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Debate Club

How should the Senate provide its Advice and Consent?

Erwin Chemerinsky and Brannon P. Denning debate.

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The Constitution gives the president the power to appoint justices to the Supreme Court, with "advice and consent" from the Senate. To some, this advice should be limited to a vote, but others say that it demands questioning everything from the nominee's judicial temperament to his politics and legal ideology.

A contentious confirmation battle looms about the nomination of John Roberts. How should the Senate provide its "advice and consent"?

Erwin Chemerinsky is Alston & Bird Professor of Law at Duke University School of Law. Brannon P. Denning is Associate Professor at Cumberland School of Law.

Chemerinsky: 7/25/05, 09:00 AM
Brannon, I very much look forward to our discussion this week.

Before the Senate confirms John Roberts to replace Sandra Day O'Connor it must learn what he believes on key issues such as reproductive choice, affirmative action, campaign finance, and the separation of church and state. A refusal to answer questions, so that his views remain unknown, should be the basis for a denial of confirmation, including, if necessary, by a filibuster.

First, the Senate owes no deference to the President's pick for the Supreme Court or any federal bench; it has an independent duty to decide whether a nominee should have a lifetime appointment to the high court. The framers of the Constitution deliberately created a process where two branches of government have to be involved in almost every major action, from declaring war to enacting a law to putting a person in prison. The same is true of judicial selection where the Constitution requires Senate approval of nominations. Over the course of the 19th century, approximately 20 percent of all presidential picks for the Supreme Court were rejected by the Senate, and during the 20th century, 10 percent of presidential nominees were not confirmed.

Second, evaluation of a candidate must include his or her ideology, as well as qualifications and judicial temperament. Every president since George Washington has looked to ideology in picking federal judges. Likewise, so has the Senate considered the views of the nominee in deciding whether to confirm. For example, George Washington's pick to be the second Chief Justice of the United States, after John Jay resigned, was John Rutledge, an Associate Justice. But the Senate rejected him because they disliked his views concerning the United States being neutral in the war between England and France.

In the 20th Century, the Senate rejected John Parker in 1931 because of his anti-labor views, Clement Haynsworth and Harold Carswell in 1969 because of their conservative ideology, and Robert Bork in 1987 because of his narrow view of constitutional rights, including privacy and abortion rights.

The reality is that a person's ideology matters greatly in how he or she will rule as a Justice. In interpreting broadly written constitutional phrases, Justices have great discretion and how they rule is often very much a product of their views.

Third, if an individual does not have a written record, the only way to learn his or her views is to require answers to questions. For example, less is known about Roberts than many other individuals who were on the reported short list that President Bush was considering to replace Justice O'Connor. But the absence of a paper trail should not be interpreted as a lack of views on Roberts' part. Nor should it be taken to mean that the Senate must confirm Roberts based on ignorance.

A nominee should not say how he or she vote on a particular issue because obviously that will be a product of the specific case and the arguments presented. But it is absurd to pretend that nominees do not have views on crucial constitutional issues of the day, such as abortion rights, affirmative action, gay rights, and separation of church and state. Roberts should be asked in detail his philosophy of how the Constitution should be interpreted. Is its meaning fixed and unchanging, or is it a living Constitution? Should the Court protect rights not specifically enumerated, such as privacy?

In no way does it compromise judicial independence or impartiality to require nominees to answer such questions. Indeed, just a few years ago, Justice Antonin Scalia, writing for the court, expressly held that it does not threaten judicial neutrality for candidates for elected judicial office to announce their views on disputed legal or political issues. The same is true of appointed positions, like the Supreme Court. Nominees have views and they matter greatly. There is nothing gained by pretending otherwise.

Denning: 7/25/05, 07:10 PM
Erwin, it is a privilege to be able to discuss these issues with you this week.

