Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Wednesday, July 20, 2005

So Here We Go, First of Many Substantive Posts on Roberts and the Appurtenant Debate

Usually, I find myself nodding unconsciously in agreement with the erudite, insightful posts I find at Majikthise, which I think hands-down is one of the brightest, most unfailingly thought-provoking beacons in the blogosphere. (See, for example, this entertaining post about a post about nice guys finishing last and the attendant links and comments.)

But this is a bit much. Lindsay argues that the only thing for Democrats to do is buckle down and decline to confirm Roberts as a matter of checks and balances and conscience:

In the weeks to come, let's not get bogged down in obscure arguments about whether position A on issue B is indicative of fatal logical defect C within constitutional interpretive theory D. We're entitled to our litmus tests. If we don't like a candidate's views on abortion, let's say so straight out. Forget trying to argue that anyone who supports abortion must have made a catastrophic error in legal reasoning about twenty steps back. Even if it's true, it's not our burden to discharge.

It's really very simple. If you're a Democratic senator, you don't vote for the John Roberts because he's not the kind of person you want on the Supreme Court. You use the confirmation project as it was meant to be used, as an opportunity to delve into the qualifications and values of the nominee. The public deserves to know exactly where this potential lifetime appointee stands on the issues. Then you vote. Then, after the smoke clears, you look around to see who else stood by your party. Then you act accordingly.

In statutory interpretation, where terms are not expressly defined in the statute in which they appear, we typically endeavor to read those terms according to their common meaning to the extent that meaning does not create an absurd or unintuitive result in the larger context of the statutory provision as a whole. Of course, "advice and consent" is a constitutional, rather than a statutory principle, and different approaches to interpretation apply.

Far more important, however, with something like this is custom and usage. (I will momentarily address the definitional matter, but specifically to refute Lindsay's account of what those words connote rather than as a matter of interpreting the constitution.) Thus, we have to ask, as any senator who has participated in any confirmation hearing must ask, what the process has been, is, and should be. Historically, only truly outlying nominees for major positions have been actively opposed by the minority party. On both sides of the aisle, this has been especially true of the judicial confirmation process. A perfect example of this is the pre-filibuster-nuclear-option-debate confirmation of the Honorable John G. Roberts to the United States Court of Appeals for the District of Columbia Circuit by a dissent-free 99-0 vote. Implicit in Lindsay's post is the idea that this, and all such quiet confirmations (the vast majority of them, notwithstanding the right's hue and cry to the contrary), reflect somehow a betrayal of every senator who disagrees with a given nominee's positions on, e.g., abortion (to propose a novel candidate hot-button issue).

I agree with Lindsay that the Senate cannot become a rubber stamp for a president's nominees to the benchy, nor was it evidently envisaged so to be by the framers of the constitution. Moreover, I agree that the minority should feel as free to inquire after a nominee's position on various issues as the White House did in selecting a candidate. Call it a litmus test, call it whatever you want, but at the end of the day Bush's choice of nominee is as ideological, as calculating, as any senator's choice not to vote in favor of that nominee's confirmation could possibly be.

That doesn't mean, however, that a party's members are duty-bound to pull out the stops in an effort to blackball every single nominee of whom the majority of the party disapproves on moral or political grounds. Want to see the whole system grind to a halt? That's a good way; we've already been flirting with it this year, with the whole filibuster fight and the president's tendency to pick the most patently offensive and unqualified people for positions of national and international consequence.

Which returns me to the sense I -- and historically, the Senate -- derive from the phrase "advice and consent." The relevant constitutional provision provides:

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . . ." (United States Const. Art. II, Sec. 2, cl. 2.)

First, let's assume for argument's sake that we all share a basic understanding of the meaning of "advice" in this context and skip to "consent." In its noun form, which plainly is the form directly in play in the above usage ("with the . . . Consent"), "consent" means "Acceptance or approval of what is planned or done by another; acquiescence." Notice that two of three substantive words in the definition suggest something divergent from "approval." Particularly suggestive is the post-semi-colon "acquiescence," which militates rather strongly against a strong reading of the disjunctive reference to "approval." Approval itself may be understood in various ways. Substantive approval, of course, suggests an actual meeting of the minds or concurrence; ministerial approval, however, can mean many things, perhaps in its weakest form alluding to something very like a rubber stamp -- i.e., an acknowldgment of conduct in conformity with a mandate or an otherwise acceptable practice.

