January 5, 2006

"Revealing the operational content of nominees’ constitutional commitments."

Yale Law Journal's Pocket Part has some legal scholars discussing what sorts of questions the Judiciary Committee should ask Samuel Alito next week. The lead article by Robert Post and Reva Siegel says:
Senators can with confidence and authority ask nominees to explain the grounds on which they would have voted in past decisions of the Supreme Court. Such questions serve the democratic design of the confirmation process by revealing the operational content of nominees’ constitutional commitments.
"Revealing the operational content of nominees’ constitutional commitments"?
Asking nominees to disclose how they would have decided well-known Supreme Court cases prevents nominees from explaining their constitutional commitments in terms of abstract principles like 'liberty' or 'equality,' whose practical significance in particular cases and contested areas of constitutional law is unknown. The goal would be to sustain a colloquy capable of adequately informing a Senatorial vote on whether to invest a nominee with the independent authority to interpret the Constitution.
Well, I would love for the nominee to explain the details of constitutional law like this, to reveal his mind at work. But I find it hard to picture the Senators allowing him the time to lay things out. I can just see them interrupting him and trying to restate things in short, hot-button style so they can get back to their usual preening bloviation. "Sustain a colloquy"? Would they? I mean, assuming the nominee would engage like this, would the Senators keep up their end? I think they'd be frightened out of their depth and would skitter back into the warm shallows of their own self-interest.

Larry Tribe, Erwin Chemerinsky, Randy Barnett, and Steven Lubet have responses.

Nice caricature of Alito at the link, too.


Jacques Cuze said...

"Sustain a colloquy"? Would they? I mean, assuming the nominee would engage like this, would the Senators keep up their end? I think they'd be frightened out of their depth and would skitter back into the warm shallows of their own self-interest.

I think you're half right. (That's still an "F", btw). The way the incentives work, there is no reason for them not to operate out of the most narrow self-interest. That's too bad and has more to do with the way elections and the press currently operate.

Out of their depth though? I think you're too much in love with the title "Judge" (or "Constitutional Law Professor"). And I think your choice of words indicates your real lack of respect for this branch of government.

Do wish you had responded to my questions in the posts below, or even to Roy's question or Atrios' question asked explicitly of you. (I hope it's not too snarky of me to suggest that by not answering Atrios or Roy you are revealing that you are frightened to be out of your depth and just skittering back to the into the warm shallows of your own self-interest.)

Best wishes, I remain,

Henry said...

I'm reminded of the article about Alito's practice sessions.

Remember this quote:

Judge Alito often turned inquiries back on the lawyers who were quizzing him, politely asking them to spell out exactly what they meant, two participants said.

The Pocket Part's legal scholars forget who is doing the questioning.

Randy Barnett touches upon this in his response at the link: [this approach] will be a much more factually complex inquiry than is reasonably expected of nominees (or of senators for that matter)..."

In addition to this fine piece of understatement, Barnett also points the anti-intellectual underpinnings of the approach:

Such an inquiry privileges the status quo...All can be expected to retreat to conventionally popular answers.

Conventional thinking is one of the things I dislike most about politics. It cuts down independent thinkers of all stripes (remember Lani Guinier? Joycelyn Elders?)

One topical example is Adam Cohen's New York Times editorial What About One Person One Vote?. Cohen points out some political and philosophical problems with overturning Baker v. Carr, but his constitutional analysis is vanilla fudge: "Baker v. Carr and Reynolds v. Sims may have been 'activist' rulings, but for the most justifiable reason....

Cohen also forgets that it is Senators doing the question -- the single group of elected officials in the country to whom one person one vote doesn't apply.

Pogo said...

"Sustain a colloquy??"
As if!

Were the Senate actually interested in material that was "capable of adequately informing a Senatorial vote," then maybe, just maybe, this would work.

But Ann's correct about the preference for the shallows. The method serves primarily to permit the only important Democrat question: "Will you vote against abortion? Because I know you will, no matter what you say. La la la, I can't heeear you."

It all ends up being a Roe-fest.

Verification word: yicdito: the automatic repulsion felt when hearing the name of a recent Suprem Court nominee.

PDS said...