I wanted to begin by noting the areas of agreement between us. Like you, I agree that a president is not entitled to any particular deference regarding a particular Supreme Court nominee (pace Richard Nixon, who argued otherwise, as did some in the Reagan administration during the Bork hearings). I believe that senators are free to vote against a nominee for any reason, including a belief that a particular nominee's addition to the court would be harmful, that a nominee is unqualified, or even because a senator disagrees with a nominee's "ideology." To decide whether a nominee is worthy of confirmation or not, senators need information, some of which comes from the hearings, as well as from the extensive background investigations nominees undergo. A nominee's views on constitutional issues of national import are fair game for questioning from the Senate Judiciary Committee. I think that a nominee may refuse to answer particular questions, but should not be surprised if one or more senators holds his reticence against him.

However, as I am sure you would agree, it is often quite difficult to answer constitutional questions in the abstract. Indeed, you wrote that "[a] nominee should not say how he or she [would] vote on a particular issue because . . . that will be a product of the specific case and the arguments presented." But it seems to me difficult to relate abstract views "on crucial constitutional issues of the day" to a nominee's likely performance in the context of a specific case. Thus, recent Supreme Court confirmation hearings have a Kabuki quality about them. Senators ask vague, abstract questions; nominees attempt to respond in a manner calculated to communicate the least information without offending the questioner. As a result, recent nominees to both the Supreme Court and the courts of appeals all admire Justice John Marshall Harlan II, judicial restraint, and all agree that Korematsu, Plessy v. Ferguson, Lochner, and Dred Scott are the worst Supreme Court decisions ever handed down. And senators have demonstrated a reluctance to be satisfied with nominees' attempts to differentiate their personal views on a matter, like abortion or gay rights, with their acceptance of the court's decisions in these areas as a matter of law. Some senators, in fact, have even shown a reluctance to accept the distinction you proffer between stating one's views and not committing one's self to declaring an intent to vote one way or the other.

Thus, I'd ask what kinds of questions would you propose that could plumb a nominee's views without asking him to commit, in advance, to particular positions? And what sorts of answers should be seen as disqualifying?

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Chemerinsky: 7/26/05, 09:14 AM
Brannon, I am glad that you began by identifying our areas of agreement, especially that a nominee's ideology should matter in the confirmation process. The question then is how can the Senate learn a person's views, especially when he or she has no written record about them?

My position is that it is completely appropriate for the Senate to ask detailed questions about a person's views on issues, including those that will come before the Supreme Court, and to refuse confirmation to any nominee who refuses to provide full answers. The only thing that should be off-limits is asking the nominee how he or she will vote in a specific pending case. Thus, it is acceptable to ask whether Roe v. Wade should be overruled, but not how will you vote in the case of Smith v. Jones now pending on the Supreme Court's docket. It may be a fine distinction, but if so, I'd err on the side of more information rather than less. Once we agree that a person's views matter in how he or she likely will act as a justice and that the Senate can consider these views, then the Senate must have a way to known them.

You ask what questions are appropriate. Here are some examples, drawn from a longer letter that I co-authored with law professors William Marshall and Michael Gerhardt:

*Do you think it is appropriate for the Supreme Court to recognize rights that are not expressly written in, but derive from the Constitution?
*Is there a particular method of constitutional interpretation to which you subscribe? Do you believe that the meaning of the Constitution was fixed when it was adopted and unchanging except by amendment?
*How much deference do you believe should be given to precedent and when is it appropriate to overrule precedent?
*What are your views on substantive due process? Do you believe that there is a constitutionally protected right to privacy?
*Do you agree with the tiers of review currently employed under equal protection and the way they have been applied?
*What do you believe is the appropriate scope of sovereign immunity and Congress's power in relation to it?
*What do you believe is inappropriate about "judicial activism"?

These, of course, are just examples. The goal must be to learn as much as possible about a person who will have a lifetime appointment to the nation's most powerful court.

Finally, you ask what answers would be disqualifying. To give one example: I believe that any nominee who rejects substantive due process rights, including privacy rights, should not be confirmed. This, in part, is why Robert Bork was appropriately rejected by the Senate in 1987.

