselaw where courts have been doing exactly that for decades, albeit in a highly selective manner (often depending on what 5 of them declare to be a "fundamental" right at any given moment). Roberts and the Bush nominees generally (not all of them but certainly most of them) take as the starting point the reality of that history, messy as it is, and all of which defines the "rule of law" that, they say, they will apply rather than their personal views or values, while at the same time recognizing that no particular precedent is every written in stone.

What all of this comes down to is a difference view of the proper role of a self-described conservative judge: whether a judge, devoted to the rule of law, can properly propose to sweep away all of that messy history and the accumulated precedents, and offer in their place his own pure and shining view of what the Constitution "really" enshrines as "true" rule of law. There are times when Thomas writes in that vein, but those are typically the cases where Thomas writes only for himself.

I dobut very much that Roberts, or most of the other Bush appellate nominees, will ever follow Thomas down that path, nor do I think they should. Constitutional purism of that sort is ahistorical (by definition) and thus false to all of our traditions (to say nothing of the basic notion of common law courts developing and creating the "law" on a case by case basis). In place of the respect a conservative normally gives to historically rooted traditions, Thomas offers his version of the Truth. I don't think that approach will ever win many supporters particularly among self described conservatives. Among other failings, it is an approach that is far more likely to end up with another set of judges imposing their own values, in the name of the the "correct" reading of the constitutional text at issue, in place of the values read into the same text by an earlier generation of judges that came at the same issue from a different political/policy slant.

Somehow, that doesn't strike me as progress nor does it sound like anything I would describe as "conservative."

Simon said...

You are leaving out 4 words of the 10th amendment, as many states' rights advocates do. The 10th explicitly states that the rights not prohibited by the consititution are retained by the "States, respectively, OR TO THE PEOPLE"

I said I was summarizing, and my focus therein was on the ninth amendment, not the tenth. I am somewhat hamstring, because I am actually working on a much more substantial essay on this topic, one that is interminably delayed. That not being yet available, I must write afresh. ;) It will not surprise you to know that I have an opinion about the meaning of the tenth amendment as well. ;)

Power is the ability to infringe upon a right.

The source of all power and sovereignty is the right of the people to be governed as they see fit. After the revolutionary war, the people instituted state governments by the mechanism of constitutions - charters which spelled out the functions, structure and limitations of government in their state (limitations in terms of, which rights might not be infringed). The people took from the sum of their rights and granted the states powers.

A few years later, we get the Constitution of the United States. In ratifying that document, the people instituted a government by the familiar mechanism of a charter which spelled out the functions, structure and limitations of the general government; it also placed certain limitations on the scope of powers that could be wielded by the states.

In ratifying the U.S. Constitution, a system where everything that is not delegated is retained, those powers which were not granted to the Federal government, nor withheld from the states, remained unaffected. As an abstract matter, all power ultimately remained reserved to the people. However, the people had already instituted their state governments, and invested them with certain powers. The tenth amendment, properly understood, in my view says this: that the federal constitution does not grant the general government more power than it says it does, and except where it explicitly does so (e.g. Art.I §10), it does not change the arrangement of powers and reserved rights between the people and their states that existed pre-ratification.

Like my reading of the ninth amendment, this reading does NOT render the amendment meaningless. It does, however, mean that what we now take for granted may not have been so obvious prior to the actual practise of the constitution in two centuries in operation. When we read those amendments today, there is a temptation to say "well, duh - federalism, dual sovereignty, blah blah...If THAT was what they were worried about, they had nothing to worry about!". But again, that is an ahistoric reading that forgets the concerns of the time. Whether they were right or wrong to worry about the balance of power between the people, the states and the general government is moot, because they WERE concerned about it. We must discard our lying modern senses, and try to carry ourselves back to the time that the document was framed, to understand the context of the time and the concerns which lead to the passage of the bill of rights.

Simon said...

Richard,
"the social policies that he divines from the Constitution using it, provides a better, surer guide to the true Constitutional values that courts should respect and enforce."

This is not an accurate statement. The point is that the constitution is NOT prescriptive of a certain social policy. It is precisely those who wish to use the constitution as an illegitimate tool to enforce their vision of social policy - Lochner, Roe, Roper and so on - that I criticize!


"the reality is that there is a large body of caselaw where courts have been doing exactly that for decades, albeit in a highly selective manner (often depending on what 5 of them declare to be a 'fundamental' right at any given moment)."

EXACTLY! That's the point - "depending on what 5 of them declare to be a fundamental right at any given moment". Once you get into the doctrine of unenumerated powers, what is the criterion for whether something is a right or not? Historically, it has only ever been one thing: the personal political preferences of the Justices of the Supreme Court. And I reject that as a valid criterion for deciding points of law.

I think you're wrong to suggest that fealty to the text is ahistoric; there have been many times when the court has corrected itself (or been forcibly corrected) when it has drifted too far from the text. See Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke.

Stare decisis, unanchored from text, is no virtue, as Justice Thomas explained just last term in Kelo. When precedent leads to a result which is reasonable against the text, then precedent should control the result. But in no instance should an authoritative line start and finish with precedent, without any basis in text. You must always keep in mind that it is a constitution that is being expounded, and while precedent is a good guide to how expansively one of its provisions should be interpreted, the text always controls - and, if you're an originalist, the original meaning of the text controls.