The hearings will once again be dominated by hapless toads. And there might be some discussion of CJ Roberts' earlier Commerce Clause decisons as well.

Bruce Hayden said...

I am somewhat cynical here, but I don't see very many of the Senators involved really being at the same intellectual level as Judge Alito. For the most part, not even close. IQ and legal reasoning are not requirements of their jobs, and seem to almost be a detriment.

So, yes, theoretically, some senator may be ask some questions like this that someone on their staff drafted. But understanding the nuances of Alito's answers? Doubtful.

Ann Althouse said...

Quxxo: Who's Roy? Atrios has treated me so unfairly that I don't consider it worth my time to interact with him. You, you try to impose too many assignments on me. No way am I going to get sucked into dealing with everything you ask about. That's what my failure to answer one of your questions means. But as to whether I disrespect Senators, of course I do! They're awful (with rare exceptions). I don't like judges (or anyone else with power) that much either.

Henry: Yeah, it made me think of that too.

Uncle Mikey said...

More to the point, how 'bout them Horns?

Mr. Grey Ghost said...

Unfortunately the hearings will be dominated by the usual diatribes surrounding Roe vs. Wade, so much so that I think it's way past time for the hearings to be done away with altogether. It's all about personal politics now, not about is he/she qualified to do the job.

Der Hahn said...

Your average Senator : "Colloqy?!?, I thought you said 'Soliloquy'."

(verification word - szzlrlpd : the sound made by a person stamping through Midwest winter slush)

Ann Althouse said...

Chris: There's some szzlrlpd in one of the photos on my next post.

Jacques Cuze said...

Roy is Roy of alicublog, which I am not sure of the correct pronunciation, but I pronounce as "I Like Your Blog". He likes your travel sketches (a lot more than your movie reviews.)

But the respected Ted Barlow at Crooked Timber has a question addressed to you in particular. I believe it is a valid and interesting question, (and I ask you not to crib from Orin Kerr's answer.)

But hey, it's your blog, while I wish you would respond to my every question, there really is no demand.

I am confident that while my posts may seem annoying to some, that in the end, by paying attention to them you would become a better, more rounded, person, and with a far more valuable blog to boot. See, it's a win-win!

However, I must confess that I am not such a good person myself, and even though others try to help me to act better, I don't always take them up on it.

And often I figure that your silence is understood by myself and others that you are conceding my points. (Which sadly, is a win-lose for us all.) But I know that you enjoy a bit of conflict in your threads as it helps spice up the blog and drive up traffic. So I recognize that you recognize that you need me. Very zen, don't you think?

Jacques Cuze said...
This comment has been removed by a blog administrator.
Jacques Cuze said...

When I read all you legal beagles saying how "oh senators ain't that smart", "ooh, i've never met alito, but what an intellect!", and "only us smarty lawyers and professors can really understand these issues and nuances", I think:

A) What a bunch of nerds
B) Of Richard Feynman, who said that if you can't explain yourself to a freshman, you don't know shit about what you are talking about
C) What a bunch of elitist bullshit nerds

and speaking of Professor Feynman,

The first principle is that you must not fool yourself and you are the easiest person to fool.
Richard P. Feynman

The idea is to try to give all the information to help others to judge the value of your contribution; not just the information that leads to judgment in one particular direction or another.
Richard P. Feynman

There is one feature I notice that is generally missing in 'cargo cult science'... It's a kind of scientific integrity, a principle of scientific thought that corresponds to a kind of utter honesty — a kind of leaning over backwards... For example, if you're doing an experiment, you should report everything that you think might make it invalid — not only what you think is right about it... Details that could throw doubt on your interpretation must be given, if you know them.
Richard P. Feynman

I know the usual echo chamber in this blog fails these tests. Sadly, I think this blog in general does too.

PDS said...

Hell hath no fury like a commenter scorned.

Jacques Cuze said...

Finally (for the moment), the real reason the conversation and the dialog will fail, is because of the nonsense (supposed started after Bork) in which actual dialogs and conversations may not take place.

The nonsensical argument that if I ask you a question about something, than somehow it binds you to that answer in the future.

What a bunch of anti-enlightenment crap. (And anyone that has been married know the world doesn't work that way.)

