stealthlawprof

FISA, Terrorists, and Presidential Power

2006-01-31T13:04:00.000-06:00

The problem with the current surveillance dispute is that the issue ultimately is not what rights are given to terrorists or how the nation should protect itself from them. The issue is what right the President has to ignore an ill-conceived law rather than persuade Congress to amend or repeal it.

Unless the very general language of the authorization to pursue the war on terror can be viewed as overriding the very detailed (foolishly overly detailed) FISA provisions, we have a clear case of the President acting contrary to the expressed will of Congress. Applying Justice Jackson's Steel Seizure analysis, such a move by the President must fail unless the President has authority to act and Congress clearly has none. Such cases exist, see Padelford and Klein (which address a Congressional attempt to interfere with the pardon power) and Meyers (Congressional interference with the power to remove executive officials). This case appears not to fit those precedents.

The President's broad powers with relation to foreign affairs and as commander in chief do not give him power independent of Congress to deal with domestic affairs. This case is a virtual carbon copy of Steel Seizure.

What is doubly troubling about this scenario is that the administration views opposition to its position as disloyal. Many voters have turned to the Republican Party because the Democratic Party has rejected democracy -- preferring instead to impose its wisdom on the masses by whatever means are available (presently the courts). (In another era and another hemisphere, the current Democratic Party position was referred to as Democratic Centralism.)

If the Republican Party takes the position that the President can ignore the law, it has lowered itself to the Democrats' position. An all-powerful executive is just as much a rejection of our Constitution as an all-powerful judiciary. Will the American electorate no longer have any major party that honors our Constitutional democracy?

Also Honoring Justice O'Connor

2006-01-31T11:42:00.000-06:00

Orin Kerr at the Volokh Conspiracy posted public thanks to Justice O'Connor and invited others to do the same. Regrettably, this brought out a number of impolite and intemperate remarks. He, correctly, deleted the thread and turned off the comments.

Have we really sunk so far in our public discourse that one cannot politely acknowledge the contributions of a public servant regardless how much one disagreed with her?

Justice O'Connor has served for twenty-four years. She has been an intelligent and dedicated jurist. She has worked, especially in the past year, at great personal sacrifice, and she deserves great honor for all she has done. Scholars and other observers have had twenty-four years to analyze and critique her work, and there will be ample opportunity for more of that work in the future. For today, let's set aside our occasional differences and celebrate a fine career completed by a fine woman who has made significant contributions to our nation. May God bless her with peace in the final years she spends with her husband and with a long and blessed life.

Is It Appropriate For Republicans To Oppose A Republican President's Nominees Based On Their Judicial Philosophy?

2005-10-13T11:11:00.000-05:00

It is an interesting question to ask whether Republicans have a fair complaint if the President nominates someone known to have a contrary judicial philosophy to what the President and his party have advocated. Certainly, on the surface it appears inconsistent to complain about Democrats blocking judges based on philosophy not qualifications and then to block a Republican nominee based on philosophy not qualifications.

(Of course, the question could be posed with the parties changed – would Democrats have a legitimate complaint if a Democratic president nominated a known conservative? Push this toward the logical ends – what if Bill Clinton had passed over Ruth Bader Ginsberg to nominate Edith Jones; what if George W. Bush had nominated Larry Tribe for Chief Justice?)

The argument that elections matter might justify the members of the President’s party (whichever party) in opposing a nominee that clearly violates the terms of their party’s commitments to the electorate, even if philosophical opposition from the other party is illegitimate. The President is the leader of his party, and the members of that party have a role to play in keeping the President faithful to the party and its promises.

That having been said, the issue is purely hypothetical in the case of Harriet Miers.

The philosophy question should not arise until the qualifications issue is settled, and for Miers it is settled – against her. Engaging in the on-going debate about her philosophy assumes that her philosophy matters. But if she is manifestly unqualified (and I have argued earlier that she is), her philosophy is irrelevant. The prerogative of a Senator from the President’s party to vote against a nominee on philosophical grounds presupposes that the nominee is qualified; no Senator from any party should vote to confirm an unqualified Justice.

