Sunday, May 17, 2009

Earth to Obama: Your Supreme Court Choice Is SUPPOSED to Galvanize Republicans

Democrats chose Obama because he promised change from eight years of Bush. This includes having liberal nominees for the federal courts. But many articles have portrayed Obama as seeking to avoid controversy with his choice for the Court.

But the judicial nomination process -- especially with respect to the Supreme Court -- is inherently a political battleground. Republicans know this, and so do Democrats. The political parties have known this from the start of the nation's history.

Judicial Appointments Have Always Been "Political"
Marbury v. Madison is the first case that law students read in about 99% of required constitutional law courses. The legal issue was fairly simple -- the plaintiff Marbury sought the delivery of his commission to sit as a justice of the peace of the District of Columbia. Madison, the Secretary of State, refused to deliver it at the request of newly elected President Jefferson.

The broader background facts, however, demonstrate that esteemed early Americans viewed courts in stark political terms. Before Jefferson took office, the lame duck Adams administration passed a law augmenting the size of the federal judiciary and rushed to fill the additional slots with Federalist Party nominees. Time ran out before some of the appointees could get their commissions, which they needed to sit as judges.

After Jefferson took office, he and the new Congress repealed the statute that enlarged the size of the judiciary and withheld the undelivered commissions because he did not want the Federalist Party nominees to sit in judgment of the Democratic-Republicans. In order to evade Supreme Court review, Jefferson shut down the Court for over one year. Despite this behavior, Jefferson is a exalted figure in United States history. Today, by contrast, politicians feign outrage over ideology -- that is, if their own party is not making the judicial nomination.

Politics Influences Judicial Appointments Today, and the Constitution Anticipates This Situation
Hearing the parties disingenuously assert that ideology should not play a role in the selection of judicial candidates is laughable. If both parties followed their insincere anti-ideology rhetoric, then Scalia, Thomas, Alito and Roberts would not sit on the bench, nor would Ginsburg and Breyer. Stevens and Souter are a bit more complicated. The normal script, however, describes both of these justices as Republican "errors," which supports my thesis that presidents pick candidates based on ideology.

If the Framers of the constitution did not want the process to have a political dimension, then they would not have allowed the President to make nominations and the Senate to confirm the appointments. The tremendous role of the President and Senate ensure that politics will continue to influence judicial selections.

Ideology Is Not Inconsistent With "Judging"
To say that a judge is "ideological" does not mean that a he or she lacks "judgment" or that he or she does not follow doctrine or principle. Conservatives have described Sotomayor as an ideologue, despite that fact that she has ruled against numerous civil rights plaintiffs and against the Center for Reproductive Rights in a case where she steered very closely to pre-existing precedent.

The Republicans have constructed their list of judicial nominee faux pas, and "gay marriage" has joined abortion as a potential judge-slayer. Articles in both the Washington Post and the Los Angeles Times outline the conservative (idelogical) strategy. For example, Republicans hope to go after Seventh Circuit Judge Diane Wood, if Obama picks her to replace Souter, because she dissented in a pair of cases in which the circuit upheld state bans on partial-birth abortion. But until recently, Woods' dissenting view mirrored Supreme Court doctrine on the issue, that is, until the five conservative justices -- minus O'Connor and plus Alito -- decided that Congress could ban the procedure. The majority's effort to distinguish precedent that undermined its conclusion was strained. Basically the contrary ruling happened because O'Connor left the Court, Alito replaced her, and Kennedy is squeamish about the procedure [Note: I am squeamish about medicine, which is exactly why I went to law school.].

Change Is Not More of the Same
From the very beginning of the Democratic primaries, I disagreed with my liberal colleagues who described Obama as a leftist dream come true. I suspect that many of them are beginning to see the light at this point.

Progressives, however, can push presidents to do things that they otherwise might not do. This is how broad political change has occurred historically. Unless liberals remind Obama that we did not vote for him in order for him to capitulate to Republicans or adhere to his own right-leaning instincts, then he will have no incentive to stop doing so.

Related Readings on Dissenting Justice:

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor


Anonymous said...

hey darren,
love your blog...
upon reading your bio...I realized I know more about you than I know about our president!
Were you born in the USA and do you have a COLB to prove it! LOL
Keep up the good work!

Darren Lenard Hutchinson said...

