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Debate Club

Who Could Win Every senator's Vote?

Wendy E. Long and Stephen B. Presser debate.

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A few weeks ago, Debate Club asked two liberal thinkers to come up with a slate of potential Supreme Court candidates who were "approved by conservatives, lauded by moderates, and acceptable to liberals." This week, we revisit the question with two more conservative thinkers:

Who could win every senator's vote?

Wendy E. Long is legal counsel to the Judicial Confirmation Network. Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law.

Long: 6/20/05, 10:31 AM
I must say at the outset, it's tough to address Professor Presser—a distinguished teacher at the best law school in the country—as "Stephen," but that's the blunt world of blogdom.

So, Stephen, let's cut to an equally blunt statement of political reality: There isn't a potential Supreme Court nominee on the planet (at least, one this President would nominate) who could get 100 votes in the Senate.

Why? Because liberals have politicized the process and made it impossible for most Democratic Senators to support a nominee who shares the President's stated judicial philosophy: to apply the Constitution and federal laws as written rather than "legislating from the bench." The President's view, which will be shared by anyone he would nominate, is that courts are supposed to be neutral umpires of the law. We have lifetime appointments to the Supreme Court precisely to allow that function. The court is not supposed to function like President and the Congress, which properly implement policy choices because they are accountable to the people through elections. Federal judges are properly unaccountable to the people, but the flip side of that coin is that they should not be allowed to make laws—only to decide cases.

Likewise, the President's supporters expect President Bush to keep his promise to nominate a Supreme Court Justice who embraces this judicial philosophy. If his Court of Appeals nominees—Judge Brown, Judge Owen, and Judge Pryor—are any indication, President Bush will keep that promise. If he gets a chance to nominate one or more Supreme Court Justices, it will be his most important and enduring legacy. This choice is not the time to capitulate with some nominee acceptable to the Left.

Before President Reagan's nomination of Judge Bork in 1987, the generally accepted criteria for Senate confirmation were legal and judicial qualifications and integrity. "Judicial philosophy" was left to the President's discretion, as the Framers of the Constitution intended. The President, as the only elected representative of all Americans, is the one who should make that choice. It's what the Constitution empowers him, and the people elect him, to do.

But the Democrats changed the ground rules for nominations with Judge Bork. The Left's continued failure to persuade the American people of the merits of their ideology, and their corresponding losses at the ballot box, has resulted in the Left being even more dependent on a compliant judiciary than it was 18 years ago. So liberal pressure groups, and the Senate Democrats they control, will oppose any nominee who shares the President's judicial philosophy.

So, Stephen, we won't see any 100-0 Supreme Court Justices confirmed. But remember: Senate confirmation is not like a law school final exam, where one tries to get the highest score. It's more like the bar exam, where one simply has to pass.

Presser: 6/20/05, 04:36 PM
I'll pass your comments about the quality of your alma mater on to my Dean; he'll be very pleased. This is going to be a difficult conversation to maintain, because unlike the last time I did one of these, I agreed with almost every syllable you wrote, and, in particular, that since the Bork nomination the rules for who gets challenged and why have changed.

What's happened is that the "legal realists," working in the shadow of Oliver Wendell Holmes, Jr. have finally become the most influential judicial philosophers, and, as a result all academics, most lawyers, and certainly the leading Democratic Senators now all believe that law is just politics operating at a different level, judges have the freedom to implement the policies they please, and thus it's crucial to pick judges who will implement the rulings one prefers—for the Democrats at this point rulings that favor affirmative action, abortion, and the removal of religion from the public square. The Republicans find themselves in the interesting position of being able to promote the policies they favor—for example a color-blind constitution, allowing the states to regulate abortion, and undergirding law with religion—by pushing for the appointment of judges who will more narrowly construe the constitution according to its original understanding (the traditional perspective argued in the Federalist and other works of the framers). Thus, for the Republicans, they can successfully argue that the favor judges who don't make law, and still implement the policies they believe are appropriate.