Does Miers's Experience as White House Counsel Qualify Her for the Supreme Court?

2005-10-08T22:16:00.000-05:00

No.

I have serious doubts that White House Counsel is suitable experience for the Supreme Court. The role of White House Counsel is to be the President's lawyer not the government's lawyer. It therefore fails to put one in the position of having to contemplate the societal implications of her representation.

Regardless, the argument is a ruse in this case. Miers has been in that job for less than a year. Prior to that she was White House Secretary -- responsible for the paper flow from the Oval Office and ensuring that everything with that paper was in order.

All the examples to which people point as important issues that have been addressed by the White House Counsel arose while when Al Gonzales was White House Counsel. This includes the discussions of detention policies for enemy combatants as well as controversial federal appeallate court nominations. (Even the ones just confirmed this year were originally cleared with Gonzales as White House Counsel, not Miers.)

If Harriet Miers as the White House Secretary was the President's prime advisor on judicial nominations and detainee policy (as is now claimed), then he was passing up his own White House Counsel and the Justice Department's Office of Legal Counsel to obtain legal advice from someone not serving in a lawyer's capacity in the administration. That is an amazing admission of dysfunctional operations if true.

Miers for Tax Court, SEC, Federal Circuit?

2005-10-08T00:08:00.000-05:00

I must admit that the drumbeat from the White House, its defenders, and a fair number of lawyers that Harriet Miers is a good lawyer and therefore qualified to sit on the Supreme Court is getting under my skin. It reminds me of the classic law school saw that any professor can teach any class if necessary. (That, by the way, is true, although we tend to make exceptions for a few specialized courses.) But is sitting on the Supreme Court no different than teaching Torts to first year law students?

What would have happened if the President had nominated Miers to sit on the Tax Court, the Securities and Exchange Commission, or the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent cases and a few other specialized topics)? Would the same people claiming she is qualified for the Supreme Court have said she was qualified for these positions? I suggest they would not.

So, what is their message? Constitutional Law is not complicated, and it can be mastered on the fly by any capable lawyer.

For anyone who has spent a career studying Constitutional Law, the notion is offensive and naive. A tax novice on the Tax Court would wreak havoc on Tax Law. Assurances that she would vote like another well-respected tax court judge would not fix the problem. A Constitutional Law novice on the Supreme Court is even more dangerous. Constitutional Law is a complex blend of text, history, precedent, and policy. One who deals seriously with the issues recognizes how difficult it is to anticipate the impact of decisions and assess their potential for unintended consequences.

The impact of a Supreme Court justice is broader than that of a judge on the Federal Circuit, and the potential for damage to the nation from an unqualified justice is greater than with an unqualified SEC commissioner. We deserve not to have a justice undergoing on the job training in Constitutional Law.

New Argument for Miers: Evangelicals are Textualists??

2005-10-05T15:53:00.000-05:00

Now the argument for Harriet Miers is turning religious. It goes like this: She is an Evangelical, and Evangelicals interpret the Bible strictly; therefore, she will interpret the Constitution strictly.

How quickly the Evangelicals forget their own hypocrisy. Many of the leading voices in the Terri Schiavo fiasco were Evangelicals. And what was their legal position? Allowing Michael Schiavo to withdraw Terry's feeding tube was an unconstitutional denial of her due process rights. What due process rights would those be? Certainly, we are not speaking of procedural due process; the Schiavo case was in court for years and had countless hearings. No one (and no viewpoint) was denied an opportunity to be heard. There was never a failure to give notice. The decision-makers were neutral and detached, not having prejudged any portion of the case.

So, where was the due process violation? The Evangelicals found it in the substance of the existing Florida law that allowed Michael to proceed to withdraw the feeding tube. In other words, they declared that there is a substantive due process right to life that overcomes any state law allowing a husband to withdraw life support under those circumstances. And what is the major issue on which they now say Harriet Miers is a reliable conservative because of her religion? That she will never find a substantive due process right of privacy in the Constitution because her religion mandates a strict reading of texts. Their beliefs did not mandate a strict reading of the text when Evangelicals wanted a different result.