Lindsay, however, seems to think that disapproval is reason enough not to vote to confirm. Were this the case, we'd have hundreds of spots on the federal bench open at any moment, and quite possibly a seat or two on the Supreme Court vacant to boot. The system, in its every construct, is so plainly built on the notion of compromise that an argument for such uncompromising behavior threatens its daily function. But compromise doesn't mean we always end up with vanilla, the least common denominator, nor should it: there are incident benefits to being the party in power, and as someone with clear party sympathy I wouldn't have it any other way. Unfortunately, that means eating it a bit when one's party is in the minority. Roberts may be eating it "a bit" for the left, but he's a poised and able legal thinker who incurred absolutely no dissent from the left when, only four years ago, he was confirmed to the second most important court in the land, the D.C. circuit court.

The filibuster is a fantastic defense mechanism, and I would be appalled to see it abolished. But it's one thing to use every arrow in the quiver against a Bork, whose approach to constitutional interpretation was outlandishly marginal and indefensibly radical (even couched in the fascinatingly robust intellectual rationale he provided and still argues for from time to time), and something else entirely to act as though a minority party can realistically expect to get a representative of that party's ideology into a position within what amounts to a spoils system. The reality is this: just as Democrats tend to get judges with democratic sympathies onto the courts when they are in power, so shall Republicans have their way when they are in power, at least up to a point.

Although I am not done looking at Roberts, and hardly am prepared to endorse him specifically, I am concerned about the hazard to democrats as a group and the system as a whole of adopting a scorched earth approach to the Supreme Court nomination process. If it were possible or defensible for the minority party to knock out jurists based on their positions even when either moderate or plainly undeveloped, simply because they reflected some ideas consonant with the other side's philosophy, who knows how many irascible and tendentious jurists, liberal and conservative, never would have made it to the high court, leaving United States law, constitutional and otherwise, more anemic for their absences. Not to mention justices like Blackmun and Souter and Kennedy, who with time and the luxury of lifetime tenure have adjusted their views in accord with their evolving moral and legal commitments.

Democratic senators who truly believe Judge Roberts is unqualified should vote their consciences. Senators who wish to gain insight into what makes Judge Roberts tick, and what principles animate his jurisprudence, should ask him the hard questions during the impending hearings. And Judge Roberts should make every effort to provide candid, illuminating answers to those crucial questions. When all is said and done, however, senators with no more robust reason to refuse to consent to Judge Roberts' nomination than that he was hand-picked by a Republican president should suck it up, remember that this too shall pass, and acquiesce to the nomination at the last, when vigorous inquiry has revealed him to be a qualified, even-handed judge with whom the left happens to disagree on some important issues.

I whole-heartedly believe that the real fight is going to be over the next vacancy, to which I fully expect Bush to appoint a far more contentious nominee. The poise and gentility the democrats bring to Judge Roberts' hearings will pay dividends then, when the dems can honestly say they only endeavor to foil the prerogatives of the party in power when faced with an untenable situation. If this confirmation gets out of hand, the GOP is going to absolutely kill the left in the press, and a party already weak in number will be further diminished in the public eye, an unfortunate result should it obtain.

The point of the process, traditionally understood, is to ensure the appointment of a qualified and worthy jurist. If one's definition of "qualified and worthy" entails ideological commitments identical to one's own, then any sense of objective meaning as to qualified and worthy is shot to hell. Furthermore, it's more or less categorically at odds with the whole idea of lifetime tenure and the independent judiciary. What's independent about demanding that each seat be filled with like-minded automata?

Again, this is not an endorsement of Roberts. Rather, it is a rejection of the archly partisan process for which Majikthise argues under the evocative title, "Discipline and Punish."


Blogger Lindsay Beyerstein said...

I'm not arguing that senators of one party should always vote against the nominees of a president from the opposing party. If Bush picked a judge whose core values were basically consistent with those of the Democratic party, then I'd be happy to see bipartisan support for that person.

In this case, I don't even think Democrats should filibuster, barring some truly shocking and genuinely disqualifying revelation about Roberts.

What I'm saying is that senators have every right to vote against a nominee. They don't owe the president any deference.

There's no countermajoritarian worry here. Even if we had perfect party discipline Roberts would still be confirmed. But we'd send a powerful message about Democratic unity and provide a powerful incentive not to nominate an even more conservative nominee next time.