Indeed, our odd situation right now is that the question of the judiciary is so politicized that both sides can score points with their base (and encourage financial contributions from that base—which is, after all, the lifeblood of politics at this point) by stoutly
maintaining a no-compromise attitude on the judiciary.

Because both sides have a lot invested in the current disagreement, I agree that finding a nominee who can get through on a 100 to nothing vote is probably impossible. None of the nominees I like best could ever manage that. There is one possible nomination President Bush could make who might well pull off 100 to nothing or something close to it, and that is Michael McConnell, former University of Chicago and University of Utah law professor now sitting on the 10th Circuit. McConnell had strong bipartisan support for his court of appeals nomination including a petition from law professors of all stripes (ranging from me on the right to Cass Sunstein on the left, and everyone in between).

McConnell might be acceptable to conservatives because he does believe that the Supreme Court has gone too far in reading the total separation of church and state into the Constitution, and because he personally is opposed to abortion, and understands that Roe v. Wade has no firm constitutional foundation. He might be acceptable to the left not only because so many liberal professors support him, but also because he has been public in his criticism of Bush v. Gore and the impeachment of President Clinton. I have heard some savvy commentators suggest that McConnell is high on the White House's short list, and, if the President wants to maximize the votes for his nominee (which I hope would not be his primary concern), McConnell might be the right man for job.

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Long: 6/21/05, 09:31 AM
You're right about the unfortunate legacy of Justice Holmes (the "thrice-wounded veteran" of the Civil War, as Justice Thomas used to remind me, for whose military service rather than whose jurisprudence we should be thankful) and the school of legal realism he spawned.

But I don't think that most Republicans—certainly not this President and those on his short list for the Supreme Court—advocate a faithful application of the Constitution and respect for the limited role of the judiciary simply because it coincides with the policy outcomes they would prefer. They actually believe in our Declaration of Independence and Constitution, and that the American government was constituted to secure, by the "consent of the governed," the rights that "nature and nature's God" give to all men equally, by virtue of their humanity.

Rather, it is Pat Leahy, John Kerry, Chuck Schumer, and People for the American Way who believe, with Justice Holmes, that there is "no meaning in the rights of man except what the crowd will fight for."

Likewise, the vast majority of Republicans—in contrast to the Democrats—have abided by the traditional, constitutional role of the Senate in confirming Supreme Court nominees, looking at qualifications and integrity only. Why else would Ruth Bader Ginsburg, the former general counsel of the ACLU, have been overwhelmingly approved by Republican Senators, who knew full well that they disagreed with her judicial philosophy and that she was replacing Justice Byron White, one of the dissenters in Roe v. Wade?

As to your suggestion of Judge McConnell, he's certainly a fine judge and a bright legal intellect who is by most accounts on the President's short list. But I don't think he's alone in having received praise from liberals who will feel no compunction about ignoring, and indeed contradicting, their prior remarks if he's nominated to the Supreme Court. Others on the short list have also received praise from liberals. For example, Larry Tribe recently praised another short-lister, Judge J. Michael Luttig of the Fourth Circuit, saying "his intellectual acumen and literary gifts are of a very high order," and "I like and admire him a great deal personally."

None of this will matter the minute the nomination is announced. Judges McConnell, Luttig, and other fine judges of previously acknowledged intellect, experience, and integrity, will become "extremists," just like Judge Bork did, according to liberals who had previously praised and endorsed him. It will happen again, unfortunately.

Presser: 6/21/05, 02:34 PM
You've gone right for the jugular, Wendy, and you've made clear why it is that our exercise to find someone who might get through the Senate with near unanimity might well be a futile effort. Let's review exactly what we mean by "Borking." For me, the telling episode was related by Robert Bork in his "Tempting of America" book when he reported a conversation with Senator Kennedy, who had recently delivered his infamous Senate floor speech in which he stated that to put Bork on the Court would be to bring back the days of segregated lunch counters and other horrific practices of the past. Kennedy painted Bork as an evil reactionary, much in the manner Senator Kennedy has called President Bush's nominees "Neanderthals," "far right wing," "out of the mainstream," and so on. Kennedy privately told Bork not to pay any attention to what he (Kennedy) said about Bork, because it was "just politics."