For personal, moral reasons, I disagreed with Michael Schiavo’s decision to withdraw the feeding tubes. Nonetheless, I defend without hesitation the right of Florida to make laws that allow Michael to make that decision. If I disagree with those laws, I can elect representatives who will pass different laws. I cannot turn to the courts to overturn laws based on a unenumerated rights that I would like to impose on society. There is no legitimacy to substantive due process – not in Griswold, Roe, or Lawrence, and not in the Evangelicals’ Schiavo argument.

The fact that Harriet Miers may be an Evangelical tells me nothing about her judicial philosophy or how she will vote, and it does nothing to convince me that she is qualified to sit on the Supreme Court.

Supreme Court Considerations Revisited: State Judges and "Walks of Life"

2005-10-05T10:55:00.000-05:00

Having no shortage of confidence (an occupational hazard -- try standing in front of a room full of eager law students without having confidence), I think my posts are brilliant. It is irksome to find some of them getting lost at the bottom of others' threads, so I am going back and picking up a few of my favorites from the pre-Miers era. (I started to edit this one to give it a bit more relevance, but frankly, I like the whole discussion. I did edit a bit for added clarity.)

Alito would be great, but he is certainly a tougher confirmation and doesn’t do much for the “all walks of life” criterion. (We’re going to balance the Court’s irrational overpopulation of Harvard grads by adding a Yalie?)

Corrigan still worries me a bit because Republican appointments of state judges have not turned out well on the Supreme Court — Brennan, O’Connor, and Souter are the most recent examples (not counting Souter’s two months at the 1st Circuit as substantive). That is not just a bit of superstition. State judges are elected, they interpret a constitution that is easily amended, and one of their explicit roles is to make and alter the common law. This leads them (1) to see themselves as representing the public, (2) to be willing to more loosely interpret laws and constitutions because if they have misunderstood the public sentiment the mistake is easily fixed, and (3) to be more active about making law — which is fine for the common law (judge made, judge unmade) but is disasterous in federal constitutional law.

An additional line of discussion that we continue to see — disputes over the “walks of life” argument — deserves additional comment.

Historically, the Supreme Court has had a balance — not the recently-minted hogwash about conservative presidents appointing liberal judges to maintain vote patterns, rather an expectation that the Supreme Court would have a geographic and cultural balance. Thus, for years, we had the idea (not always followed but at least acknowledged as an important factor) of the Catholic seat, the Jewish seat, the Southern seat, etc. Of course, the Democratic party has taken this notion of a diversity balance to such an extreme that we now have identity politics that threaten the emergence of tribalism.

Without approaching that extreme, it is still important that the Supreme Court, in some broad and general ways, reflect the tapestry of American life. It is not healthy that half the Court went to one law school and the other half represents the other 180 schools. It is not healthy if most of the Court comes from the same geographic area. That a potential justice is personal friends with other justices is not a qualification per se; the Court is not a country club. Does that mean that the president should consider geographic origin, race, gender, type of education (public/private, eastern elite/elsewhere), socio-economic background, etc.? Yes.

Contrary to the typical drumbeat on these posts, there is no one person who is the singularly best qualified person for the Supreme Court. There is no divine right of nominees. Many people are qualified and capable and (given who won the last election — elections do matter) reliably conservative, probably far more people that will ever get noticed here or by the President.

Yes, I like Williams. I like her intellect, her opinion-writing craft, and her judicial phiosophy. I like that she is female and that she is Southern (large portion of the country and certainly of the Republican base to expect it to have no seat on the Court). I like that she did not go to Harvard, that she stayed with her husband and their children in their home state and attended her home state law school. I like that she is Baptist. (I am not Baptist; far more importantly, none of the current Justices are. It is a perspective worthy of being heard and it is not already there.) I like that she lives in Orangeburg — wherever the heck that is, it obviously is not a major metropolitan area, and that is good.

