But that's not how the system works. Losing doesn't mean you don't get a vote. If he gets all the necessary votes, then sure, let him be confirmed. I don't think we should barricade the capitol or something. But Democrat senators should certainly vote against him if they don't like him. They should even use the filibuster. Nobody feels bad about the fact that the president can veto any bill he wants, and that it takes a full 2/3 of congress to overturn it. Congress was created as a conservative body, that's why all these supermajoritarian rules were added. The founders *wanted* them to be used.
Just because you lose one vote doesn't mean you should just give up on all the rest. We still have say, and so do pro-choice republicans.
It almost sounds like you're falling for the Bush rhetoric that because he won the election, every policy he ever had was vindicated. It's just not true. There still has to be an opposition.
The question is whether this is or should be a "policy" dispute. Of course Democrats should oppose every bad piece of legislation that Bush or the Republicans present, but, like I say, I'm inclined to think that it's different with judges.
But, you know, we won plenty of other elections, like all those Senate elections that put some Democratic Senators in the Senate. And you might think that those Senators have some obligation to represent the views of the people who voted for them. Like, by making an effort to find out a potential Supreme Court judge's views, and even by voting against him if those aren't the kind of views we want on the Supreme Court.
There's also the fact that after the Republicans' shameful behavior from 1992-2000 all this principled talk is ridiculous. The Republicans lost the Presidential elections, and they blocked blocked blocked a whole bunch of Clinton's nominees, pretty much regardless of those nominees' views. I mean, the nominees were quite moderate and got blocked anyway. And the blocking strategies were quite unscrupulous. Then when Bush assumed power, the Republicans just decided to ignore the rules they'd set. Saying that Democrats should just lie down for Bush's far-right Supreme Court nominee is like saying that you should cooperate in a Prisoner's Dilemma after your partner has defected a thousand times.
So, last week, I was photocopying reams of pages out of the Almanac of the Federal Judiciary, in an effort to help my then-boss find out what circuits, districts, and individual judges were likely to be most helpful in a planned case. Part of the almanac's entry for a judge is his characterization by lawyers, which, when not contentless ("fine legal mind"—they all are), make no bones at all about the politics that go into the decisions. One dude, I recall, was characterized as going to much greater lengths and being much more creative when doing so would let him find for the gummint. Why, since every legal practitioner is able to acknowledge that politics are a major player in any judge's decisions, must we have some charade about judicial activism and keeping politics and law separate and whatnot?
I'm not going to try to convince you one way or the other, beccasue I haven't made up my own mind yet. Mark Schmitt said something at the TPM Cafe that I wanted to pass on, though. The hearings do matter. We don't need to make up our minds until after they're over. We xan wait to find out whether he's a case-by-case kidn of guy or somebody who wants to impose a sweeping vision.
Why are judges any different? Are they not just another policy issue? The president doesn't have carte blanche to pick whoever he chooses. If that was the idea then the senate wouldn't have to confirm judges. Why should the president be able to pick a judge for life without any dissent when he can't even set the budget for the coming year without it being torn to shreds in congress?
The problem is that when most people think "judge," they get a mental picture of a trial judge. For trial judges, competence and impartiality really are the most important things. You can be as ideological as all get-out, but as long as you're willing to follow precedent and be fair to litigants in individual cases, you'll be okay.
Appellate judges are different, because their jobs are all about setting new precedents where the law is unclear. But most regular people don't understand what appellate judges do.
1. What? This is precisely the same discussion we had about your cruelty to the differently abled. The rules of the game are pre-set, and everything within them is allowable. The only reason to vote for a judicial candidate that retards the possibility of a country shaped the way you like is comity. So the question is whether you're willing to say, "Fuck comity." For the record, I think They said it first.
2. That said, we have to be alive to political realities. Roberts comes off as a NSM; he's absolutely through. I assume at this moment Lieberman is masterbating to a picture of Roberts. All we can do right now is influence the framework by which future judges will be judged.