Hi, anonymous. Thanks for reading!

Mark G said...

Would you go so far as to say that Reagan's opponents were wrong to argue that applying an anti-abortion "litmus test" would nappropriately politicize the selection process?

My somewhat cynical take -- although most lawyers and politicians know that judges often have no choice but to resort to their own policy views to decide some questions (such as, when is a stip search of a teenager "unreasonable" under the Fourth Amendment), most laymen do not know this, and are offended by the idea of a judge doing anything more than applying the law as created by Congress, or the Framers. So, no matter which party nominates the judge, the other party always plays on the ignorance of the non-lawyer voting public, citing the nominee's expressions of political preference as proof that the nominee can't be trusted to simply "follow the law."

You need to catch up with the times. No presidential candidate has been honest about this process, or about anything else, since Mondale admitted that, if elected, he favored raising taxes.

Darren Lenard Hutchinson said...

Mark G - I believe I am caught up with the times. I think that we do a better service to the public if we just admit what judging is about. There is a lot of "room" to interpret the constitution. If the public wants a moderate president to appoint a moderate justice, we need to say that. If the country wants liberals or conservatives, that's fair too. But to pretend that judging and ideology are mutually exclusive concepts is an embarassment to people who actually think deeply about issues. If the public needs an education, let's provide it!

Mark G said...

Prof. Hutchison -- Well, I'm with you all the way. Still, I doubt the politicians will ever get over their preference for propaganda over the kind of honest talk that happens between friends who happen to disagree. And the professional media can't make money selling stories that don't fit the narratives people will pay to hear over and over. So, if folks are going to be educated, I think you and the other bloggers are going to have to do most of the work.

Darren Lenard Hutchinson said...

Hi, Mark. I agree that politicians and the media do not value or trust intelligent discourse. I do not want to come across as idealistic; I am not. But it does not strike me as too difficult for a few journalists to cut through the "crap" and tell the truth. Apparently, Toobin has an essay in the New Yorker, which tries to do this. The article analyzes J. Roberts.

Mark G said...

I had read only the start of Toobin's piece; I went back and buzzed through the rest. Seems to me a poor effort at educating non-lawyers. The piece repeatedly suggests that Roberts' votes and opinions are mainly expressions of his conservative political preferences -- the same unfair smear some R's will lay on the President's nominee.

Toobin cites Roberts' belligerent questioning from the bench as proof that he is a hard-liner. It's a non-sequitur: there are plenty of liberal appellate judges who are equally pushy. Or take the discussion of Ledbetter, which Toobin paints as nothing more than an example of Republican hostility to victims of discrimination, with no explanation why Alito's stated reasons for his ruling should be dismissed as a pretext for Alito's politically preferred outcome. Bottom line -- the article strikes me as candy for well-educated Obama voters, itching to be told how right they are to dislike Roberts.

Darren Lenard Hutchinson said...

Wow, Mark - what a "different" review than what I had already heard. Regardless, isn't it true that ideology impacts Roberts? I love asking tough questions; just ask my students. So, that's not a problem

Mark G said...

Of course; judges' thinking, like everyone else's, is saturated with assumptions that (for thiking people) inevitably ripen into ideology. 95% of the assumptions are shared and so go unnoticed.

As you said, ideology is not inconsistent with honest, principle-based judging. We should confront the propagandists who say otherwise -- who suggest that "ideology" proves the nominee can't be trusted to follow the law as established by statute and precedent. On the other hand I do think it is fair for either side to ask the nominee questions about his or her ideological bent and how they would deal with settled rules that are in tension with that ideology. And of course it is fair to explore a judge's prior decisions that seem to run roughshod over established principles, and thus suggest that the judge is the bad sort of ideologue.

Anonymous said...


As a fellow U of P alumnus, I want to know who you would have picked for the Supreme Court. I would have preferred someone more in the mold of a modern day female Louis Brandeis. I guess a Gay Rights advocate would come closest in terms of civil rights issues. Clearly someone worldly, which Sotomayor is, is called for. Also someone who is concerned with the economic and social crisis we are facing today.

Darren Lenard Hutchinson said...

It is really difficult to say who would interest me. I like Sotomayor, and I think she will do a great job. In terms of academics, I think that Lani Guinier, Reva Siegel, and Pam Karlan are intellectual powerhouses.

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