Hugh Hewitt, who likes a lot of my
"Mellowing on Miers" post, has a problem with my observation that Bush is failing to meet his campaign promise to appoint justices in the mold of Scalia and Thomas.
He writes:
When Bush said "like Scalia or Thomas" many people heard many things. I think it is very safe to say that the vast majority of American voters did not hear [as Althouse puts it] "justices committed to a particular theory...of textualism or originalism." I think they heard "justices who aren't making stuff up," or "justices who aren't full of themselves," or "justices who will not impose same sex marriage or overturn every juvenille death penalty in the land or import EEC law on a whim."
I think they heard "results," and if I am right, Bush has not only not broken his promise, he may be well on his way to fulfilling it twice and hopefully more times over.
Stephen Bainbridge then takes issue with Hewitt. He quotes a 1999 "Meet the Press" interview with Bush, where he says that in looking for a Supreme Court justice "the most important view I want to know is are you a strict constructionist ....Will you strictly interpret the Constitution or will you use your bench as a way to legislate? ... will they strictly interpret the Constitution of the United States?" Bainbridge observes:
Contrary to what Hugh claims, there is no doubt in my mind that Bush expressly stated an intent to apply a litmus test - namely whether or not the nominee was committed to what Hugh calls a "committed to a particular theory"; namely, strict construction. In turn, strict construction is defined as:
... interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes.
In other words, a justice "committed to a particular theory" of strict construction would be an originalist or textualist.
Bush said he would appoint strict constructionists. That is the promise he made and the fire to which his feet should be held.
There's a funny thing about the way Bush kept saying he wanted someone like Justice Scalia and his repeated use of the term "strict constructionist": Scalia doesn't purport to be a "strict constructionist." Indeed, he goes out of his way to reject the term. Here's an excerpt from my notes on a speech Justice Scalia gave here at the UW Law School on March 15, 2001.
“What do we think we’re doing when we are interpreting the Constitution? … What is the object?”
“My school of thought is very much in the minority”— originalism, but it used to be orthodoxy: everyone believed it until 40 years ago.
people were not necessarily honest about how they did their originalism then, but they all professed to believe in it. There were “willful judges” then as there are now.
“They used to do it the honest way: they lied about it.”
The change is: people today don’t feel it’s “necessary to lie about it anymore.”
he prefers the old way, even with the lying: “hypocrisy is the beginning of virtue.”
the change has occurred very rapidly.
The 19th amendment, adopted in 1920: if they’d have thought like the majority thinks today, they wouldn’t have bothered amending the Constitution: they’d just have used the Equal Protection clause.
Nonoriginalists tout the “living Constitution.” For example, they’d find the death penalty violates “cruel and unusual punishment.” They want the Constitution to reflect the “evolving standards of a maturing society.” Scalia scoffs at the notion of a “maturing society”: it assumes that “every day in every way it’s getting better and better.” It’s “pollyannaish.” The Framers were concerned that future generations would do bad things: that’s why they adopted the Bill of Rights.
Here are the ways in which the notion of the living Constitution is defended:
It’s flexible.
“The Constitution is not an organism.” It doesn’t need flexibility in order to work: it won’t become brittle and break.
but it is not flexible to make more choices off-limits to democratic preference by identifying more rights.
it makes the Supreme Court the sole possessor of the power to change it: how is that flexible? “It is rigidity.”
[he fails to note that a right reserves decisionmaking for the individual: rights-making changes who gets the flexibility. You could end up with more flexibility even though you leave less flexibility to the legislature. Also fails to note how constitutional line-drawing may be about which democratic process gets more room to choose: state/federal.]
It’s good for liberals.
living Constitution vs. originalism is not about liberals vs. conservatives: “Conservatives distort the Constitution for their ends just as willingly as liberals.”
Consider the day the court came out with Romer v. Evans (which he called Romer v. Colorado) and BMW v. Gore (where he, amusingly, refrained from saying the respondent’s name). Romer produced a result liberals like and BMW produced a result that conservatives like. In both cases, people thought “it’s terrible so it must be unconstitutional. And the Court agreed.”
“I say a pox on both their houses.”
“This is an equal opportunity fallacy.”