If Constitutional Law Professor Bloggers want more of a colloquy than it's time for Constitutional Law Professor Bloggers to loudly and clearly take up their pixels to put this shibboleth to rest.

That would be much more useful and valuable than the mere whining that the members of the committee are too stupid and partisan to ask good questions or understand their answers.

I will take your silence as assent.

Ann Althouse said...

Quxxo: Oh that guy. He's always distorting what I say. He only links to me to say something mean. (And the compliment about the sketches is definitely backhanded. Go back to your drawing.) I can't see the point of engaging with someone who tries to talk to me like that.

Henry said...

Believe it or not, my Dad actually took a class or two from Feynman at Caltech. As you listened to Feynman, he said, subatomic theory would appear clear and simple; later on, on your own, it would all become hopelessly forbidding again.

Though, contrary to myth, Feynman's celebrated recreation of Caltech's physics syllabus left many of the freshmen bewildered even as the classes were infiltrated by graduate students.

* * *

Quxxo, one thing that you forget is that we've all seen the Senators in action.

Ann Althouse said...


1. I agree that Alito is a big nerd.

2. I think Alito could explain law to a freshman.

3. Just because Feynman could explain his theories to a freshman doesn't mean that another person, without his expertise, could have an intelligent dialogue with Feynman about his theories.

4. The Senators lack the motivation to have a serious talk about law, and they probably lack sufficient background in the cases to carry on a colloquy about law with a person who is qualified to sit on the Court. One reason they lack the motivation is that if they tried, they'd look like students, trying to interact with a teacher. Thus, they will lecture the nominee, and the nominee will sit through it.

Jacques Cuze said...

I honestly do not understand how one can enjoy teaching Constitutional Law while simultaneously holding the Congress in contempt, along with most judges. How frustrating that must be for you!

I do understand how your disliking most anyone with power would give rise to your respect for our check on powers, as you mentioned yesterday (or so.)

How do you feel about Sydney Blumenthal and Philip Cooper's statement that: Bush, he wrote, "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress." Moreover, these coups de main not only have overwhelmed the other institutions of government but have taken place almost without notice. "This tour de force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all."

Not coincidentally, the legal author of this presidential strategy for accreting power was none other than the young Samuel Alito, in 1986 deputy assistant attorney general in the Justice Department's Office of Legal Counsel. Alito's view on unfettered executive power, many close observers believe, was decisive in Bush's nomination of him to the Supreme Court.

Jacques Cuze said...

3. Just because Feynman could explain his theories to a freshman doesn't mean that another person, without his expertise, could have an intelligent dialogue with Feynman about his theories.

So to have an intelligent dialogue with an intellectual genius like Alito, you would need to be Alito, or Roberts, or Thomas.

I guess Ann, that I am surprised that you do not think that you could have an intelligent dialogue with Alito.

But perhaps you think you are Alito's intellectual equal and that you can. I agree! I think you could.

But I am certain that none of your students are up to that level. Sad, that not even your best students could have an intelligent dialogue with Alito. How sad for Sam! How sad for your law students.

Oh! Wait you say, you think that many of your best law students, even though they do not have the experience of Sam but just having had you for a semester or two, could in fact have an intelligent conversation with Sam! I am relieved to hear that.

But again, I am saddened, that Bruce Hayden, who is only a patent lawyer, could not have an intelligent conversation with Sam. Sorry Bruce, you would probably be happier speaking to other patent lawyers anyway.

Ya know Ann, I think you would agree you are not being fair to Bruce. I bet that Bruce could have an intelligent conversation with Sam. But I see you smiling as you know where I am going with this.

Yep, poor Sam! Never to be able to enjoy an intelligent conversation with Sloanasaurus! Sorry Sloany, Ann just doesn't think you're up to par.

Ann, my guess is that Sam must live without being able to have intelligent conversations with the best high school students, or even very perceptive middle school students. Very sad.

Anyway Palladian, don't feel bad that you would never be able to understand the nuances of Sam. There are many people without his expertise.

Steve Hawking, now there's another bum that without Ann's or Bruce's expertise just could not have an intelligent conversation with Alito.