Denning: 7/26/05, 05:14 PM
At first glance, I thought that the questions you helped draft were too broad to elicit much information, but as I read them again, they all seem to raise issues that are perennially before the court. Moreover, they don't seem particularly loaded (though some of the italicized introductions to the questions are rather suggestive). I think that discussions of substance—as opposed to questioning Judge Roberts about whether and to what extent he ever attended a Federalist Society event—would be a welcome change. And again I agree that any nominee ought to be willing to discuss such issues, especially when she can do so without appearing to prejudge cases.

I suspect, however, that more of the questions during the confirmation hearings will look like these given to Judge Roberts by Senator Schumer. Senator Schumer's questions seem aimed not at eliciting useful information, but rather at trapping the nominee into associations with controversial persons, positions, or cases. One question reads: "When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia's opinions, or Justice Ginsburg's?" Another asks: "Do you agree with the reasoning in Bush v. Gore? Why or why not?"

Senator Schumer is entitled to ask whatever questions he wishes; he is free to vote against Judge Roberts's confirmation if he's not satisfied with his answers. I suggest, however, that questions such as his provide little information or insight into a nominee or his fitness for a seat on the Supreme Court. The questions (some of them quite silly, e.g., "[w]hen does speech cross the line between constitutionally protected free speech and slander?") seem instead designed to give the interlocutor a reason to brand someone with the dread "extremist" label, though most constitutional cases present tough questions about which reasonable non-extremists (like you and me!) might differ.

In addition to their "when-did-you-stop-beating-your-wife" tenor, Schumer's questions are incredibly backward-looking—a point made at lunch by a colleague of mine who had read Linda Greenhouse's article in the last Sunday's Times. Greenhouse pointed out that if confirmed, "[b]y the time [Roberts] begins his second or third decade on the court, today's issues may well have faded from the screen" but that the "issues of tomorrow," which have begun to preliminarily surface on the court's docket, "have been all but overlooked." Greenhouse identifies a few areas—presidential powers, the effect of technology on personal privacy, and property rights in light of Kelo. By contrast, Senator Schumer's list has nine questions about the scope of congressional power under the Commerce Clause or about Lopez and Morrison; he asks four questions about Bush v. Gore; and six questions seek information about Roberts's attitude toward "judicial activism."

Greenhouse's article got me thinking, and I came up with a few questions that I'd like to see asked during Roberts's confirmation hearings.

* To what extent and under what conditions, if any, should the Supreme Court look to foreign law for guidance in interpreting the U.S. Constitution?
* What role should stare decisis play in constitutional adjudication?
* To what extent can the President make foreign policy independently of Congress, and can the President's foreign policy—not otherwise undertaken pursuant to congressional authorization or embodied in a treaty or executive agreement—preempt state and local laws that express a different policy?

Are there any cutting edge issues that you'd like to see brought up at the confirmation hearings? Am I being too tough on Senator Schumer?

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Chemerinsky: 7/27/05, 09:10 AM
It is important to note that at this stage of the debate, Brannon, you and I are agreeing about the ends to be served in the confirmation process and are focusing on the means for accomplishing them. We both agree on the following: (1) Ideology is an appropriate basis for evaluating nominees for the Supreme Court and the Senate should refuse to confirm those who have views that it deems unacceptable. (2) The nominee's views need to be known, including by requiring answers to detailed questions about his ideology.

Our focus now is on what questions are most likely to be successful in gaining useful information. In my last post, in response to your request, I suggested several questions that might be asked of John Roberts. Brannon, you don't disagree with these questions, but rather make two main points about them. First, you argue that questions should be more forward looking than backward looking. I think that questions need to be both forward and backward looking. One way to find out Roberts' views is to ask him about cases that have already been decided and whose opinion most reflects his views. For example, I think he should be asked who he most agreed with in Hamdi v. Rumsfeld, where the various opinions took four different approaches as to whether American citizens can be held as enemy combatants. The Hamdi case is over. Hamdi was released from custody. There is no reason Roberts should not tell us his views about this case and this issue.