It will lead to more freedom.
why is that even a good idea? maximum freedom is anarchy. You should want the right balance between freedom and order.
but why do people think the living constitution will lead to more freedom? it “will lead to what the current society wants.”
example: confrontation case with sexually abused child testifying over closed circuit TV. The living Constitution produced a restriction of rights but originalism would have protected the rights of the accused.
example: Apprendi, originalism led Scalia and Thomas to vote with those who protect the rights of the accused
It will make you happier.
living Constitution folks can always feel good because they always make the Constitution mean what they think it should mean. They can say after a day’s work that they feel great because they discover once again that the “Constitution means exactly what I thought it meant.”
the originalist comes home and feels bad. Scalia doesn’t like bearded, sandal wearing flag burners, but he had to vote on their side because he takes the first amendment seriously and a statute targeting flag burning (as opposed to burning anything—trash, leaves, etc.) is against speech. His hands were tied. “My philosophy ties my hands.” When he went to breakfast after deciding that case, his wife was scrambling eggs and humming the “Stars and Stripes Forever.” She’s more conservative than he is. He had to feel bad about the decision.
In this regard, he noted that he is not a “strict constructionist.” “I never say that.” He interprets the Constitution “reasonably.” To be a strict constructionist, you’d have to say that Congress could censor handwritten letters (they aren’t “speech” or “press”).
[I can’t help thinking that his originalism does make him feel good: the comfort of saying any sad effects are beyond my control, the satisfaction of feeling that I am the one who adheres to principle.]
So, in a sense, Bush didn't know what he was talking about when he pointed as Scalia as his model for a judge. "Strict constructionist" is more of a politician's term. Nixon used it pointedly. Who has the better of the argument, then, Hewitt or Bainbridge?
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28 comments:
I think its fair to say that Bush meant to appoint judges who would vote with the conservatives on the court and not with the liberals.
I think the following sums up the differences: The liberals on the court generally want to change our society through the court. So they do things like make up laws, ban the ten commandments, etc... The Conservatives on the court do not want to change our society through the court so they oppose making up new laws etc...
Bush wants someone who will not move to change our society through the courts, and that should include striking down recent Court rulings that attempted to do this (i.e. Roe V. Wade)
Thus, is Harriet Miers one who will vote with the conservatives and not with the liberals. This is what Bush promised.
I am not sure if this is what Althouse wants.
Ann,
The President's misconception of strict constructionism, while a common one, argues very much against the Mier's nomination, for to know with confidence what flavor of originalist she might be would require a fairly extensive paper trail--one she doesn't have.
Scalia reasonably argues that textual meaning derives from authorial intent. Most of us agree, Jacques Derrida aside. Scalia admits reasonable context. Most of us do, too. But how much context is admissable? What habits of mind will the interpreter bring to the text? What are the interpreters biases developed over a life time? The answers are never certain, but the best evidence results from a careful reading of the interpreter's work over years.
The other thing about this pick is Miers isn't likely to be seduced into the liberal-DC-super elite. I mean who a person is when they're chosen can and has changed. Absolute power and all that. Miers, like Thomas, will be immune because the Washington liberal-super-elite won't have her.
From my blog:
The Volokh then calls Hugh a hypocrite and blah blah blah and ends with:
"It's easy to repeat platitudes about how a judge won't "legislate from the bench" or will just "follow the Constitution." But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.
To be fair, I agree with Hugh that Supreme Court Justices don't need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum."
Which is correct except for the last two sentences, which are crap. All those brilliant and experienced judges on the supreme court seem to be missing that self-awareness and humility, except CLARENCE THOMAS, who became a judge for the first time in 1990, and was nominated to the Supreme Court in 1991.
Self-awareness and humility may be important, but more important is an ability to resist the wiles of the Washington liberal-super-elite. Miers, like Thomas, will be immune because the Washington liberal-super-elite won't have her.
So good on ya' Bush.
I think Mr. Hewitt is debating the meaning of the word "is."
Hugh just referred to you as "Uber-blogger" during his opening monologue on his show. Too bad he didn't mention your url.
Circle the day on the calendar.
Sloanasaurus and I agree on something.
He wants Miers because she will vote conservative (and I agree she will, in general).
I want Miers because she will apply her sense of reasoning to issues, and not just be a knee-jerk vote for the right.
In this regard, Mr. Hewitt is closer to the truth.
I acknowledge, as a liberal, that Ms. Miers, due to her conservative philosophy, will most often be on the other side of most issues (thereby leaving the Supreme Court perfectly balanced around Anthony Kennedy). At the same time, I don't expect anyone other than a conservative to be nominated by George W. Bush, and in that context, I would much prefer a Harriet Miers, who my gut reaction tells me is at least sometimes persuadable, than a Michael Luttig, who is not (and while we are on the subject of strict constructionists, how would the founding fathers view Judge Luttig's recent ruling to allow the government to hold U.S. citizen Jose Padilla indefinitely without any charges?