Max Delbrueck, Jeff Bezos, Robert Ballard, Bill Gates, Warren Buffett, George Soros, Oprah Winfrey, Matt Groening, no intelligent conversation with Uncle Sam for you!

Nope, you really need to be a big time lawyer to understand the issues of our Constitution. I say $600 per hour big time lawyer at the least.

Which is why it's so funny watching the immigrants fail their tests when we ask them questions about the constitution.

Yep, this is a country founded on the proposition that all men are created unequal.

Jacques Cuze said...

James Watson and Francis Crick
With Sam Alito
Cannot converse together.

We are lost as a nation
congruency sets
false karass and wampeters

Kirk Parker said...


Your later comments get into mere incomprehensibility (at least to me), but right up front you say:

"And I think your choice of words indicates your real lack of respect for this branch of government."

In order for Senators to have respect, shouldn't they be, uhh, you know, respectable?

Who would you suggest qualifies? McCain? What's-his-name from Alaska? Or (to give the D's equal disrespect) the two sorry excuses for Senators from my state, Murray and Cantwell? Honestly, I could grab the first two people I met at random on the streets of downtown Seattle at lunchtime, and be virtually certain that they'd be more competent than those two clowns. Sheesh.

Word verification: ndqxffz. The strangling sound a sentient being makes upon hearing Patty Murray claim that Osama bin Laden ran day care centers.

Pogo said...
This comment has been removed by a blog administrator.
Pogo said...

Quxxo is attempting to modify the argument here. But despite his claim, pointing out technical deficiencies in legal theory amongst Senators is not equivalent to elitism.

Most Senators are average mental schmoes who confuse their alpha male credentials with actual knowledge, but that doesn't make them legal wonks. Simply watching the last hearings with Roberts was enough to convince me that these guys were poseurs all, and should have been embarrassed to try to outwit the SCOTUS aspirant with their keen legal minds.

While I know a few things about medicine, I'd be unable to carry on a conversation with Hawking on string theory, or Buffett on buying companies, or Gates on software, or Crick on DNA, because I lack the expertise (and because, God rest his soul, Crick died in 2004).

Yes, they can 'splain the basics to me, like a parent might patiently tell a child why he must eat his asparagus, but that don't make me their equal.

In the court of law, and in the hereafter, we are equal. Nowhere else, quxxo.

Word verification: tkfaptsr: the vague feeling of guilt versus self-justifying rationalization while downloading illegally, only to realize the file is corrupt.

Ann Althouse said...

I do think that some of the senators on the committee, notably Russ Feingold, could have a deep conversation about legal interpretation -- if they wanted to. And there is a way of talking about law that is effective even when you are mentally outclassed, as Senator Biden proved for all time at the Bork hearings.

Ann Althouse said...

Basically, Quxxo is arguing against a caricature of what I said. And writing such long comments, too. I don't get the point of that. We'd be more likely to read what you wrote if you made it a lot shorter. I can see why you like Senators! You imagine that running on at length is convincing. It's not.

Jacques Cuze said...

What I was trying to do was unroll a proof by induction.... And to show fallacy in your argument through reductio ad absurdum

To summarize, I tossed in a bit of haiku.

(Perhaps you are right after all and unable to engage in intelligent conversation in any domain where you lack the expertise. But I still think much better of you than that!)

Regardless of the long posts, I have also posted here a question specifically addressed to you from the respected Ted Barlow of Crooked Timber, as well as some juicy material about separation of powers from Sydney Blumenthal. I do wish you were a serious defender of your positions.

Henry said...

Qxxxo -- Who needs a proof by induction when we have proof by fact? Remember, we've all seen these guys on television. We don't need to induce what our Senators are capable of. We already know by observation.

In other words, your induction doesn't pass the o-ring in ice water test. You need a new theory.

Also, if the respected Ted Barlow of Crooked Timber cares so deeply about getting Ann's attention, could he not compose his own love letters himself?

Ann Althouse said...

Re Crooked Timber: I've been very unimpressed by them. I'm not going to spend my life trying to get people who've distorted things I've said to get it straight. I've wasted way too much time on that sort of thing and have learned to be selective about who to engage with. They need to earn MY respect, not just yours. You like them, because you like what they say. I dislike them, not because they disagree with me, but because they have been nasty and unfair to me.