3. He blows on Padilla, apparently. Fuck. Baa should service the van and call Face.
4. If the religious nuts are to be believed, Lawrence just went 5-4. That, plus Gov. Perry's recent comments, means that Weiner should get himself to the Mineshaft toot sweet if he's at all bi-curious.
Bestial peccadilloes notwithstanding, the dude will be confirmed. Therefore, make as much fuss as necessary, but not so much (one hopes) as to compete with the emerging narrative of criminal misconduct.
I don't know what "notwishstanding" means.
That thing with the oboe.
Yet again, Ogged, I'm on your side. But I don't have firm views about the principles underlying these sorts of votes as distinguished from legislative decisions; I'm thinking of this more in pragmatic terms. Sure, wait for the hearings, and see what happens-- but if there's nothing hideous, if Roberts turns out to be a mainstream conservative, I can't see a filibuster working out well.
Another way of putting this might be to ask: what's the best outcome we could reasonably hope for?
I guess I see that as a different argument. Saying that politically, a filibuster would be bad is very different from saying that because the guy is a mainstream conservative we should vote for him. Dems should vote against any conservative on principle. The only reason not to wuold be to try to score some political points, but these guys don't exactly seem like the type to scratch your back after you scratch theirs. It's usually something more along the lines of we scratch their backs then turn around and grab our ankles.
I'm saying that O'Connor's EPC vote now goes the other way, so that the numbers move from 6-3 to 5-4. (I further assume that Stevens won't be able to hold out for three more years, and that Lawrence will be overturned. Gay people really seem to bother the Religious Right and Southern Republicans.)
Maybe I'm being an idiot, but it seems to me that it's important to work to preserve the ideal of a judiciary that isn't simply practicing politics by other means. I guess I believe that ideals influence how people behave, and this is an important ideal. I'm well aware that this, like other ideals, gets pissed on and ignored, but that's why it's work to preserve it.
As for pragmatic and political arguments, what SB said in 9, but not, I think, what Amanda says at linked 14, because on Clarence Thomas, we had Anita Hill, which made all the difference.
I'm with everyone else -- there's nothing immoral or unethical about opposing this guy vehemently because we don't like his politics (it may be a bad idea politically, or practically, but that's different.) The constitution requires the advice and consent of all the senators, including the Democrats, and if the advice is that we don't think he will do a good job, and the consent is withheld, that isn't improper.
it's important to work to preserve the ideal of a judiciary that isn't simply practicing politics by other means. I guess I believe that ideals influence how people behave, and this is an important ideal.
I don't remember any little bit of Plato I read, so is this a version of the Noble Lie?
is this a version of the Noble Lie?
No, definitely not. I think people can make a true effort to set aside their prejudices when making legal decisions (they'll only ever succeed "more or less"), and that we have to preserve the notion that that's what they ought to try to do.
to preserve the ideal of a judiciary that isn't simply practicing politics by other means.
At the appellate and Supreme Court levels, I don't think there is any such ideal. I'm not saying the system is corrupt, I mean that appellate judges are political actors. Their job is, in part, to make decisions in areas where they are not constrained by prior law or where prior law is wrong, and they make those judgments partially on policy grounds. A judge whose decisions are swayed by partisan considerations is a bad, corrupt judge, but a judge whose decisions are informed by their interpretation of desirable policy outcomes is doing their job properly. Opposing the appointment of a judge who we believe has mistaken policy views and will therefore make bad decisions in that regard is absolutely appropriate.
Ogged, if the other side doesn't act like you're proposing we do, if they do everything politically and aren't idealist, then we just get screwed. Like I said, we scratch their backs then it's time to lube up.
Re: #18. I'm a moron. Nevermind.
Ok, the political/partisan distinction is interesting. But wouldn't some people argue that judges ought to send decisions that require policy judgement back to the legislature?
Re #26: I think they do, on many matters. But there are some issues that should not be subject to simple majoritarian power. And political (or policy) beliefs are what help distinguish those issues.