I think, if I listen very carefully, I hear a noise that sounds like Thomas Jefferson spinning in his grave.
As a layperson I have to say that this is the first time I have encountered a distinction between strict constructionism and originalism. Does anyone claim to be a strict constructionist in the manner that Scalia defines it? It doesn't seem to me that the answer would be yes. It's as if Scalia is in fact rejecting the term on accuracy grounds, not because he is distancing himself from a class of interpretation that is actually employed in practice.
Basically, I agree with sloanasaurus. I think Hugh has the better of the argument.
Before I started reading here, I really didn't know all the differences between strict constructionist, originalist, or the rest. A strict constructionist to me was someone like sloanasaurus described; one who wasn't going to legislate from the bench and that would be a category I would place Scalia and Thomas.
mcg... There was a case two terms ago Groh v. Ramirez (?) I believe where Thomas, in a dissent on this 4th Amendment case, fiddles around with the language of the 4th A. and discusses whether even a warrant is required by the 4th since it is in a sort of addendum separate clause, etc.
But Thomas is not an "originalist" like that always. He and Scalia are cousins, but they don't see eye to eye on all the issues because they have similar principles, but not the same brain.
Sort of like "fundamentalist". Religiously many Christians are fundamentalist in that they believe (and politically liberal)-- the fundamentals of Christianity -- divinity of Christ, death, resurrection, etc. but that term is so loaded now who needs that?
Here's the Groh case. I think the link takes you directly to the dissent. The discussion is more in depth than I had recalled. Scalia had joined this dissent too. Rehnquist joined in the last part.
And even in Groh THomas is more textualist
Ann:
So, in a sense, Bush didn't know what he was talking about when he pointed as Scalia as his model for a judge.
Bingo!
I really do believe that a lot of the people who lionize Antonin Scalia know even less about him and his jurisprudence than a lot of the liberals who try to make him out as some ghoul from the darkest recesses of the night. These are people who have self-evidently never even read one of his opinions until that Kevin Ring book came out. I remember back a few months ago having an argument with a guy on a GOP blog, and he suddenly claimed that he was a "Scalia-style originalist." I gave him specific case citations in which Scalia had argued precisely the opposite of what this guy was contending, and he disappeared!
I think it's tru to say that there is a large number of liberals who would defend Roe to the death who have never even READ the case, and I think there are a lot of conservatives who cheer Scalia who have no idea what the man stands for. I really think it may simply be the case that Bush looks at Scalia and sees only a conservative, Christian Judge, and nothing more.
By the way, regarding the Scalia speech that Ann quotes from her notes of? You can find a full transcription of that speech here:
http://www.joink.com/homes/users/ninoville/ww3-14-05.asp
The money quote is:
"I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted."
Ruth Anne: People don't need the URL. If they just spell my last name right, they can get here more easily by Googling. I'd like to hear that show!
MCG: The point is that Scalia wants to be seen as accurate, not stingy. In this view, he's not narrowing amything, he's saying exactly what size things really are. a
Simon: That transcript is scarcely the same speech. The one I attended was in March of 2001. You linked to a speech from this past March. However, I do think he goes around giving approximately the same speech. He did not rely on a text or ever notes. And the speech was not recorded as far as I know. It took place at my law school.
Ann- you're right, it's a different speech, but as you point out, Scalia's main stump speech has changed about as much as an Aerosmith setlist in the last decade. If you compare the speech at CUA on the same site, you can see that he makes many of the same points there.
Not that there's anything wrong with this, I hasten to add. He is out to make converts, not to collect paycheques, and I suspect he has merley deemed this speech to be the most effective way to accomplish this, and I would drive a fw hundred miles to see the same speech live. ;)
Simon: I just want to establish that my notes report a unique event, but the fact that he says it all the time underscores my basic point: he's not, to his own mind, a strict constructionist.
The puzzle is: what did Bush promise? (Maybe we need an interpretive theory to answer that question!)
I am not so sure if Bush thinks Roberts is like Scalia or Thomas. I think Bush just liked Roberts and he had the credentials. Everyone liked Roberts. he is one of those who is great at everything.
I think Bush is generally anti-intellectual and probably thinks most of the judges he interviewed are freaks and doesn't trust any of them to have any common sense regarding the Constitution.
I think Bush wanted to appoint someone like Davy Crockett, but, Crockett is dead and is not a woman The next best thing, Bush thought, is to appoint himself...but that was also not posssible. So he appointed the next best thing... his trusted lawyer Harriet Miers.
