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Debate Club
DEBATE CLUB 9/12/05

Can Liberals Oppose Roberts?

Mark Tushnet and Jeffrey Rosen debate.

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Since his nomination for a seat on the Supreme Court, groups of all political stripes have scrutinized Judge John G. Roberts, Jr.'s record. While almost all conservatives have found Roberts an acceptable candidate, liberal responses have varied fundamentally. Some call for the Senate to reject him, but others argue that his record lacks telltale signs of ideological extremism that would justify his defeat.

Is there a principled basis for Democrats to oppose Roberts?


Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law School. Jeffrey Rosen is Professor of Law at George Washington University School of Law.

Tushnet: 9/12/05, 09:18 AM
Why on earth should a Democratic senator vote to confirm John Roberts's appointment?

There are going to be a lot of qualifications, but the basic argument is simple: The Constitution makes the Senate an equal partner of the president in the appointment process. This means that senators are certainly entitled to, and should, canvass the same range of issues that go into the President's decision to choose a particular nominee out of the entire universe of possible nominees. We know, from studies by political scientists and ordinary common sense, that these days presidents take a nominee's judicial philosophy into account in making that choice—in the most minimal sense that the president does not choose someone who has a judicial philosophy with which the president disagrees.

Neither should a senator.

Specifically, the facts that a nominee has a judicial temperament, the intellectual capacity to perform the job, and a judicial philosophy that is not "out of the mainstream" are not enough to outweigh the fact that a senator disagrees with that judicial philosophy. The equal status of the president and the Senate in the appointment process means that the mere fact that the president has chosen a person with some identifiable judicial philosophy should carry no weight in a senator's thinking. What matters is the senator's view of the person's judicial philosophy, not the president's.

Now, some of the qualifications. First, history: My argument takes as one of its factual premises the characteristics of today's appointment process. Those characteristics differ, in some respects, from practices several generations ago. So, for example, the fact that Herbert Hoover nominated Benjamin Cardozo doesn't count against my argument, because the appointment process was different in the 1920s. (There might be more to say here, but I'll hold off to see if you have other historical objections, Jeff.)

Second, politics in the large: A senator should take into account whatever effects a vote based on simple disagreement with a nominee's judicial philosophy is likely to have on the overall system of judicial appointments. So, for example, it is one thing to vote against a nominee because of simple disagreement with his judicial philosophy, another thing—requiring a different justification—to filibuster a nominee on that ground.

And, more important, it is one thing to vote against a nominee of a president from the other party when you are in the Senate minority, another to do so when you are in the majority. If a Republican president faced a senate with a majority of Democrats, a Democratic senator would have to have more than simple disagreement with the nominee's judicial philosophy to justify a vote against confirmation. The senator would have to assess how much he or she disagreed with the nominee's judicial philosophy before deciding how to vote: Disagree enough, and a vote against confirmation is justified, but not if the disagreement is smaller. Incidentally, even on this standard, at this moment—before the confirmation hearings begin—I doubt that a democratic senator has enough information even to measure how much he or she disagrees with Judge Roberts's judicial philosophy.

Third, politics in the small: Individual democratic senators might have specific political reasons for not voting against Judge Roberts. As politicians, they will, and should, take those reasons into account—but they should do so within a framework of thinking about the issue that takes seriously the Senate's equal role in the appointment process. Similarly, there may be internal Senate norms of reciprocity that counsel against a negative vote. I'm skeptical about whether such norms exist, or whether they are strong enough to matter (that is, whether reciprocity is actually likely to be forthcoming should circumstances change and Democrats require reciprocity from Republicans). But, I'm an outsider to the Senate. All I can say is that there are issues of principle that should matter as well.

One last point, and I'm done for now. I've heard the argument that Democratic Senators should vote to confirm Judge Roberts so that they will have some credibility when or if they oppose some later nominee because the nominee is, from their point of view, "worse" than Judge Roberts. Mostly, I'm puzzled about the argument. Voting to confirm Judge Roberts conveys no information about where the line between acceptable and unacceptable is, and so a democratic senator who votes to confirm Judge Roberts can't immunize himself or herself from the charge of inconsistency—that is, can't establish credibility—simply by pointing to the Roberts confirmation vote. But, in contrast, voting against Judge Roberts's confirmation does identify the line the Senator is drawing: Anyone "worse" than Judge Roberts will not get this senator's vote either.

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Rosen: 9/13/05, 09:11 AM
After the long warm-up act of opening statements on the first day of hearings, I have to confess that I've never been all that excited by abstract pronouncements about what standard it's legitimate for senators to apply in considering a Supreme Court nominee. Every confirmation hearing is a unique blend of political and constitutional considerations; and in the end, senators always vote for or against a nominee based on the particular political dynamics of the individual nomination. The debate about confirmation standards that we heard today is essentially throat clearing that will become more or less moot once the hearings begin in earnest tomorrow.