Similarly, in the area of the Establishment Clause, there are a range of approaches. Which most reflects Roberts' views? Likewise, I think it completely appropriate to ask his views about federalism as a limit on congressional power by focusing on previously decided cases. Is his view of federalism more like the majority or the dissent in Lopez or Morrison?

Brannon, you are correct that there will be new issues in the years and decades ahead. But the goal is to understand Roberts' views of issues that can be identified now so as to determine if he is so far out of the mainstream that he should be rejected.

Second, you suggest some questions. I don't really disagree with asking the ones you propose, but I don't think the suggested questions will be very useful. The question concerning Roberts' views about using foreign law in decisions concerning the meaning of the United States Constitution, for instance, probably won't elicit much. The reality is that foreign law is rarely mentioned by the Supreme Court and even then not as the basis for the decision. The court primarily has used it in interpreting the Eighth Amendment's cruel and unusual punishment clause, which it long has said is informed by "evolving standards of decency." So the court mentioned foreign practices in declaring unconstitutional the death penalty for the mentally retarded (Atkins v. Virginia) and for crimes committed by juveniles (Roper v. Simmons). I think Roberts should be asked this, I'm just skeptical how much the answer will reveal.

Likewise, I agree that Roberts should be asked about role of precedent, but his answer surely will be predictable and unhelpful: He will say that he believes precedent should be followed unless it should be overruled. That's what any nominee would say. No nominee will ever disavow overruling precedent, but none will deny the importance of stare decisis.

Finally, as for the question about the President's power to engage in foreign policy activity independent of Congress, I think that the question must be much more concrete, and less abstract, to generate useful information.

I do not mean to be overly critical or to suggest my questions are any better. But I do think that the goal must be to formulate questions that will gain as much useful information from Roberts as possible. My fear, at this stage, is that the Senate will confirm him even if he refuses to answer almost all substantive questions. I think Senate Democrats should make clear that they will filibuster if they don't get answers. At this point, that doesn't seem where they are headed.

Denning: 7/27/05, 05:12 PM
Your last post crystallized the purpose of confirmation hearings: "to determine if [the nominee] is so far out of the mainstream that he should be rejected." It does, however, beg the question: Where is the mainstream in American constitutional law?

It seems to me that the "mainstream" can encompass positions on constitutional questions that can be conceived of as "liberal" or "conservative," as those notoriously imprecise terms are usually understood. I think that there are excellent arguments on both sides of many questions that end up before the Supreme Court; as I am sure you do, I regularly explore them in class with my students. Thus, to take two issues raised in your list of questions, I wouldn't characterize either the majority or the dissent in Lopez or Morrison as out of the mainstream; moreover, it's worth remembering that the portion of Boerne v. Flores's limiting congressional power under section five of the Fourteenth Amendment was unanimous.

As a result, I do not think it an appropriate occasion for a filibuster if some senators are unhappy that Roberts evinces (or seems to evince) attitudes that would put him within the "conservative mainstream." While I believe that a senator has every right to disapprove of a President's nominee to the court based on the answers the nominee gives or the information the senator has about the nominee, that disapproval should be demonstrated by voting "no" on the nominee. I do not, however, think that a minority of senators ought to exercise a filibuster simply because they would prefer the President choose someone more to their liking.

Judging from past confirmations, I think that senators understand —particularly if theirs is not the party in power—that the President's nominee might not be their first choice; and nominees understand that they are less likely to have trouble if answer as inoffensively as possible questions senators pose. This mutual understanding of the process, though, tends to produce the Kabuki nature of the hearings: senators sparring with cagey nominees fearful of unintentionally passing into darker regions of "out-of-the-mainstream" with careless answers. Only during the Bork hearings did the Senate stumble upon a nominee eager to discuss his views candidly—so candidly, in fact, that his later assurances that his academic musings wouldn't trump his fidelity to settled law were so easily lampooned as disingenuous.