Sloan:
Everyone liked Roberts.
Nearly everyone, my friend. :p
I do think you raise a good point about anti-intellectualism, and I think there is a good essay waiting to be written about how this nomination is the GOP being consumed by the monster that it, itself spawned: somewhere along the line, hostility to liberal intellectuals morphed into a crude anti-intellectualism and an opposition to the power and grandeur of reason.
Or, to put it into Andrew Sullivan's terms, this could have been a collision between conservatives of doubt and conservatives of faith. I think it is, but not in the way that Sullivan's article suggested. It is, in the sense that this is a faith-based nomination, for which the only reason anyone has offered for supporting is indeed faith in the President. But Sullivan, I think, intended to use those terms to highlight the differences between intellectual conservatives (the legal conservatives, the neocons and so on) and, to be crude, "the base" - the social conservatives, and if that is the dichotomy, this is less of a collision of worlds. It seems to me that many social conservatives are just as outraged as the legal conservatives - albeit for different reasons. The reason-based conservatives oppose Miers because they doubt she has the intellectual heft or the commitment to originalism, but many social conservatives also oppose her - not because they care about the finer points of the difference between strict construction, originalism and conservative judicial activism (the latter of the three being what I suspect many of them quietly want, as evidenced by the Schaivo episode), but because they simply don't believe she's a conservative.
For today's purposes, the enemy of my enemy is my friend.
The problem with your comments Simon is that I have yet to hear a non-intellectual type say they are opposed to Miers. Every non-intellectual type I know (who are conservatives) say things such as "she seems like a nice lady" or has a "good heart" the same stuff Bush is saying about her.
The one thing us intellectual types often forget, is that the United States is at is core an "unintellectual" nation. The virtues we celebrate in this country are all un-intellectual (i.e. hard work, self made, the pioneers, a fair fight, bravery). Go to Europe, and things are different.
I think it was De Tocqueville who firt noted the "anti-intellectualism" of America today. It still exists.
Being anti-cultural "elite" doesn't make one anti-intllectual. That's akin to saying just because I think Jesse Jackson is a slimeball makes me a racist. I daresay that James Dobson has more education and clinical experience than anyone on this blog including the blogger. And oh by the way he happens to believe in the Bible as the word of God -- something he has in common with Isaac Newton, Blaise Pascal, St. Augustine, CS Lewis, Tolien, Eliot and many others who are hardly non-intellectuals.
Richard Land and many (used to be most -- I'm not sure of the numbers since the mid-90s) Southern Baptist ministers have their doctorates from a gagle of very fine and rigorous -- moreso than many other PhD programs.
If you think they're wrong that's fine, but let's be clear before slurring the agenda of someone. Many intellectuals see the need to be grounded in the "here and now" (Aristotle anyone?) in addition to having the ability to see the big picture and the abstraction. Yes, much of the base is non-intellectual and anti-intellectual as much as they feel the condescension that is often felt -- either rightly or wrongly. Many social conservatives, however are intellectuals or at least thoughtful and "self-aware" people and have arrived at their positions by reason -- not just "emotion" or the "Holy Spirit".
btw I realize education is not the end all be all of intellectualism, but it seems to count with some folks.
I have yet to hear a non-intellectual type say they are opposed to Miers.
Even if that's true, it's like saying that you've yet to find a non-pilot who objects to cutting pilot's wages. The Supreme Court is the pinnacle of America's legal system; if elitism means wanting the best person to fill a vacancy on that incredibly select bench, then I'm being elistist about this.
I have heard people opposed to Miers on the grounds of simply not beliving her conservative credentials. David Souter hurt social conservatives at least as much as as he hurt people in the academic world, and they haven't forgotten. They don't understand - and frankly, I think they're right - why on Earth Bush would give a stealth nominee, given the disastrous history of stealth nominees for the GOP (as Ann has pointed out, Thomas was far less of a stealth nominee than pro-Miers folks have suggested).
I think she's probably a nice lady, probably a good Christian person. She has probably worked very hard to attain her recorded career. None of which is especially relevant, though, to the Supreme Court. It's nice, and if people have those qualifications AS WELL AS relevant ones, then great. But it's ephemera, and the only reason it's being focussed on is because there is NOTHING ELSE to focus on. We are still, at root, being asked to trust Bush. It still doesn't fly.
"...The Supreme Court is the pinnacle of America's legal system; if elitism means wanting the best person to fill a vacancy on that incredibly select bench, then I'm being elistist about this...."