That said: I think your proposed standard—that a senator should not vote to confirm a nominee who has a judicial philosophy with which he substantially disagrees—is impractical and politically unwise. In every confirmation hearing, the president and a good chunk of the Senate—whether it's the majority or minority—are going to come from different parties. The convention in Supreme Court nominations, even during the increasingly polarized post war era, has been that most nominees are confirmed by relatively strong bipartisan majorities—more than two thirds seems to be the norm. Only a few nominees who threaten to transform the law in radical ways—such as Robert Bork or Clarence Thomas—have provoked close votes in the past. Your proposed standard—even with the various qualifications—would result in more or less even partisan divisions on most Supreme Court nominees and lower court nominees.

This would be bad for the court and bad for the country, since it would contribute to a political atmosphere in which justices identify with the ideological extremes of the country, rather than trying to represent the constitutional center. It would lead senators to vote against nominees like Roberts who are clearly far better, smarter, more able, and less extreme than most of the likely alternatives. And it would be especially bad for Democrats who, in an age of partisan gerrymandering in the House, with its spillover effects in the Senate, may win back the White House long before they win back the Senate.

I also think it's impractical for senators to refuse to confirm nominees whose judicial philosophy they don't share in most respects because most senators don't have coherent judicial philosophies. Even using the various constitutional labels that we tend to apply to Supreme Court justices—majoritarians, strict constructionists, traditionalists, pragmatists, natural law enthusiasts on the left and the right—it's hard to identify a single senator who subscribes to these schools with any degree of consistency. That's a recipe, if your standard were applied, for straight line party line votes. It seems especially odd for someone who believes, as (I think) you do that judicial review should be radically scaled back and that the constitutional interpretation should be removed from the courts to urge senators to vote against any nominees whose views they don't embrace in most respects. Why not instead urge Senators to confirm nominees who will let most constitutional questions be settled in the political branches—like, for example, John Roberts?

What standard would I urge on the Senate? As I said, I don't think the debate about confirmation standards is all that interesting, nor do I imagine the senators will care much about it during the days ahead. Nevertheless, if forced to pick, I think the standard Senator Schumer embraced in his opening statement today isn't bad: is the nominee within the mainstream of legal thought, or is he an ideologue who seeks radical change in the law. It's easy to ridicule the mushy mainstream standard; but the truth is that the distinction between ideologues and mainstream judges could help the Senate distinguish between deferential conservatives like Roberts and more radical conservatives like Clarence Thomas (by radical, I mean only the descriptive claim, that Thomas wants to overturn lots of precedents, strike down lots of federal laws, and transform the law according to a pre-determined judicial ideology, rather than taking each case as it comes.)

Another thing I think your standard misses is the question of judicial temperament. It's hard to define, but it matters a lot, especially for the Chief. Being judicious, likeable, and having a capacity to compromise can make the difference between a successful chief and a failure. Roberts is clearly funny, smart, likeable, and very bright, but it's not clear from his record whether he has the capacity for flexibility and moderation that characterize the most successful chiefs. My suspicion, before the hearings begin, is that he does, but that's a question well-worth exploring in the hearings. Wouldn't questions about Roberts's temperament and judicial philosophy be more revealing for the Senate and the country than questions about whether Herbert Kohl or Tom Coburn happen to agree with every aspect of his judicial philosophy?

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Tushnet: 9/14/05, 09:18 AM
Because there are, as you suggested, more important things than a Supreme Court nomination—like the birth of one's first grandchild—I'll keep this relatively brief, reserving the possibility of taking up some other matters in the next entry.

I want to focus on one aspect of your position, which manifests itself in several ways. I think that a Democratic senator will—and as a matter of constitutional principle, should—take a position on the nomination that takes politics, both in the large and in the small, into account. But—and here I think we may differ—I think that another component of the decision should be a principled position on the senator's role in the constitutional scheme.

Here are some implications I draw from my blended political-principled position. First, it doesn't seem to me that there's any mileage to be gained from saying that senators aren't likely to be particularly good at assessing a nominee's judicial philosophy. Nobody thinks that the president, as an individual, is likely to be good at that either. (My point here is institutional—about all presidents—and not personal, about the present one.) If we agreed that neither the president nor a senator should take judicial philosophy into account, maybe I'd end up agreeing with your position. But, it seems fanciful to think that presidents (at least in the modern era) don't consider judicial ideology. They have staffs that help them assess the candidate's position—just as senators do. At the end of the day, it seems to me, a senator is in just as good a position to assess a nominee's judicial philosophy as the president is—which is all my position requires.