What really enrages you and me, I think, is the tendency on the part of the Senators you mention to heap undeserved obloquy on good men and women such as Miquel Estrada, Janice Rogers Brown, Patricia Owen, Terry Boyle, and others. They are not out of the mainstream, Neanderthals, or reactionaries, they simply believe that it is possible to find objective answers to legal questions, and that it is not the job of the judge to be a super-legislator. It's disgraceful and tragic that Senators cannot agree to put law above politics, but you're probably right that we must understand that is our situation.

Or, to put the best face on this that we can, there will not be 100% agreement on any nominee not only because there are some Senators committed to duplicity and scoring political points, but also because there exists some genuine and sincere disagreement over what Justices ought to be doing. For some of the Senators, possibly, a Justice ought to do what Sandra Day O'Connor does, that is, function as if she were still the state legislator she once was, and weigh and balance competing considerations, and decide which policy preference she favors, while all the time suggesting she is just neutrally applying the law. They are perfectly happy to defer policy-making to the courts, sure that the media, the academy, the ABA, and much of the rest of the bar will place pressure on the Justices to maintain the policies they favor.

For you and me (and, I hope, virtually all of the Republican Senators), Holmes and the legal realists notwithstanding, Sandra Day O'Connor is not a fit model as a Justice, rather your mentor (I'm assuming) Clarence Thomas is. The job of a Justice is to try to figure out what the Constitution and its Amendments meant to their framers, taking account of the history of the times and the great principles of Republican government that the framers believed they were implementing.

The law and the Constitution must change, of course, but in order for us to continue to receive the benefits of the rule of law and popular sovereignty which the framers desired, those changes ought to come from legislatures and from Constitutional Amendments by the people's representatives, not their judges. Many, if not most, Senate Democrats (and some Republicans) probably regard that view as hopelessly na´ve in this day and age, but it's as correct as it was when Hamilton expressed it in Federalist 78, and it's still worth fighting for. To come up with a "compromise" nominee who could get 100 votes would not be worth doing if it forced us to sacrifice these important principles, and, to come back to the point you made in your first posting, I'd rather see a nominee prevail by a slim majority, than give up on the rule of law and popular sovereignty.

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Long: 6/22/05, 08:56 AM
Very well said. It is extremely undesirable—and I certainly hope unlikely—for the President to look for a "compromise" candidate, for a variety of reasons:

Reason (1): Principle. Seeking a "consensus" candidate is not the right thing to do. It is not what the Constitution contemplates, in our system built on the consent of the governed. Majorities didn't elect George W. Bush and 55 Republican Senators to do that. For the President to choose a Justice on this basis would retroactively disenfranchise the voters in these elections. The people elected the President so that he would exercise his own judgment according to the criteria he stated in two elections. By definition, those will never be "consensus" nominees. Justices Ginsburg and Breyer were not "consensus" nominees, nor should any Republican nominees be—particularly when Republicans control the Senate, for heaven's sake.

Reason (2): Practicality. Appeasement never works. A "consensus" nominee would not, as one of the liberal Debate Club participants previously suggested in this space, "help move the Senate back from the brink, restoring a measure of comity to the chamber." The atmosphere in Congress, we hear these days, is as acrimonious as it's ever been in history. I think it's pretty clear that the reason for this is that Democrats and left-wing groups are becoming more and more vicious the more they lose elections. Appeasing that group - which, due to the unpopularity of its agenda, comprises a minority in the Senate—is not a recipe for restoring civility. The ones who made the nomination process uncivilized to begin with are the ones who can and should return it to civility. Feed the beast, and it will only growl for more.

Reason (3): Politics. For the President to do anything other than putting up the strongest nominee would be seen as capitulation to Harry Reid. Americans elected the President to pick Justices with strong legal credentials, outstanding judicial experience, and a demonstrated commitment to uphold the rule of law and the limited role of the judiciary. If and when he is faced with a vacancy on the Supreme Court, for the President to pick anyone other than the best person for the job would be a disaster of historic proportions. Choosing a strong nominee to help protect the Constitution and the rule of law for the next generation would strengthen the President now and ensure his legacy. Every great act entails some risk. But the President must not listen to the voice of doubt whispering that a "consensus" nominee is the remedy to the horrendous treatment of John Bolton and falling "popularity" polls. There is great value in standing up for what is right—political and otherwise. Now is not the time to go wobbly.