Had Justice Thomas been, shall we say, a bit more forthcoming about his legal philosophy at his confirmation hearings, I suspect that the out-of-the mainstream charge would have had a good chance of sticking. Nevertheless, I enjoy reading his opinions, especially when I disagree with them.

My bet is that Roberts will be "conservative" in ways that, say, David Souter turned out not to be. But I'm also convinced that he will not successfully be portrayed as holding out-of-the-mainstream views—at least according to where I'd locate the center of American constitutional law.

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Chemerinsky: 7/28/05, 09:08 AM
Brannon, your last post makes clearer the areas of our disagreement.

First, should the Senate refuse confirmation of a nominee because of his or her views? Every president, since George Washington, has looked to ideology in picking federal judges. Likewise, so has the Senate considered the views of the nominee in deciding whether to confirm. For example, George Washington's pick to be the second Chief Justice of the United States, after John Jay resigned, was John Rutledge, an Associate Justice. But the Senate rejected him because they disliked his views concerning the United States being neutral in the war between England and France. In the 19th century, over 20 percent of presidential nominees for the Supreme Court were rejected, and in the 20th over 10 percent, almost all because of their ideology. The reality is that a person's ideology matters greatly in how he or she will rule as a justice. In interpreting broadly written constitutional phrases, justices have great discretion and how they rule is often very much a product of their views.

Second, is a filibuster appropriate if the Democrats deem John Roberts' views out of the mainstream, or if he refuses to answer questions about his views? Absolutely. Here you disagree saying: "While I believe that a senator has every right to disapprove of a president's nominee to the court based on the answers the nominee gives or the information the senator has about the nominee, that disapproval should be demonstrated by voting 'no' on the nominee. I do not, however, think that a minority of senators ought to exercise a filibuster simply because they would prefer the President choose someone more to their liking." The Senate's rules long have provided for the filibuster. Republicans used it to block President Lyndon Johnson's nominations for the Supreme Court and President Clinton's selection of Henry Foster to be Surgeon General. Brannon, you offer no reason why Democrats are limited to voting no and cannot use the procedural device which is almost as old as the Senate itself. Moreover, you trivialize this by saying that the Democrats would be filibustering just because they "would prefer the President choose someone more to their liking." Democrats should filibuster if they believe that John Roberts has views out of the ideological mainstream and that would be a threat to civil liberties and civil rights.

Third, what set of views would make Roberts, or any nominee, unacceptable? I believe that Robert Bork was properly decisively rejected by the Senate in 1987 because of his view that the meaning of the Constitution is limited to what the framers intended and thus his rejection of constitutional protection for privacy and for women under the equal protection clause.

Any nominee who rejects constitutional protection for privacy, including abortion rights, should not be confirmed. To me, this is no different than a nominee in the 1950s who would have voted to overrule Brown v. Board of Education. Any nominee who believes, as Clarence Thomas does, that the Establishment Clause does not apply to state and local governments, should be rejected. Any nominee who believes, as Clarence Thomas does, that Congress cannot regulate commerce based on substantial effects, and that therefore every federal environmental law and most federal criminal and regulatory laws are unconstitutional, should be rejected. These are just a few examples, but they illustrate what would make a candidate so far out of the ideological mainstream as to warrant rejection, by filibuster if necessary.

Denning: 7/28/05, 04:08 PM
In 1997 you co-authored an excellent law review article on the filibuster. You argued there that "[t]he modern filibuster is simply a minority veto.... It is not part of a long Senate tradition and history alone cannot justify it." You went on to argue that while not unconstitutional in and of itself, Senate Rule XXII, which essentially entrenches the filibuster, was unconstitutional because it prevented a majority of future senators from changing it if they wished. What changed your mind, both about the filibuster and about Rule XXII?

Leaving aside those interesting questions for a moment, I could imagine extreme circumstances in which a nominee was so unsuited for a place on the court that a filibuster was necessary, but it seems that the Senate's history of rejecting unsuitable nominees, to which you allude, suggests that in such cases a filibuster will be unnecessary, because a majority of senators will see that the nominee is unfit.