Everything is a policy decision. How can a judge make a desicion, especially on the supreme court, without it being policy?
I think people can make a true effort to set aside their prejudices when making legal decisions (they'll only ever succeed "more or less"), and that we have to preserve the notion that that's what they ought to try to do.
I'm in agreement with this, but I fail to see how confirming a judge who does not do this would uphold the ideal. So I'd have to see that Roberts actually makes a good faith effort to do this before I'd advocate confirming him.
All judicial decisions have policy implications, but that doesn't make them "policy decisions" because judicial decisions are not (ought not be) motivated by the outcome, but by the law.
It's not practically possible, because legislatures aren't set up to respond to specific cases, and courts can't compel them to give answers. A court has to go one way or the other on the case before it, and often both ways have policy implications.
(I do think legislatures, both Congress and the state legislatures, are horrendously lax in this regard. It should be the norm for them to monitor new caselaw, and amend statutes to either confirm or controvert the current interpretations of ambigous or incompete law. But they don't. I wrote my not-exactly-a-thesis in law school on a labor law doctrine that has grown up around what, after research into the legislative history, I am morally convinced is essentially a typo in the Taft-Hartley act -- a provision that, when read literally, is nonsense and for which the closest reasonable interpretation of the actual words has nothing at all to do with what Congress meant to do. Congress has had fifty years to fix it. They haven't, and never will.)
LB, it sounds suspiciously like you're saying that the actual words may have a meaning that is different from what the people who wrote them intended. The Fisher King has decreed that you're blowing smoke.
30 -- Ogged repeats the central, beautiful, founding lie of jurisprudence.
In many instances, the law provides no single answer. Once a case gets to the Supreme Court level, you can strike out "many" and replace with "all." Where competing, equally valid legal answers compete, the desired outcome dictates.
If not policy, what would you have them base their decisions on?
Fish must allow for the possibility of simple mistakes, right? Where a speaker intends to say one thing, but unintentionally produces words that cannot be literally interpreted to mean what the speaker intends?
33--That seems a bit much to me. I can imagine that in the med-marijuana case, a lot of the justices voting to uphold the ban would have liked the cancer patients to get their pot, but didn't want to sign on to the crazy Commerce Clause jurisprudence--the government can't do nothing kind of thing. That reluctance to sign on may be policy-driven, but it's not just selecting for the desired outcome, is it?
competing, equally valid legal answers compete, the desired outcome dictates.
But there are still constraints on where, or at least how far, a judge can go. A judge whose "desired outcome" does not and cannot follow from one of those "equally valid legal answers," but who would rule for that outcome anyway, is not a judge I'd want confirmed.
judicial decisions are not (ought not be) motivated by the outcome, but by the law.
If you're the Supreme Court, for almost all intents and purposes, you are the law. You are, IIRC, subject to impeachment. You can destroy the credibility of the court such that no one will care when the executive does not enforce your decisions. And that's it.
right -- maybe I overstated my claim.
But the over-arching basis of the decision -- that the commerce clause ought to be broadly construed -- is also outcome based. You could make a decent argument that the commerce clause ought to be narrowly construed.
So you have a lot of caselaw going back to rely on -- judges don't just make bare policy decisions -- but in deciding where the case law should go forward, in choosing among forks in the road, there is always a latent policy decision at work.
That reluctance to sign on may be policy-driven, but it's not just selecting for the desired outcome, is it?
It's selecting for the desired rule of law -- the rule which, if applied consistently, the Justices think is most preferable for a host of reasons including fealty to the text of the Constitution, precedent, and policy in general. Making the decision on the basis of your desired outcome in a given case is bad behavior in a judge, but making the decision in accordance with the rule of law that generally produces the policy outcomes you prefer is often perfectly acceptable.
eb -- I agree. You are constrained to the legally plausible answers. I'm just arguing that you can't take policy wholly out of the process. It isn't laboratory work.