That having been said, there are lots of folks who are qualified. Corrigan brings a state perspective that, while I worry about it (as noted above), is a worthy consideration. Others bring equally worthy perspectives. The President will have to balance all of those considerations and choose one person. So long as he chooses someone who is qualified, capable, and reliably conservative, the President will have been faithful to his promises, even if his first choice is not mine or yours.

Oh, those halcyon days when we thought the President would act responsibly. Instead we get a nominee who is not qualified and not capable. Under those circumstances, I could care less whether she is relably conservative.

Damage Control Advice for the White House

2005-10-05T10:25:00.000-05:00

Harriet Miers is unqualified. She has no experience in her record to indicate that she has thought about, much less grappled with, the important constitutional issues of the day. I don’t care where she went to law school, and I don't care that she has not been a judge. I care deeply that she has no appropriate experience for the position.

Appropriate experience can come from

(1) judicial experience,
(2) governmental service in the DOJ (e.g., Rehnquist, White, Jackson), an important agency (Thomas, Douglas), Congress (Black) or even in a Congressional staff position (Breyer),
(3) academic work in Constitutional Law or related fields (Scalia, Frankfurter), or
(4) significant Supreme Court litigation experience (Roberts, T. Marshall).

Many qualified candidates have more than one of the above experiences.

Miers has none of them.

Can she suddenly become a legal theorist of the highest order? Will she grasp the significance of the Court and its unique role in our governmment? Not likely. All we are getting is the assurance that she will be a legislator, in the model of the justices who continue to reshape the “living” constitution, BUT that she will vote the opposite way.

To the extent that a reliable vote is all we can get out of this fiasco and that a second nomination would be worse (Torture Memo Gonzales?), here is the damage control strategy the White House better adopt:

The Democrats have already said they accept Miers, so she needs to come out even before the hearings as a full-bore textualist/originalist. She needs to make Bork look like a quiche-eating liberal. Attack substantive due process; trash Griswold, Roe, and Lawrence; put a stake in the heart of the “living” constitution. The Democrats can’t back away now without looking completely foolish, and the President has to shore up his base. Since she is a total blank slate and Bush can write whatever he wants on it, he better get writing fast and it better be awfully good.

What do we do now?

2005-10-04T22:14:00.000-05:00

Events of late have taken me into far more political territory than I would have liked, but all of us who have hoped for a return to the Constitution in Constitutional Law have been badly abused by the President's failure to take advantage of the opportunity he had.

What do we do now? This will not satisfy those whose bloodlust has been stirred by the President’s horrible choice, but here is my advice:

1. Do not abandon the Republican Party as an entity; take it back! While many of the framers did not favor political parties, our system has the consequence of assuring a two-party system. (I could explain that in more detail if someone wants, but I’ll leave it as a given for now.) Thus, conservative abandonment of the two party system is suicide. We can control the GOP. We should control the GOP. Our lack of control over the GOP is because of things I will discuss below.

2. Work hard to elect truly conservative Republican Senators. Bush’s fear of RINO’s seems to be a part of the problem. Too many folks do not get involved in the process until the primaries are over and then the choice is usually self-evident. Even a lousy RINO is better than the best donkey 95% of the time. I am not advocating people who come across as looney; get strong, presentable, bright, articulate candidates and elect them.

3. Pay more careful attention to the presidential candidates for 2008. The GOP has a track record of coronations, not nominations. 2008 already looks different because there is no obvious GOP front-runner (for the first time since 1968). We need to look carefully at the track record and electability of the candidates and make sure we get a winner who will remain a winner after being elected. Our record so far has just been too spotty.

4. While we cannot rush to a choice for 2008, we do need to unite behind a strong candidate for 2008 without a lot of folks sitting out because they did not get their top choice. There are plenty of capable folks out there. Let’s give them some time in the crucible, pick one of the best, and then get him or her elected.

5. We cannot sit out 2008!!! There is nothing gained by having a Democrat for four years or eight years. If that happens, there is just that much more damage to try to fix when we do get in power again. We’re spending too much time trying to dig out of problems as it is.