In this case, Roberts' values are inconsistent with our core principles. Why should Democratic senators support Bush's politically-motivated nominee?

The Senate isn't the collegial place it once was. We've got to acknowledge that and work within the new tradition that the Republicans started under Clinton.

2:04 PM  
Blogger Moon said...

I realized that I wrote as though you were arguing for a filibuster when that was not how I actually read your post, and for that lack of clarity I apologize. I do think that party unity is important, pro- or con-, which is why my writing amounts, based on my reading of "consent," to a suggestion that, should Roberts emerge as eminently qualified, the Dems could do a good job of rising above this deleterious fray by voting in a majority of the Dem caucus to confirm Judge Roberts.

You are right that "senators have every right to vote against a nominee," in the simplest terms; senators are there to vote as they choose. But their votes are not cast in a political vacuum. By your rationale, had Kerry won the election he would, quite literally, have no right to appoint a progressively-minded judge to the Supreme Court since the Republicans would still have comprised a majority of the senate.

Think about this: it's true that, were that the case, one might argue it would be salutary to the will of the electorate that Kerry be forced to nominate a moderate conservative to solicit the votes of the senate majority. But need we recall that the senate, in fact, is not a body that proportionally represents the national electorate. If it isn't already the case, it could be, that a majority of senators might represent a minority of the electorate. Thus, a President, in whom expressly was vested the power to appoint judges for lifetime positions on the Article III bench (actually, only the Supreme Court, by the literal text of Article II), would be entirely beholden to a senate which in turn was representative of a minority of the population.

I simply submit that this is not what the Framers intended, and that consequently "consent" shouldn't be read as narrowly as your suggestion requires. While we can't afford to ignore the evolution of the confirmation process into a partisan free-for-all, we also can't sacrifice open opportunities to take the high road in order to establish greater credibility for future battles of greater urgency and consequence.

Finally, as a side note, Randy Barnett would disagree with you that it's all that clear that Roberts' values are "basically consistent" with any party, since he's so assiduously avoided submitting them as such in a public forum. In the courtroom, in the SG's office, lawyers speak for their clients, period.

As a practical matter, Roberts' fundamental conservative seems undeniable. What this will mean on the bench, however, remains to be seen. It's in drawing this out at the hearings in as much detail as possible that Dems, and senators generally to the extent they care to eschew their partisan commitments during questioning (yeah, right), fulfill their responsibility to the country.

2:21 PM  
Anonymous binky said...

"Democratic senators who truly believe Judge Roberts is unqualified should vote their consciences. Senators who wish to gain insight into what makes Judge Roberts tick, and what principles animate his jurisprudence, should ask him the hard questions during the impending hearings."

The implication of those two statements is that the only reason to vote against is an "unqualified" judge. If he is qualified, well then we ask him hard questions. I disagree with you that "consent" only implies "dissent" in the face of an unqualified candidate.

I think this gets back to fundamental assumptions about the role of the legislature, that is, to what degree is it representative? Or the corollary, to what degree do Senators believe they can stray from representing "their" people and still retain enough public credibility and support at the ballot box. As I said over in bloodless, I think using the filibuster on Roberts will make the democrats look like assholes, which will come back to haunt them later. It was a smart pick, precisely because of what you say in the passage I quoted. I'm sure there are plenty on the left thinking right now: dammit, we've been out-politicked again.

3:46 PM  
Blogger Moon said...

The implication of those two statements is that the only reason to vote against is an "unqualified" judge. If he is qualified, well then we ask him hard questions. I disagree with you that "consent" only implies "dissent" in the face of an unqualified candidate.

I think you read me right, except insofar as you ascribe to me a narrow definition of "qualified" in this context to which I don't subscribe. Senators should ask the hard questions to determine whether a nominee is qualified, a matter they must assess in the light cast by their conscious as contoured by the shadows of tradition, politics, pragmatism, and the exigencies of being in the minority.

For some senators, "qualified" will only attach to nominees who believe abortion must be preserved. They should vote their consciences. Others might have reservations about a nominee with lesser academic credentials. They should vote their consciences.