The question then becomes this: When is it appropriate for a minority of senators—perhaps as few as one—to prevent an up-or-down vote on the nominee by filibustering? The common response is that a filibuster would be proper if the nominee's "views are out of the mainstream." Again, that raises the question that I posed yesterday: Who and by what standard is the "mainstream" measured? I suppose that, as a practical matter, the 60th senator, whose vote is needed to end a filibuster under the Senate's rules, gets to determine what is or is not mainstream. But if one senator thinks that the Constitution requires workers to own the means of production, and the nominee disagrees, is that senator's decision to pronounce the nominee "out of the mainstream" and filibuster something that should be celebrated, instead of criticized? If the examples you gave—maintaining Roe, viewing the Establishment Clause as applying to states as well as to the federal government—then Roberts, or any other court nominee, is unlikely to be successfully characterized as having beyond-the-pale views. Even if he believed that Roe should be overruled or that the Establishment Clause doesn't bind the states, he's probably savvy enough not to say so publicly (which raises questions about the efficacy of Senate questioning).

As for my trivializing a "procedural device which is almost as old as the Senate itself," I'm not so sure that the filibuster, particularly as it has been wielded in recent years by members of both parties, isn't overdue for some rough treatment. As you noted in your 1997 article, the filibuster has had a checkered history; to use your example, it was regularly invoked by southerners to prevent consideration of civil rights legislation. I think that it can be lumped in with other, less visible tools, like the "hold" (which permits individual senators to prevent consideration of nominations or legislation) or the "blue slip" (which once required home state senators to approve all judicial nominations from their home state, even those nominated for positions on the courts of appeals whose jurisdiction spans several states), that have contributed to the pathogenic confirmation process whose roots stretch back at least to Republicans' desire to avenge Robert Bork's rejection (which, in turn, was probably partial payback for the hounding of Abe Fortas when he was nominated to replace Earl Warren as Chief Justice).

My solution would be to reduce revise the Senate's rules so that the number of votes needed to invoke cloture would reduce over time so that eventually a majority could end a filibuster. This would permit a full airing of views, or allow for the gathering of additional information, but not completely block an up-or-down vote on a nominee— be it for a judicial position or an executive branch position.

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Chemerinsky: 7/29/05, 08:04 AM
I am delighted you read my law review articles. As I think you can attest, law professors often have the sense that law review articles sit forever unread, gathering dust on musty shelves. Unfortunately, though, you mischaracterize the position Catherine Fisk and I took in our articles on the filibuster. We concluded that there is nothing unconstitutional or illegitimate about use of the filibuster. We did express our view that the Senate Rule preventing its change without a two-thirds vote has serious constitutional problems. But we also said that if it is to be changed it must in accord with Senate Rules or via litigation. The so-called "nuclear" option is illegitimate because it is changing the Senate's Rules without following the Rules.

At this stage in our debate, Brannon we're disagreeing over two points. First, should the Democrats filibuster a nominee whose views are out of the ideological mainstream or who will not answer questions about his or her views? You say a filibuster would be appropriate only in "extreme circumstances" that would never be present. I disagree. The Senate should not confirm a nominee who it believes would have a significant adverse effect on civil liberties or civil rights, or who refuses to answer questions so that his or her views remain unknown. This has been the position I have taken throughout our week long exchange.

One way in which the minority party can prevent confirmation is through the filibuster. I believe that it was completely appropriate for the Democrats to use the filibuster to block, as they did, the confirmation of very conservative nominees for the federal courts of appeals like Janice Rogers Brown, William Pryor, and Carolyn Kuhl. Likewise, it would be appropriate to block a very conservative nominee for the Supreme Court. There is nothing impermissible or illegitimate about the use of the filibuster. Nor do I share your view that the rules concerning the filibuster should be changed to eliminate the filibuster for judicial nominations. In a system based on checks and balances, the filibuster is an essential check.