6. As to Harriet Miers, I doubt she will fail confirmation unless there is some as yet unknown disaster. I suppose we just pray that she does not bring shame to the Court, that she sticks with Scalia and Thomas for voting purposes, and that she tires of the job as soon as we have a true conservative president in the White House. I suspect she is probably about 60% likely to vote the right results, but she is still a political hack and it is embarrassing to the Republican Party and the conservative movement that she has been nominated. I fear that damage is already done.

7. Winning in 2008 is still critical. Justice Stevens is 85. I think he will hold out for the 2008 election, but his chances of staying through 2012 (age 92) are slim, and 2016 (age 96) seems extremely unlikely. By 2016, a lot of the present justices will probably have retired (most will be 80+). As frustrating as this process is, can we really abandon the Court for another thirty years to appointments who see themselves as Platonic guardians imposing their superior will on the rest of us who are mere mortals? We must see the battle through to the end. We did not know it would take so long, but restoring our constitutional republic for future generations is worth the effort.

Sorry, if that sounds like an overly-bland agenda. Ours is a representational system. If we screw up in choosing our elected officials, we’re toast. The only way to get correct that is to do a better job of voting and to do that consistently.

Please Tell Me This Is All A Bad Dream

2005-10-04T16:56:00.000-05:00

I received my Newsweek today. Cover article? The GOP: A Mounting Crisis of Competence & Cronyism.

And this was BEFORE the Miers pick.

The Miers Nomination and Upcoming Senate Races

2005-10-04T15:49:00.000-05:00

One of the many, many sad legacies of this pick is this: The Republican Party had carefully established a public perception that it valued the judiciary’s unique role in the American system of government and that it only picked eminently qualified jurists. That started with Reagan and had continued through until yesterday. While it took a long time for this to build into a politically powerful perception, we finally saw the results in the 2004 election, as Democratic Senators were defeated for obstructing these well-qualified GOP choices. Now, in one foolish gift to a crony, George W. Bush has destroyed twenty-four years of careful cultivation.

Recognize — if this appointment had been made before 2004, Tom Daschle would be the current Senate Majority Leader.

GWB Appoints Miers -- Grade: F-

2005-10-03T11:54:00.000-05:00

I have spent my blogging time of the last week over at confirmthem.com engaged in some very interesting debates over the impending nomination. Now the choice is out.

Harriet Miers. There are some lessons from this:

1. (a) Either the President is ignoring everything coming from sources like confirmthem.com that supposedly reflect his base

or (b) he just told the base to kiss his rump.

2. (a) Either the President has no clue what the judicial philosophy of Scalia and Thomas is

or (b) he just told the base to kiss his rump.

3. (a) Either the President is so dense he cannot tell the difference between John Roberts and Harriet Miers with regard to intelligence, presentation skills, and experience

or (b) he just told the base to kiss his rump.

I think I am noticing a pattern.

There has been active debate about a slew of names -- probably twenty or so names got some level of serious play. Miers has the distinction of being dismissed universally as the most preposterous possible choice.

If you were in the debate or were now to review it, you would see a wide array of criteria being applied. Some people were touted for known positions on important issues. Others were lauded for years of experience. A lot of discussion centered on intellectual heft, quality of experiences, even quality of law school. Concerns were raised about candidates that appeared to reflect cronyism. Some folks expressed a desire to show that membership on the Court was available to people from all walks of life, while others derided an appointment based on identity politics.

I did not agree with the relevance of each of these criteria, but it is interesting that it is a clean sweep. Miers is an F- on every criterion suggested.

Her positions on any of the issues of the day are unknown and there is no indication she has ever thought deeply about them.

She has no significant experience in a judicial post or government service (as distinguished from service to the President himself).

There is no evidence of intellectual heft.

Her academic record is paltry.

She is the epitome of a crony – the President’s personal lawyer from the President’s home state. She has no qualifications other than who she knows. And that cronyism wipes out any plausibility to the walks of life argument. Sure she is female (so is half the population). But there were many well-qualified women available who would actually come from different walks of life – small towns, state courts, underprivileged background, etc. Miers does not represent any different walk of life. Therefore, the appointment smacks of pure identity politics – check mark in the female box.