Presser: 6/22/05, 02:02 PM
We seem to have agreed that our original assignment is impossible, Wendy, so perhaps we might want to turn to who might meet your nicely-stated tripartite requirements of principle, practicality, and politics. Who would best exemplify the judicial philosophy of faithfulness to the rule of law that both of us favor? Who would be worth fighting for, and for whom would we be happy to sacrifice a chance for unanimous or near-unanimous confirmation?

Let's assume that Rehnquist announces his retirement fairly soon. I'd like to see Scalia or Thomas promoted to Chief, on the theory that they are the only two relatively consistently-reliable conservatives currently on the Court besides Rehnquist, and the question then becomes to whom to give the open Associate spot.

The President has apparently been quoted as saying that he wants to appoint the first Hispanic Supreme Court Justice, and today's Chicago Tribune indicates that Attorney General Alberto Gonzales has the inside track, although that report suggested that conservatives might not be happy with his appointment. Do you share my unease at explicitly making an appointment because of the ethnicity of the candidate? I do believe that it suggests that something else than concern for the rule of law is at work, and that unlike representatives in a legislature, if we really believe there are correct answers to legal questions, one's race, gender, or ethnic background oughtn't to be a factor—the only test ought to be one's fidelity to law. Still, all other things being equal, I suppose a message of inclusiveness communicated by appointing a minority or a female candidate makes some sense. And, at least in recent years, no President from either party has been able to escape the temptation to score political points with particular constituencies by making Supreme Court appointments. Perhaps it's inevitable that even we conservatives can't utterly escape from politics when dealing with the judiciary.

I'd like to think that the President should pick the best candidate without regard to any ascriptive criteria, and my pick right now is Edith Jones, from the Fifth Circuit. She's an old friend, but I hope that isn't the sole thing dictating my wish to see her on the Court. Of all the Court of Appeals judges usually mentioned she strikes me as the most careful, the most principled, and the most concerned with restricting the courts to their constitutionally-assigned role. She'd also make a great first female Chief Justice, if neither Scalia or Thomas want the job.

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Long: 6/23/05, 09:40 AM
Breaking news, Stephen: your question "who is worth fighting for?" is very timely.

Yesterday, two news items broke suggesting that the President intends to nominate Attorney General Gonzales for the Supreme Court (or at least that he's moved up on the "short list"), and that Justice O'Connor's seat, rather than Chief Justice Rehnquist's, would be the near-term vacancy.

As Bill Kristol reported in online Weekly Standard last night, "this is somewhat well-informed speculation," not fact. But it's consistent with the Attorney General's marked increase in public appearances and press attention over the last week. He appears to be reaching out to the Republican base: appearing on conservative talk radio, making speeches appealing to Congress to legislate stiffer sentences for federal crimes, etc.

Kristol opines that a Gonzales nomination would "forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence." The White House Bulletin (a publication read by insiders in D.C.) reports that conservatives have started calling the White House to register objection to the idea of naming the AG to any Supreme Court position. Other observers point out that the AG would likely have to recuse himself from many cases that come before the Supreme Court implicating issues he was involved in as part of the Administration, such as the war on terror. Others point out the fact that he has only a couple years' judicial experience on a state court—no federal court experience.

I don't know how you feel about such a hypothetical, Stephen, but I have trouble believing these rumors. President Bush made a big issue in two campaigns over the kind of Justices he would nominate if vacancies occurred at the court during his presidency. He said his jurisprudential models were Justices Scalia and Thomas. During last year's campaign, polls repeatedly showed that voters were more comfortable with President Bush choosing Supreme Court Justices than the idea of John Kerry doing so.

This President's most lasting legacy could be his Supreme Court nominations: to pick Justices who will restore the rule of law and the role of the limited judiciary under the American Constitution. The Republican base has never been better prepared to resist the attempted "Borking" of a great judge who fulfills the criteria the President promised.