Jacques Cuze said...

Fair enough, though I do disagree. I was just about to respond to Henry, but instead I will "repurpose" my post (I really dislike the use of "repurpose" in this manner.)

Ted did write to her through email, but apparently she hasn't responded.

I am not saying that she needs to either. Apparently in the blogosphere it's perfectly acceptable to ignore commenters, but not to ignore other bloggers. I don't agree with either position, mainly because most of us have real jobs and real families and real constraints on our time. But my understanding of Crooked Timber is that it is one of those relatively agreed on fair blogs with gravitas that I thought I should point it out to Professor Althouse.

Henry, had you read and understood, then you would know my proof had nothing to do with senators and much more to do with what I said it had to do with, point 3 of Ann's response, paraphrased as "does one need domain expertise to have an intelligent conversation?" It's really pretty unimportant, but I suspect from my reading that Feynman would disagree with that as well as most educators, lawyers, and engineers. I strongly suspect that Ann disagrees with it too.

Cold Pillow said...

I don't really see how Crooked Timber distorted what you said. At the very least you could clarify for your own sake since it seems to be such a point of contention.

I also think it's kind of ironic that you would criticize other bloggers for being unfair and distorting your words. Your accusations leveled at Atrios commenters were completely unfair and thoroughly debunked yet you refused to even address your mistake.

I'm sure I'm being unfair in some way that will warrant a non-response but your willingness to throw something out there and then run away from it definitely gets to me.

Henry said...

Quxxxo -- Sorry, I thought your point had something to do with the original topic.

Ann Althouse said...

Cold Pillow: See the new post I did. It's linked in the update to this post. And yes, I do assert that Ted has badly distorted my writing. He's a big partisan. It's tedious to respond to him, but I did it anyway, because I found it somewhat amusing.

Ann Althouse said...

Cold Pillow: I stand by my criticism of the commenters at Atrios. The standards of what it means to care about sexism today are pathetically low, and the narcissistic commenters whose feelings I hurt totally deserved it. Let them come and apologize to me instead of prolonging their narcissistic snit. They never took the trouble to understand my writings. They just slammed me because they see everything in partisan terms. I'm still thoroughly disgusted with them.

ffakr said...

I see an interesting and inevitable end to the line of reasoning proposed by Ms Althouse.

If the bulk of the Senate is not sufficiently intelligent or trained to properly ascertain the qualification of Judge Alito that would pose two very interesting and frightening logical conclusions.

1) The 3 party system established by the constitution is deeply and irreversably flawed and the Constitution should be destroyed. This sounds like rhetorical flourish but if it is obvious and predictable that our Senators [and Representatives] will end up, in large degree, being incompetent especially in matters of the law then our nation has no future.
Congress drafts law in accordance with the framework of the Constituion and our cumulative history of Legal precident. They are also tasked by the Constituion to provide advice and concent to the Administration.
If we accept that Congress will always be full of people who can't be expected to understand our constitution or legal matters in general then we are truely doomed.
I'm not holding up Congress-people as intellectual heros, just expanding on the arguments here.. bringing them to their logical extensions.

2) Since all Supreme Court appointments have passed the Advice and Consent of the Senate and the Senate is incapable of providing adequate or informed advice on the qualifications of Supreme Court Judges, it is obvious that we can not trust the findings of ANY Supreme Court. We can not trust the Senate to evaluate justices properly, therefore we can not trust the qualifications of those justices, therefore we can not trust their body of work, therefore our entire body of caselaw is worthless.
Anarchy, Nilism.

My final comment doesn't fit directly into the framework of my main question (it really was a question, as in how do you respond) so I'll try and be brief.

If we can not trust the qualifications of the Senators, either in legal experience or in legal understanding or in basic intellect or in motivation..
How do we trust the intelligence, motivation, legal experience and understanding of the man who nominates a Supreme Court justice?
I imagine this question is especially pertinent after the nomination of Harriet Meyers.
So far, it seems to me that the only 'strength' of Judge Alito that Mr. Bush is capable of properly appreciating is his history of advocating the increase of power in the Administrative branch.