34: Don't know, I just linked it because Fish bugged the hell out of me. Actually I suspect that in that case Fish would say that the literal meaning of the words doesn't matter. Or more likely that he would mock at the very idea of literal meaning--as in his discussion of the rocks that spell out 'help'. I have some sympathy with that view, though I think it goes too far, but no sympathy at all with the idea that meaning is all intention. (As has come up occasionally.) And really no sympathy with the idea that these kinds of consideration mean that judges need to be figuring out the authors' intentions, and that's all they get to do.
Of course you can't take policy out, I concede that in the post. But if a judge's policy preferences aren't nuts, and if (I should have been clearer about this), he doesn't seem to be a partisan hack, I'm not sure his policy preferences ought to count against him in confirmation.
38-40, I agree, insofar as I get to have an opinion. Isn't that part of what made Bush v. Gore such a disgrace? The majority didn't even try to tie their desired outcome to principles that they'd accept in any other case.
Open thread: Stanley Fish is a dick. Discuss.
Does he address the idea that intentions radically underdetermine outcomes? I can't remember.
I've seen before some people argue that Fish's op-eds are not always what they seem. It's possible that he's taking an argument to its extreme just to mess with the people who believe it.
Kind of like his op-ed saying all politics should be taken out of education - I don't know if he was serious about that, but somewhere in the blogosphere I remember seeing people say that he probably wasn't.
That said, I never finished reading his take on original intent. It felt too much like homework. I guess I'll read it now.
Isn't that part of what made Bush v. Gore such a disgrace?
AFAIK, it remains good law.
To 42:
Well, his policy preferences are a big part of the job he's going to do. The Constitution says we get to withhold our consent if we want, and doesn't constrain our reasons -- IMO, thinking that his policy preferences indicate that he will make what we consider bad, even if not insane or corrupt, decisions, is a good enough reason not to consent.
It's a matter of strategy. This guy will be confirmed, especially because there's some ambiguity that can be raised about what he'll do on the bench. But if he sails through without controversy, then the next nominee will be an unambiguous paleoconservative. We can't let Bush "define deviancy downward."
This battle should also help to sharpen the differences between the parties -- Democrats believe in personal liberty, Republicans believe in having priests and politicians make your decisions for you. And so on.
Sure we lost last fall, and we will lose this fight, too. But being a good loser isn't supposed to mean that you get so good at losing that you keep doing it over and over again.
Brian: Exactly.
It's funny how Americans are still so troubled with the concept of an opposition party. And of course, it goes without saying that the democrats should vote against him. A vote against him isn't saying that he's the spawn of satan or that he hates kittens or whatever. It's just stating that "if we were in power, we would have chosen someone different, who we think would have been better." Which is entirely true and is a point that should be made forcefully and vocally.
This is what opposition parties do--only minority governments require compromises.
If he is a spawn or a second-cousin once removed of Satan, then filibustering would be completely fair, but it would seem to require a clear demonstration of genealogy if it were to be accepted by the general population.
IF I though Roberts was a mainstream conservative, I would agree with you, Ogged. I was argue that this is an opportunity to raise the debate about various liberal and conservative issues, but that there shouldn't be too much grief. I think it's the death of a democracy to simply let the majority rule, but this isn't really a democracy.
However, I don't agree that he's a mainstream conservative. The best evidence is that he wants to overturn Roe, which is a minority position. He believes in the right to agressively harass women outside of abortion clinics. If that's mainstream, I will seriously consider leaving this country. The far-right groups, such as Operation Rescue, are happy with this guy, and that should be telling.
Further, there is a real non-partisan issue here. This guy's only been a judge for 2 years. He's basically being appointed for being far-right and young. Not for his experience.
Maybe I'm being an idiot, but it seems to me that it's important to work to preserve the ideal of a judiciary that isn't simply practicing politics by other means.
I should go look into this, but it is my impression that it's because Dems have largely been trying to pretend this for the last 20something years that a large majority of federal judges are now conservative. You can't play this game if the other side won't.