Yes, Judge Edith Jones fills those criteria superbly. Remember, the first President Bush had her on his own short list of two, with David Souter. She's long been one of the highly qualified judges with extensive federal experience and real faithfulness to the Constitution. Thanks to the excellent appointments to the Circuit Courts of Appeal by Presidents Reagan and Bush I, there are others like Judge Jones as well.

I agree with you, and hope, that race and gender will play no role in the selection of the next Justices. It's exciting to live in a time when minorities and women are on the Supreme Court, are cabinet secretaries, and leaders in Congress. In this respect, we are at the point our Constitution intended all along: color blindness.

Presser: 6/23/05, 03:09 PM
I think I'd like to use my penultimate post in this friendly exchange, Wendy, to address your fascinating quote from Bill Kristol who you point out suggested that a "Gonzales nomination would forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence." I thought Kristol was onto something, and that it would be useful for anyone (particularly anyone not a committed conservative) reading our correspondence to describe what kind of "fundamental reversal" we believe is called for, and what the meaning of the "downward drift" is.

As we've discussed, what the court has been doing is legislating rather than interpreting, carelessly overturning long-standing precedents in the service of the policy goals of shifting pluralities or majorities. The "downward" aspect of this is that Americans have lost the freedom to determine for themselves what they want their basic goals, laws, and policies to be, since their legislatures now no longer have as much freedom to act.

Worse, the court has not only been restricting the roles of state and local governments, and finding things unconstitutional long believed to be permissible, but has done so in a manner that puts the court's own legitimacy into doubt, and gives little guidance to the other branches. I've already hinted at the "balancing test" behavior (exhibited by O'Connor and Kennedy in particular) which seems excessively arbitrary (as what's put in the balance often amounts to judicial thumbs being applied to the scales). As perplexing is the Court's 5 to 4 decision, announced today in the New London, Connecticut case in which the majority declared that it was permissible for municipalities to use their power of eminent domain to take private citizens' properties to make room for a privately-owned office complex that would presumably generate more local tax revenues. As a believer in giving a maximum of power to state and local governments (and a former Village Trustee) I have some sympathy for the decision, although as a believer in the primacy of private property rights and in the common law maxim that A's property must not be taken simply to give it to B, I also have some sympathy for the dissenters. What I wonder, though, is whether it makes any real sense to signal fundamental shifts in public policy (like this one) in 5 to 4 decisions, the same number we find in recent abortion cases, the affirmative action cases, the religion cases, and many others.

Particularly when the Court's reasoning (layered with "balancing tests," "levels of scrutiny," "narrow tailoring," and the rest) is so unconscionably opaque, it is no wonder that Kristol suggests that the Court is "adrift." I do believe that it is necessary to have a "fundamental reversal," and I would like it be something back toward the jurisprudence of original understanding of a kind usually practiced by Scalia and Thomas. I think it's about time for a clear and decisive majority of the court (augmented perhaps by two or three Bush appointees) to abandon the jurisprudence of nuance favored by academics and return us to a Constitutional law that can be understood and applied, a Constitutional law that has as its primary goal the protection of the rights to person and property the Constitution was designed to provide, through the ongoing exercise of popular sovereignty for which our Republic was created. This is, I hope, what President Bush has tried to tell us he wants, and let's hope he can appoint some Justices more dedicated to giving it to us.

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Long: 6/24/05, 08:40 AM
Let me say one last time, your tutorial is music to my ears. I've found this week very edifying and hope others have, too.

And yes, I do hope and believe that the President intends—should there be any vacancy or vacancies at the Supreme Court on his watch—to nominate Justices who would eschew the "jurisprudence of nuance" as you so evocatively put it, and would return us to a jurisprudence that understands and respects the Constitution. Such a jurisprudence in turn would be understood and respected by the citizens upon whose consent this Republic is built.

