Thursday, October 20, 2005

Judicial nominations and ideology

Just saw Sen. Sam Brownback (R-Kansas), one of the leading social/religious conservatives in Congress, on Fox News' Special Report with Brit Hume, on the subject of Harriet Miers. He says he's still undecided on whether he'll vote to confirm her. When asked by Hume whether the issue was Miers's lack of intellectual heft or her judicial philosophy, Brownback said, without hesitation, that it was the latter. He is not certain that Miers is a constitutional originalist; he wants to know how she would rule on abortion and same-sex marriage issues, whether she regards Roe v. Wade as binding precedent, and whether she believes there is a constitutional "right to privacy" in sexual matters as first articulated in Griswold.

Haven't conservatives, in the past, assailed Democrats for denying confirmation to judicial nominess on the basis of political and judicial ideology? Haven't they argued that ideology should play no role in judicial confirmation, and that the president should be free to appoint judges based on his own judgment and his own preferences, with excellence the only criterion? (And haven't liberals taken the position that judicial ideology matters?) Haven't conservatives been particularly angered by the Democrats' attempts to find out how Bush nominees will vote on particular issues, decrying such questions as illegitimate?

Or do these standards only apply as long as the nominee is believed to subscribe to conservative ideology?

Update: On the other hand, I agree with John Cole: this is embarrassing.

The Supreme Court nomination of Harriet E. Miers suffered another setback on Wednesday when the Republican and Democratic leaders of the Senate Judiciary Committee asked her to resubmit parts of her judicial questionnaire, saying various members had found her responses "inadequate," "insufficient" and "insulting."

Senators Arlen Specter of Pennsylvania, the committee chairman, and Patrick J. Leahy of Vermont, the senior Democrat, sent Ms. Miers a letter faulting what they called incomplete responses about her legal career, her work in the White House, her potential conflicts on cases involving the administration and the suspension of her license by the District of Columbia Bar.



Ouch.

9 comments:

angry young man said...

On philosophical tests for judiciary, as they say anagrammically, IOKIYAR

Rainsborough said...

Byron York reports that Meiers' visits to Senators are going so badly they're being cut back.
At first it seemed that Meiers was smart enough but just not conversant with constitutional issues. Now it seems she mayn't be smart enough either.
Brownback should realize that if she's as weakminded as she seems, her clerks and her colleagues will whipsaw her and her performance on the court will prove to be unpredictable. He has to want both strongminded and solidly conservative. (And as Young remarks, in all decency will have to drop his supposed disapproval of applying ideological tests.)

Rainsborough said...

Did the president perhaps make this decision pretty much by himself, and mistake adulation for intelligence?

William R. Barker said...

Posting ex cathedra... (*GRIN*)

I think Bob Bork said it very well in his Wednesday WSJ op-ed:

"There is, to say the least, a heavy presumption that Ms. Miers, through undoubtedly possessed of many sterling qualitites, is not qualified to be on the Supreme Court."


"...the quality of her thought and writing demosntrates absolutely no 'ability to write clearly and argue incisively.'"

"Only a commitment to originalism provides a solid foundation for constitutional adjudication."

"For the past 20 years conservatives have been articularing the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials - debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like - the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply the priciples to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges."

Well... speaking for me, myself, and I... that's pretty much game, set, match.

How anyone could disagree with Bork and the tenents of originalism is beyond me. It's just plain common sense! It's LOGICAL sense!

If you don't like a part of the Constitution as written... our constitutional safety valve is the AMENDMENT PROCESS... not the doctrine of judicial infallibility.

Rainsborough said...

Mr. Barker:
1. Roberts doesn't satisfy Bork's criterion. He's not a sufficiently rigorous orginalist.
2. Some of the Founders repudiated Bork's criterion, by allowing that later generations might interpret constitutional principles differently than did they.
3. Odd that democratic legitimacy would depend upon a judicial philosophy that requires the wholesale overruling of judicial fiat of decisions taken by elected officials.

William R. Barker said...

My Dear Rainsborough,

Concerning Chief Justice Roberts... you may well be right. Time will tell. This however has nothing whatsoever to do with my seconding Judge Bork's sentiments as expressed in his Wednesday WSJ op-ed.

As to your comment concerning "some of the Founders," no one ever said that the INDIVIDUAL Founders were all of one mind. The Constitution was a compromise. What it "means" in each and every specific instance is of course debateable. That said, the only honorable and logical terms of debate that I see as legitimate start and end with the thesis that we try our best to be faithful to the text and intent of the Founders as best we discern it and should successive generations decide in AMENDING the document to "better fit with evolving standards," then work for AMENDMENTS.

Finally... as to your third point... what is that point again? (*SMILE*) Seriously... I'm not quite sure what point it is that you're trying to make. Could you please clarify?

P.S. - A key Constitutional debate I'd just LOVE to see take place between the greatest American legal minds of our time would be whether Judicial Review itself is legitimate from a origionalist perspective. I'm not so sure it is... but I'm probably in the minority there. (*SMILE*)

P.P.S. - Please... call me Bill! (*GRIN*)

P.P.P.S. - The other great constitutional issue that I'd like to see our great American legal scholars debate is the question: Did the South have a constitutional "right" to secede from the Union in 1860?

Anyway... just shooting the breeze!

Rainsborough said...

My 3d point: I observe that justices who think they have a correct understanding of what the Founders' intended and believe that that understanding should be controlling are prepared to override precedent to effect their views. They are also prepared to "legislate from the bench," i.e., use the power of judicial review to thwart the will of the people as expressed by the elected Congess and President.
Thus Thomas votes to strike down laws the most often of any justice, and Breyer the least often.

Judicial review was asserted as a power at the beginning of the 19th century, but not exercised (most unwisely) again till 1857. Then till 1937 it was used mostly to legislate from the bench a doctrine of laissez-faire not shared by the American people.
I think the debate at Philadelphia and elsewhere does reflect considerable support for judicial review. That doesn't make it any the less inconsistent with the tenets of democracy.

William R. Barker said...

Rainsborough said...

My 3d point: I observe that justices who think they have a correct understanding of what the Founders' intended and believe that that understanding should be controlling are prepared to override precedent to effect their views.

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BARKER REPLIES: Agreed.

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They are also prepared to "legislate from the bench," i.e., use the power of judicial review to thwart the will of the people as expressed by the elected Congess and President.

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BARKER REPLIES: Agreed.

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Thus Thomas votes to strike down laws the most often of any justice, and Breyer the least often.

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BARKER REPLIES: I'll take your word for it.

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Judicial review was asserted as a power at the beginning of the 19th century...

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BARKER REPLIES: Exactly! "Asserted!"

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...but not exercised (most unwisely) again till 1857. Then till 1937 it was used mostly to legislate from the bench a doctrine of laissez-faire not shared by the American people.

I think the debate at Philadelphia and elsewhere does reflect considerable support for judicial review.

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BARKER REPLIES: I'm not a constitutional scholar. I'll take your word that there's a good case to be made, but frankly, I'm also sure that there's a good case to be made to the contrary. Here's what bothers me: If the Founders meant for the Supreme Court to have the power of judicial review as presently understood... why didn't they insert such a clause directly into the constitution?

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That doesn't make it any the less inconsistent with the tenets of democracy.

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BARKER REPLIES: Exactly! We're in agreement!!!

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