There's another thing to be said here, about winning and losing elections, and the bearing of that on representation and how the minority party should act. Democrats have a popular-vote majority in the Senate, despite being down seats. Which suggests that the Dems have a right, a mandate perhaps, to resist as vigorously as possible.
You don't treat this guy as you would treat him, say, 2 or 3 years ago when he was put on the DC court. An SC Justice will create precedents (some of them bad [like Brown v. Board if you ask the Honourable Justice Thomas, or like Dred Scott if you ask any sane person]) and overturn precedents. So yes, we should ask him what his feelings are about political things.
Just because he's mainstream-ish doesn't mean we can't oppose him. Would you want a Ralph Reed-like Justice? Even though that's the right's main-stream it seems nowadays, doesn't mean that the left can't say we won't stand for it.
Here's the thing. This isn't just about the Justice, or the Supreme Court. Dems are unhappy with the party, and some of its members. To face this nomination without a spine, without any opposition, is just a clearer signal that the party is just a giant puppy dog: it's got no bite, and all it wants to do is get everyone to like it.
There's no harm in opposing this. Sure, the right will say "Look at those Liberals, they opposed this nice white man for the Supreme Court!" But don't think for a minute that they wouldn't say "Look at those Liberals, they don't stand for anything and didn't oppose him! What a bunch of waffling losers." If the dems are fierce, maybe they can get something back in 2006/2008 elections. If they are weak, well, America was a nice experiment.
ogged:
I think the problem I am running into is how to evaluate, " if a judge's policy preferences aren't nuts," without reference to hypothetical decisions he might make down the road. By what other method are you validating policy preferences?
I did some further looking up as regards my last point in 52.
"a href="http://www.independentjudiciary.com/courts/">Republicans have long recognized the great significance of judicial appointments to a presidential legacy and the strategic importance of the federal judiciary in symbolizing a president's political agenda. They understand that the judiciary's influence on this country and the lives of all Americans is not limited to actions by the Supreme Court.
Republican presidents have worked hard to pack the courts of appeals with judges who reflect their own ideology. As a result, ten of the thirteen federal appellate courts are dominated by Republican appointees, with only two under the control of Democratic appointees and one tied."
I think it's fine to ask about his policy preferences and try to figure out his real views.
Maybe it's true that policy is inevitably such an important part of making legal decisions as a Supreme Court justice that it's a perfectly legitimate reason to reject someone. I'm mulling it.
Why is everyone so quick to concede that mainstream conservatism is not "odious or truly at the margins of societal acceptability"? This is exactly what the right-wing noise machine is saying about mainstream liberalism. I think the burden of proof is on the candidate to show that his beliefs are not mainstream conservative but mainstream American. If he has to struggle to make a distinction between dangerous and merely crazy then he should be DOA and I don't care who's got the votes.
I have a question, and hope there's someone who can help me out with this. Roberts has a long history of working for the Reagan and Bush administrations and being a part of several Republican groups. That is, his history shows long-standing partisanship. Is this normal for SC nominees? I just looked up bios for Breyer and Ginsberg and they seem to have no such history of partisan affiliation.
I think it's a new construction to try to ensure that the person you appoint holds similar views.
It's hard to get an exact picture, but after checking around, I think it's at least safe to say that Roberts easily has a more partisan history than anyone currently on the SC.
AFAIK, it remains good law.
I'm not sure about that, SCMT. One of the more irksome bits of Bush v. Gore is that SCOTUS so obviously tailored it to the moment, and expressly prevented at least some of its reasoning from being used as precedent:
Our consideration is limited to the present circumstances
Well, it's irksome if you think the law shouldn't be decided ad hoc.
I don't know enough about the history, but I do know that it's a relatively recent development to limit S.Ct. nominees to appellate judges. Mark Schmitt had a good post up on this. Earl Warren was, by definition, a partisan, since he had served as a Republican governor.
Sandy the O was in the AZ house, wasn't she?