Yes, but Bush would say that the "best person" is not the intellectual powerhouse legal mind, i.e. smartest person available. He thinks the best person someone with different qualities. I am not saying I agree with this, but there are good "intellectual" arguments to support Bush's position. Foremost is the argument that a less intellectual person has more common sense than a more intellectual person. Frankly there are not a lot of people with common sense on the Supreme Court.
No Love for Frank-
The question I would ask then is this....what explicitly are the relevant criteria? Point by point, what are the explicit and defined criteria necessary to be a valid nomination to the Supreme Court.
I don't really like the use of the term "valid" in that context; the only criterion that a candidate must have to be "valid" is to meet those that the Constitution requires. The criterion for expediency and appropriateness, on the other hand, are rather different.
While I realize that this isn't a test that has really been used in the past, what I would like is a paper trail of academic writings or judicial opinions that show that the nominee approaches statutes using textualism and plain meaning, and that the nominee approaches the constitution looking to apply a reasonable construction to the constitution, permissable under the plain meaning of the document as the original meaning of its language suggests and permits. Of relevance are neither the Framers' intent, nor any "evolving standards of decency" which have not yet evolved to the point that the constitution has been amended legitimately. They should have a fully-formed judicial theory that takes the foregoing into account and can integrate stare decisis into that theory in such a way that the doctrine has teeth but cannot trump text. Obviously, it helps if they have a brilliant grasp of the law (Roberts), but it isn't necessary; it also helps if they are pithy in writing and direct & blunt at oral arguments (Scalia); a definite plus is collegiality and being affable of personality (Rehnquist).
What is most important, though, is the demonstrable commitment to the notion that the people are sovereign, not the courts, and that the courts should apply the law as it is written, even when they think the law is asinine. I think there is room for intellectual diversity on the Supreme Court; there is not one single right way to do the things I suggested above, as evidenced by the fact that Scalia and Thomas do not always vote the same way.
Lest someone point out the obvious, it is perfectly possible that this demand would have precluded me from supporting Justice Thomas' nomination at the time, and that would indeed be regrettable. However, this is a fallacy, in the sense that it suggests that the logic is faulty because it would not produce a specific, desirable result. It might have precluded Thomas, but it would have precluded Ginsburg and Breyer, for example.
Your whole remise is wrong from the start. you and others on this board obviously don't understand constructionism. Don't be insulted. I didn't either until much research both on the internet and in Blacks Law Dictionary, which is used in law schools cross the country.
When the Senate conducts hearings to confirm judicial appointments, there should be no controversy over "strict construction," "liberal construction," "original intent," "living document," etc." Consider the plain wording of the Constitution:
THE UNITED STATES CONSTITUTION: Article. VI.
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
To me, it seems very simple. The Constitution, by its terms, and by the oath required of all office holders (including judges) is the "supreme law of the land," and is unquestionably binding on the judiciary. The Constitution contains its own rules of construction, which are also binding on the judiciary:
1. The list of rights enumerated in the Constitution is not to be construed as a complete list.
2. The list of powers delegated to the federal government is a complete list.
In other words, it's not a matter of personal choice. All judges are bound by oath to use liberal construction with respect to our rights, and strict construction when it comes to the government's powers. Anyone appointed to the judiciary should readily agree with this, or he's unqualified to hold office.
Your opening premise shows a lack of knowledge concerning the term constructionism. I am aware of Scalia's satements about originalism. You, and the majority of people on this board aren't aware of the definition of constructionism. I wasn't either until I looked it up in Blacks Law Dictionary (usd as the no.1 law dictionary throughout our law schools nationwide) and researched it on the web.
"When the Senate conducts hearings to confirm judicial appointments, there should be no controversy over "strict construction," "liberal construction," "original intent," "living document," etc." Consider the plain wording of the Constitution:
THE UNITED STATES CONSTITUTION: Article. VI.
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
To me, it seems very simple. The Constitution, by its terms, and by the oath required of all office holders (including judges) is the "supreme law of the land," and is unquestionably binding on the judiciary. The Constitution contains its own rules of construction, which are also binding on the judiciary:
1. The list of rights enumerated in the Constitution is not to be construed as a complete list.
2. The list of powers delegated to the federal government is a complete list.
In other words, it's not a matter of personal choice. All judges are bound by oath to use liberal construction with respect to our rights, and strict construction when it comes to the government's powers. Anyone appointed to the judiciary should readily agree with this, or he's unqualified to hold office."
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