This reminds me of two great stories. I’ll try to keep the details straight on them.

First, in 1961, Senator Kerr of Oklahoma put forward Luther Bohanan to be a federal district judge. Bohanan was widely regarded as utterly unqualified (and his service proved all of those people to be correct in their assessment). Kerr’s response was that anyone could get a qualified judge appointed; the true test of power was to be able to get an unqualified judge appointed.

Second, when Nixon failed on the Haynsworth nomination in 1969, he followed with Harrold Carswell, an appointment also viewed widely as mediocre. Senator Roman Hruska, ranking Republican on the Judiciary Committee, defended Carswell with the following statement: “There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation aren’t they?”

I have no idea what the President was thinking or if he was thinking. There is no silver lining with this cloud.

I forward no guess as to whether Miers will be confirmed. In any case, we have a flaming disaster. If she is not confirmed, O’Connor stays on the Court for another term. If she is confirmed, we get a manifestly unqualified Justice on the Court who may or may not understand the scope of the issues or make appropriate decisions. Even if she turns out to vote the right way, the GOP has lost all credibility with the public in presenting itself as the party that governs responsibly, respects the federal courts by appointing highly qualified jurists, and puts principle over politics in the courts.

F-

More on names -- Karen Williams, Consuelo Callahan??

2005-09-22T11:26:00.000-05:00

Names continue to bounce around with reference to the additional vacancy on the Court. Of course, blogs have no shortage of secret sources high in the White House (or other impressive public buildings). Among the names that seem to have active play right now are Consuelo Callahan of the 9th Circuit and Karen Williams of the 4th Circuit.

I claim no inside source at all. That disclaimer having been made, the Callahan rumor strikes me as a bit contrived, but the Williams rumor feels substantive to me.

Callahan is a demographic dream -- Hispanic woman -- but she has little beyond that to indicate why the President would be paying attention.

Williams has more track record because she has been on the 4th Circuit for 13 years -- yes, that is the 4th Circuit that is the most conservative appellate court in the nation. Someone has to have been voting with Wilkinson and Luttig to develop that reputation, and it appears it has been Williams. (This reminds me a little bit of 1986 when a Judge Scalia of the DC Circuit was nominated ahead of better-known colleagues from that court, including Robert Bork.)

I do not believe that judicial experience is a prerequisite for becoming a Justice; however, some indication that a person has thought carefully about the role of the Supreme Court in American government is a prerequisite. Among other places, that background can come from work in the Justice Department, law school teaching, significant litigation experience in the federal appellate courts, or service as a federal judge.

Judge Callahan's two years on the 9th Circuit were preceded by a number of years as a state trial and intermediate appellate judge. Those positions do not indicate much exposure to the national scope and impact of the Supreme Court's work. (Soon-to-be Chief Justice Roberts also had only two years as a federal judge, but that was preceded by extensive Supreme Court litigation experience and a number of very responsible assignments in the Justice Department.)

Judge Williams's longer stint on the 4th Circuit evinces more experience grappling with the larger issues of the role of federal courts and the Supreme Court. The only sort-of-smoking gun in her record is her opinion holding that a federal statute properly established an evidentiary standard in place of the Miranda rule (her decision was reversed by the Supreme Court -- United States v. Dickerson). Given the common theme of the Roberts hearings that Congress feels the Court lacks respect for it, Williams should be able to fend off any attacks based on that case. It is inevitable in the course of 13 years that one will make a decision with which a higher court disagrees; her mistake here, if any, was deferring to Congress more than the Supreme Court apparently thought was proper. ("Surely, Senator, you can agree that federal courts should give deference to Congress.")

Predicting is a dangerous game, and I ought to have enough sense to avoid it. Nonetheless, Karen Williams's name is one that rings true to me in this process. Watch to see if we become more familiar with it.

Man bites dog!

2005-09-22T11:21:00.000-05:00

Let's see -- Leahy, Kohl, and Daschle (whose vote is as meaningless as mine) now support Roberts. What gives?