The second question is what would be a sufficient basis for the Senate denying confirmation to a nominee? Contrary to your implication, I do not believe that Robert Bork was rejected as payback for the Republican's blocking Abe Fortas' confirmation almost two decades earlier. Bork was rejected, as he should have been, because he had extreme views about the meaning of the Constitution, including rejecting constitutional protection for privacy rights, believing that the equal protection clause did not apply to gender discrimination, and that First Amendment protects only political speech. I believe that any nominee with these views should not be confirmed.

The Senate thus must know the views of the nominee. The nominee should be asked his or her views on these issues. A nominee who refuses to answer, and who has no record on these issues, should be rejected, including by filibuster.

To make this more specific and less abstract, everything that is so far known about John Roberts' views about privacy and abortion is enormously troubling. He signed briefs and argued to the Supreme Court that Roe v. Wade should be overruled. He should be rejected unless he can persuasively explain that those are not his views. As I said earlier in this discussion, a nominee in the 1950s who wrote briefs urging the overruling of Brown v. Board of Education should have been deemed unacceptable unless he or she could demonstrate that those were not his views. I believe that constitutional protection for reproductive choice, and more generally for privacy, is so basic that any nominee for the Supreme Court who does not accept them should be rejected.

Denning: 7/29/05, 06:36 PM
I have enjoyed our exchange this week immensely and hope it has been entertaining and informative to the readers.

As to the question of the legitimate avenue for changing the filibuster, I'm not sure I understand why having a court strike down Rule XXII on constitutional grounds is fine, but senators trying to change the rule themselves is "illegitimate" because not following the rule (a rule that you still seem to regard as constitutionally-suspect) in changing it is to seek change "in an illegitimate manner . . ."

Second, you write that "[i]n a system based on checks and balances, the filibuster is an essential check." I would regard the "check" on presidential appointments as the requirement of Senate confirmation. I don't think it self-evident that the minority party in the Senate is also entitled to a check-within-a-check such as the filibuster, especially when the communal norms that restrained its operation somewhat in the past have broken down over the last several years. This, I suppose, is where our views differ fundamentally. Like it or not, the Republicans are in control of both the White House and the Senate. Judicial nominees will inevitably reflect more their political preferences, just as, had Kerry won the White House and had the Democrats retaken the Senate, one could have expected nominees in the "mainstream left."

Finally, I hope that Judge Roberts' judicial work product is examined as well as his Justice Department memos. To me that would say much more about the qualities that he would bring to the court than would memos or briefs that he wrote as an advocate on behalf of administrations that made overruling Roe a priority. I will be extremely surprised if he shows up for his confirmation hearings and gives voice to the positions that Judge Bork advocated over the years. Even on Roe, I am more sure than you seem to be that Roe is a more or less permanent feature of our legal landscape. I think even many Republicans recognize that. The debate seems to have shifted from the right qua right to the margins: restrictions on late-term abortions, whether and to what extent parents should be involved in their minor children's decisions to abort, and so on.

Passing on a nominee who will have a say in some of the most important legal issues in the country would be an awesome responsibility. I feel sure that both the members of the Senate judiciary committee as well as senators generally take this responsibility seriously. I hope that we can look forward to an interesting, informative set of confirmation hearings that will give all of us a better idea of who Judge Roberts is and what his views are. In the end, I sincerely hope that no senator will find it necessary to filibuster the nomination. In 1994, Yale professor Stephen Carter wrote a book entitled The Confirmation Mess; a decade later Professor Mike Gerhardt wrote that the proper analogy was to "war." We'll have to think of a more devastating descriptor if this nomination fails due to a filibuster.

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"It's one thing for a President to nominate his ideal candidate for the Supreme Court," writes Mark Tushnet. "It's quite another to get that person confirmed." Also, Kate Marsh on the Estrada filibuster and the politics of confirmation and Wendy Long debates Stephen B. Presser about the principles at stake in this nomination.

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