Second, I'm extremely skeptical about a principled position that a senator should evaluate only the nominee's judicial temperament and his or her ideology only to the extent of determining that the nominee's judicial philosophy lies within "the mainstream." It's not so much that the idea of a mainstream is mushy, but rather that there's almost certainly significant disagreement over which positions are within and which without the mainstream. In particular, there's no guarantee that a senator's relatively generous view of how broad the mainstream is will be reciprocated by other senators. "The mainstream" standard is a prescription for recriminations and accusations of bad faith when senators disagree with each other on the question of the mainstream's breadth. My position, in contrast, allows senators to say exactly what their criterion is, and later disagreements are just that—disagreements, not betrayals of some implicit understanding about how broad the mainstream is.

Third, and related to this, I think Senator Schumer was on to something at an earlier point, when he argued—correctly, I think—that open consideration of judicial philosophy was likely to be better than the "mainstream" standard. Under the latter, if a senator has some nervousness about a nominee—or faces constituency pressure to oppose a nominee—the "mainstream" standard gives the senator an incentive to demonize the nominee: The only way the senator can explain opposition is to characterize the nominee as outside the mainstream. Again, my position doesn't have that implication. "I disagree" is different from, and milder than, "You're out of the mainstream."

Fourth, I confess that I don't see why polarized voting on judicial nominees is anything we ought to be particularly worried about—not that polarized voting isn't something to worry about, but rather that it's no worse when it happens with respect to judicial nominees than when it happens on other important public issues. Nor do I see any reason to think that Democrats who act in a non-polarized way on judicial nominations are likely to produce some reduction in polarized voting on other issues. So, it seems to me, you want them to give something up—a principled stance on the nominee's judicial ideology—for no gain in the overall tone of our politics.

Finally, I think you overlooked one of the qualifications I built into my principled position, under the heading "politics in the large." My position is that the principled position during a period of unified government properly differs from that during a period of divided government. In the latter, senators in the majority party ought to take the possibility of gridlock and breakdown into account, and should oppose nominees only if they disagree "too much" with the nominee's judicial ideology. (Now, if there's some reason to think that Republicans—to use your example—won't act in a constitutionally principled way, that's an indictment of Republicans, not of the principle.)

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Rosen: 9/15/05, 11:04 AM
Congratulations on becoming a grandfather—wonderful news. Like all debates over confirmation standards, I think ours isn't very illuminating in the abstract; and unhelpful as a precise guide for how a senator should vote in a particular case. To cut to the chase, here's where we both agree. Senators can, should, and will consider both judicial philosophy and judicial temperament in deciding whether or not to confirm a nominee. They can, should, and will blend politics and principle in making their decision.

I think Senators should continue the traditional bipartisan presumption of confirming smart, able, and judicious nominees, and should only vote against nominees with whose judicial philosophy they significantly disagree.

You want to flip the traditional burden of proof and think that senators should generally vote against any nominee with whose judicial philosophy they disagree even a little. And then you add a legalistic proviso: In an age of divided government, senators in the majority party should vote against a nominee from the opposite party only if they disagree with his judicial philosophy "too much."

I think your proviso is far too technical to constrain senators in meaningful ways. If Democrats make the mistake of a party line vote against the best Republican nominee they're likely to get when they're in the minority, Republicans will reciprocate by voting against any Democratic nominee on a party line vote the next time a Democrat wins the White House, even if Republicans still control the Senate. That may bring the government to a halt and make it extremely difficult for Democrats to get anyone decent confirmed to the Supreme Court.

So never mind the legalistic debate about standards of scrutiny. What you're really urging the Democrats to do is to jump off the cliff on which they're now poised. You want them to cast a completely self-indulgent, symbolic, and self-defeating vote of opposition, even though that vote will come back to haunt them in all future confirmation battles. For someone whose work is acutely sensitive to the political dimensions of constitutional law, this seems surprisingly impractical.

I find your embrace of the symbolic politics of opposition especially surprising, in light of your new book, A Court Divided, which I greatly admire. In that book, you correctly criticize Democrats for essentially having no coherent judicial philosophy—which I would have thought would make it hard for them to vote against any nominee whose judicial philosophy they don't share. And you also correctly suggest that the Supreme Court generally follows public opinion and provokes national backlashes when it doesn't. This suggests that the stakes aren't all that high in judicial confirmation battles—the court over time will generally do what public opinion demands. Why, then, bring the government and the confirmation process to a halt over entirely symbolic battles whose only tangible benefit is to provide emotional satisfaction to ideologically extreme interest groups whose positions have been rejected by the country and the generally moderate court? For all these reasons, I think it would be foolish for Senate Democrats to do what they may be on the verge of doing: voting against Roberts on a party line vote. I'm surprised and disappointed that you're encouraging this self-destructive folly.