These Democrats are simply setting the table for opposing the next nominee. The one week delay in the committee vote gives them room to hope the public will forget how they embarrassed themselves in the hearings. Now, they will vote for Roberts, who was clearly going to be confirmed anyway, and claim on the next nominee -- regardless who it is -- (1) that their vote for Roberts proves they are not opposing all Bush appointments and (2) that this nominee is so far out of the mainstream (i.e., not approved by People for the American Way) that opposition and even filibuster are justified.

Does it lack any integrity or principle? Yes. Is it underhanded and deceptive? Yes. Should we be surprised? No.

Hugo Black had it very, very right

2005-09-19T20:38:00.000-05:00

Eugene Volokh, on the Volokh Conspiracy, has a posting now about Justice Black's questions in oral argument that presciently predicted the Griswold privacy doctrine's impact on abortion laws. My comment follows:

The larger point that Black understood from personal experience was that any doctrine allowing the Court to create rights from whole cloth can be used to invalidate any law as soon as five Justices decide to do so.

It does not matter whether the source of the rights is passed off as substantive due process (an oxymoron), the Ninth Amendment (an anti-preemption provision), or eminating from the penumbras of other rights (the twisted progeny of Bill Douglas's imagination).

It also does not matter whether the claimed "right" is privacy (which can easily slide from contraception to abortion to homosexuality to adult consensual incest, polygamy, etc.) or the liberty of contract (sorry, my libertarian friends, the Constitution no more dictates your world view than it does Ted Kennedy's) or whatever other right five Justices like more than the electoral majority.

The unenumerated rights doctrine by any name and with any intent is an unvarnished usurpation by judges of the people's sovereignty. The purpose of a written constiutution is to allow the people to agree by super-majority to withdraw certain subjects from the majoritarian process. If someone wants other topics withdrawn, they must go through the same process -- Constitutional amendment. Allowing anyone or any idea to short-circuit this is the height of illegitimacy.

Names, names, names ....

2005-09-16T12:36:00.000-05:00

Lots of intersting names continue to circulate with regard to the next Supreme Court seat: Priscilla Owen, Larry Thompson, Miguel Estrada, Alberto Gonzales, Janice Rogers Brown, Michael McConnell, etc.

Todd Zywicki of the Volokh Conspiracy suggested on Septemeber 5 that the Roberts nomination indicated a preference by GWB for people he himself had nominated earlier and that this trait reflected GWB's penchant for following his gut (with an apt reference to seeing into Vladimir Putin's soul).

I agree and posted a response at the time noting: "I do not think George W. Bush is alone in this trait. His father did the same thing. That is how we got David Souter on the Supreme Court. Bush 41 had interviewed him only a few months earlier with regard to Souter's appointment to the First Circuit, and he liked him. We can only hope that 43 has done a better job of both figuring out his base and looking into judges' souls."

That being said, I still believe GWB is more likely to appoint someone whose soul he has already viewed and approved. That is why some names (Luttig, Wilkinson, Jones) are not on my list. I also do not see any David Souters on the above list. 43 seems much more careful about keeping the base happy; I am not sure he will like anyone's soul enough to take that risk.

I wonder if the uproar over Gonzales and privacy isn't a pretext. The claimed source of his "squishiness" on abortion is a thin reed. However, his perceived role in the torture memo fiasco strikes me as the type of problem that could cause some Republican senators to oppose his nomination. Rather than embarass the President publicly over the torture issue, are they just allowing the abortion discussion to continue so the president has a more plausible excuse for passing over Gonzales?

Brown and Owen are interesting of course because they just recently made it through the Democratic filibuster. On that front, the possibility of an Estrada nomination is particularly interesting. His withdrawn nomination to the DC Circuit was the lynchpin of the early filibuster efforts, but the opposition to his DC Circuit has since been exposed as a ploy to keep him off the Supreme Court, not any measure of his qualifications. Of course, the filibuster succeeded only when the Republicans had a more tenuous hold on the Senate. Will GWB be able to go to Estrada now because he has 55 GOP senators? I suspect the answer is that he can if he wants to do so, but he could also go to any of the names above -- except Gonzales -- and push then through. Having fifty-five senators allows you some pretty significant attrition from your own party before you are in trouble.