Just one aside about the "jurisprudence of nuance": it seems to me there has been a marked increase in it with the increasing involvement of law clerks in opinion drafting over the past generation on the court. I don't think it is a coincidence. Although my fellow Supreme Court clerks were a smart bunch, I did notice that their draftsmanship seemed to favor the complex, academic writing that fills up blue books in Cambridge and New Haven and Chicago. It does not compare favorably with what comprised the earlier volumes of the Supreme Court Reports, when we could be sure that Justice Marshall was elucidating the doctrine of judicial review—or that Justice Holmes was dissenting in Lochner v. New York. The revelations in the papers of the late Justice Blackmun on this score provide fairly disturbing evidence of the hand behind some of this convoluted thinking and writing that has come to constitute many of the most important precedents of our nation's highest Court.

I remember from my clerkship that certain Justices (the Chief Justice and my former boss, Justice Thomas, among them) were quite clear about who was the Justice and who was the clerk, and that clerks had not been nominated by the President and appointed with the advice and consent of the Senate.

Which brings me back to the topic we were assigned to ponder this week: Which candidates, if nominated by the President, could be appointed with the full endorsement of the Senate? I think we agree that the endorsement of 100 Senators is all but impossible in the current climate, and it's certainly not necessary or even desirable.

What is important is that the President nominate, and the Senate confirm, the kind of Justice he has promised, one who has outstanding legal credentials, a great intellect, an ability to write his or her own opinions, and who has a commitment to faithfully and impartially apply the Constitution.

Yesterday's 5-4 New London decision that you highlighted, holding that the Constitution permits local governments to seize the private property of homeowners in order to allow private development, illustrates perfectly the need for a return to the jurisprudence of originalism. Nothing in the thought of the Founders, or the common law understanding of "public use," permits such an outcome. And did you notice that Justice O'Conner's biting dissent sounded just like the opinion written by Justice Janice Rogers Brown in another takings case before the California Supreme Court? Those who have attacked Justice Brown, and who will surely attack the President's other nominees, need to read Justice O'Connor's opinion.

Presser: 6/24/05, 12:42 PM
It's been a treat to "debate" you, Wendy. Not the least satisfying thing was to have a dialogue with someone whose views bear some resemblance to my own; perhaps you have a notion of how rare that is in the academy today.

I'd like to use my last words to comment, as you did, on the sorry state of Supreme Court jurisprudence, whatever the cause, and how this makes the next couple of Supreme Court appointments some of the most important in history. We can criticize individual opinions, and, in particular, we can criticize the court's tendency to want to be the sole law-giver in the republic, but a case such as the New London decision (which I think will go down as one of the most important in years) makes plain what really is at stake. That is the difficult job the Supreme Court has in reconciling what amount to the irreconcilable goals (the Critical Legal Studies people used to call them "antinomies") of our law and legal institutions. These include at the very least the desire to reign in arbitrary power (federalism and the separation of powers are concerned with those), the preservation of popular sovereignty, the furthering of economic progress, and the maintenance of a sphere of privacy (or private property) immune from governmental interference.

Several of these contradictory goals were in tension in New London, and the majority opted for federalism, and the dissent for the protection of private property. The tensions can never be resolved, but the wise judicial course is usually to stick with the manner in which they have been accommodated in traditional practice, which is why Scalia's deference to tradition and Thomas's to original understanding make so much sense. Sadly, the court has, too often in the last few years, forgotten that its job is to preserve the best of American tradition, and has believed that it should be in the business of blazing a new path for the future.

This term, as the Wall Street Journal reminded us this morning, considering the marijuana decision and the New London one, the court seems bent on expanding the power of both the federal and the state governments, at the expense of the individual's property. Government is a good thing, but the essence of the American experience is that we must not allow it to be omnipotent—or to act arbitrarily. Getting Justices with the wisdom and the humility to understand that is not an easy task, and as Hamilton pointed out in the Federalist, the number of "fit characters" for the job is a small one. Let's immodestly hope someone in the White House charged with compiling the short list for the court has been reading our exchange, and that we might have, in some small way, nudged things in the right direction.

It's been a pleasure working with you. I would have liked to have claimed credit for teaching you, but at least my colleagues did a good job.

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