So far, we've talked only about confirmation standards—a debate that, as I said, strikes me as academic. But I think also there's an affirmative case to be made for why Democrats should support Roberts: namely, that he isn't merely the lesser of evils but by far the best Republican nominee Democrats could reasonably expect—one whose judicial philosophy principled Democrats and Republicans should enthusiastically embrace. Roberts's judicial philosophy is one that I share (at times I thought you did, too)—namely, one of bipartisan restraint. He believes in a genuinely limited role for federal courts, and he thinks judicial power should be used to invalidate federal and state laws only when the arguments for invalidation are too strong to ignore. This philosophy of bipartisan restraint was originally associated with liberal justices such as Holmes, Frankfurter, and Byron White. It would be a substantive and political mistake for Democrats to cede it to conservatives, who rarely support it consistently.

I was reassured and heartened by Roberts's responses to questions about congressional power and judicial deference. He explicitly repudiated doctrinaire originalism and said he preferred a more pragmatic and flexible approach. He made clear that he does not subscribe to the doctrines that some conservatives call the Constitution in Exile and instead would take a more deferential attitude toward Congress. If Bush had nominated a conservative activist nominee—such as Janice Rogers Brown—or if he nominates someone like Brown the next time around—I think Democrats would be perfectly justified in voting no. But by opposing Roberts, the model of bipartisan restraint, Democrats will find it very difficult to make a principled case against a truly radical nominee the next time around. And I don't even want to imagine the troubles they will bring on themselves if President Hillary Clinton ever gets a Supreme Court nomination.

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Tushnet: 9/16/05, 09:07 AM
We obviously disagree about the political consequences that would follow if Democrats adopted my position. My view is that Republicans who "reciprocated" as you suggest would be blamed for causing a constitutional train-wreck, much as Newt Gingrich was for shutting down the government. But, frankly, I doubt that either one of us is a good enough analyst of politics to have much confidence in our judgments on this.

More important, I think you are—frankly—deluding yourself in thinking that you can infer a general posture of judicial restraint from anything Judge Roberts has said. His comments are like those of the Delphic oracle—one can read into them anything one wants. And, there are people who at least believe they have a very good sense of Judge Roberts's position—the conservatives in the administration, and most of those outside it, who have expressed no hesitation in their support of him. If you can't know what Judge Roberts thinks from what he's said—and I don't think you can—I'd draw my inferences from the judicial philosophies of those who support him so strongly.

Rosen: 9/16/05, 03:25 PM
I agree entirely that neither of us is a good enough political soothsayer to have confidence in our predictions about the future. You could well be right that the first time the majority party in the Senate, whether it's the Republicans or Democrats, refuses to confirm a nominee from the opposite party, the senatorial obstructionists will be blamed for shutting down the government. But political blame is fleeting and the public has short memories. The relevant constitutional point is this: which party will be blamed for radically transforming the traditional bipartisan presumption of confirmation that both parties have applied in the past. Until now, both parties have played tit for tat and are more or less equally responsible for the polarization that has afflicted the confirmation process, culminating in the threatened elimination of the filibuster, which moderates in both parties thankfully managed to prevent. By contrast, if the Democrats are the party that pulls the trigger and changes the confirmation standard, they will be deservedly blamed for radicalism not by public opinion (which we can't confidently predict) but by constitutional scholars and historians. And to incur this blame from a position of weakness, when Democrats occupy the minority and their opposition votes can't make any practical differences, strikes me as nothing more than the symbolic politics of self destruction. The upshot of your standard is the only nominees who can be confirmed in an age of divided government are those whom the opposition party specifically asks the president to appoint. This is hardly a recipe for a liberal revival.

As for Roberts's and deference, yes indeed, you may be right about that as well. Perhaps I'm being too optimistic in seeing him as a sincere advocate of bipartisan deference. Maybe he will dramatically reveal himself as a Scalia clone in disguise. I doubt it. But even if I'm wrong, under the traditional standard, it strikes me that senators shouldn't vote their fears rather than their hopes, as Sen. Biden put it today, unless they have good reason to believe the nominee will follow a judicial philosophy with which they strongly disagree. Giving Roberts even a little benefit of the doubt, I think Democrats would be unwise to vote against him in large numbers; and I hope for the sake of the party, the country, and the court, that they step back from the brink.

Many thanks for a provocative and illuminating conversation.

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