The Hearings End -- What Now?

2005-09-16T11:44:00.000-05:00

A discussion on Ann Althouse's blog prompted me to respond. Here is a slightly edited version of that post:

Now that the Roberts hearings are over it will be interesting to see the next moves by the President and the Senate Democrats, particularly with reference to the still-open seat.

On one hand, the Democrats could set up Roberts as a benchmark for future nominees. Roberts sets a mark that would be hard for almost anyone to meet, and that would make it easier to oppose the next Bush appointment without necessarily looking like ideologues.

On the other hand, they may have been too aggressive already in attacking Roberts to be able to sell a vote for him either to their base or to the public which might smell some partisan chicanery in the air. (Could the one week gap between hearings and vote reflect a Democratic plan to try to soft-pedal their hearing performance and set up Roberts as the unattainable benchmark for the next nominee?)

The prevailing wisdom is that no nomination will come until after the Roberts vote from the committee or even from the full Senate. I questioned this last week and still question it. Roberts is clearly in. A quick announcement puts the next nomination in the context of Roberts and the Committee Democrats' poor performance with him. Any screaming about the new nominee is just going to look like more of the same partisanship. Allowing time to pass may allow the Democrats to make their opposition to the next nominee look principled.

When will GWB appoint a new Justice?

2005-09-08T10:22:00.000-05:00

Let's start with some useless speculation -- How long will President Bush take to make his decision on the remaining Supreme Court seat?

I get this weird sense that GWB may be trying to get Chief Justice Roberts (an appointment I predicted before starting this blog, but for which I would like to receive credit anyway -- of course, I was hardly alone in seeing that one) through the confirmation process before giving out the next name. Oddly enough, the Senate Democrats seem to sense this and act irritated that he will not give them both names at once.

What am I missing here? I see no advantage to GWB in delaying the naming of the new Associate Justice, and I see no reason why the Democrats should object if he does delay -- except perhaps to convince him to delay.

The Demos are going to look silly attacking Roberts at this point. (And that, as always, is unlikely to deter them.) As I noted in a comment on Ann Althouse's blog, they have spent months and millions trying to get an angle on Roberts, and they have nothing to show for it. Roberts has great press and great polling numbers. The Donkeys can try to flex their muscle and get 40-45 votes against him, but they cannot defeat the nomination. They simply risk more alienation of whatever swing voters are left if they attack Roberts aggressively. (If they go so far as to filibuster -- a scenario I find very unlikely -- they also risk that the Pachyderms will dust off the "nuclear" option.)

Furthermore, the Roberts for Rehnquist transition is far better from their perspective than a Roberts for O'Connor transition. The longer the President delays, the longer O'Connor serves. That should be a godsend from the Donkeys' perspective.

On the other hand, for GWB to delay will allow the Demos to practice on Roberts and get really worked up for a full-scale attack on the next nominee. A quick appointment would force them to figure out where to concentrate their fire. (A bit of a variation on the Rehnquist-Scalia combination from the Reagan era.) While the new nominee is likely to catch the flak anyway, putting it right next to the Roberts hearings is more likely to show the opposition for what it is.

Of course that leads to yet one more question -- what is the opposition to GWB's appointments? Very simple -- think in terms of the Federalists after losing the election of 1800. The Midnight Judges Act was their attempt to keep the judiciary as their bastion of power even though they had lost the election. Similarly, the Donkeys have lost elections but have had a power base in the courts. Now that power base is endangered. If they lose this, they have nothing left until they can win elections again ... and as long as the benighted electorate sees the Donkeys as the party of gay marriage, terrorist appeasement, and race baiting (alas, not nearly the ring of "Rum, Romanism and Rebellion"), the Demos will be the Permanent Minority Party.

P.S. I tried to create a link where I reference the Althouse blog, but I am new at this. Here is the information:
http://althouse.blogspot.com/2005/09/must-roberts-now-meet-even-higher.html#comments