It's Lindsay's argument for lockstep voting (recall her title, "Discipline and Punish") that waved a red flag. It's a lot easier to justify an individual vote as one of conscience, as one reflective of a constituency to whom a given senator attributes his electoral success, than it is to justify forty-four (or whatever) senators voting the same way just because, you know, the guy's a Republican facryinoutloud. (In this regard, Lindsay's qualification that Democrats can defensibly vote for Republican appointees who share "core values" with the Democratic party is sort of like if Bush insisted that he's not driven by partisanship in his selection because, Hey, if a Democrat came along who was anti-abortion, anti-regulation, pro-gun and a card-carrying member of the Federalist Society, he'd nominate him in a second. Wait, did I just describe Zell Miller? Does he have a law degree?)

I don't think that sort of rank partisanship was what was envisioned in the various "Advice and Consent" clauses in the Constitution, and that we've seen more and more partisanship in the process recently a) doesn't make it right to perpetuate it when the party stands to gain nothing by doing so, and b) doesn't make it effective politically or tactically.

Qualified, to me, has more to do with a record of fairly measured jurisprudence, and an absence of various really scary things. Though Federalist Society membership, e.g., is a little scary to me personally, I don't consider it the mark of the beast when affixed to the breast of one member of a court of nine, especially when to all initial appearances he's probably about 8% further right than the woman he has been tapped to replace, and quite possibly much more nuanced in his legal reasoning.

4:04 PM  
Anonymous binky said...

Well, I think maybe some of our different perspective have to do the with different branches our interests focus on. As for rank partisanship, whether or not the founders conceived of parties in the same way that we did, the conflicts they got into could certainly be called "rank." (ba dum bum cymbal).

Thanks for explaining your notion of qualified...I understand it better now, though I'm still not sure I agree with you in that I don't think one needs to hide ideology behind some notion of qualification. Like I'm some kind of expert. ;)

4:24 PM  
Blogger Moon said...

i also think it's worth recalling that everyone until bush 43 relied significantly on the ABA ratings of nominees for federal courts. in connection with his circuit court nomination, roberts received a "well qualified" rating, the ABA's highest. the aba was a good index then, it it remains so.

8:56 PM  
Anonymous Anonymous said...

Lindsay wrote "What I'm saying is that senators have every right to vote against a nominee. They don't owe the president any deference." in her comment. To me that seems the key point. Do you disagree with her on that position?

As to what makes someone qualified, obviously people will use different measures to judge that. I think it's perfectly reasonable for some senator to say that s/he will vote against a Supreme Court nominee who refuses to acknowledge that there is some sort of liberty/privacy right in the constitution, even if it doesn't say so specifically. Are you saying that you disapprove of a senator voting against a nominee on the grounds of that kind of litmus test? It seems entirely possible that Roberts was selected at least partially on the basis of such tests.

9:46 AM  
Blogger Moon said...

Nowhere have I questioned senators' individual prerogatives to vote as they choose. Also, I have expressly acknowledged that an individual senator has as much right to the post hoc litmus test that the Bush admin surely applied ante hoc in selecting Roberts to begin with. I've no illusions about Bush's agenda, or the fact that, in the larger scheme of things, he believes Roberts will serve that agenda.

My challenges to Lindsay have and remain focused on the apparent imploration that all Democrat senators apply the same litmus tests and vote uniformly. That's not about senators not owing Bush significant deference; it's not about the right to vote one's conscience. It's about conformity, notwithstanding individual conscience. Both parties do this too often. True, it's an inevitable feature of a two-party system, and we see variations of it in parliamentary systems as well, with their unholy alliances and strange-bedfellow coalitions, but voting one's conscience and voting as a bloc often are different things.

As far as deference goes, I don't consider it some abdication of a senator's responsibility to recognize that, in the first instance, it's the president's call whom to nominate. That's how things are set up; it's how things have operated for 200 years. It could have been set up the other way -- Senate nomination, presidential confirmation -- but it was not and that was a conscious choice by the Framers.

I believe that confirmation was there to act as a check on a pure spoils system that reflects no regard for qualification and record. Historically the senate has treated the process as such, passing untroubling opposition nominees notwithstanding philosophical differences. Especially with the judiciary, I'd maintain this tradition to the extent possible.

I'd like to see a Democrat president be able to put a pro-abortion nominee on the Supreme Court in 2009, nowithstanding a GOP majority in the Senate. By the reasoning reflected in the bloc-voting mentality, along with the attendant implication that a party caucus has an obligation to vote against the other side's nominees when that nominee reflects, unsurprisingly, the other side's core political and moral commitments, we might not be able to nominate a pro-abortion candidate for decades, no matter who is president, if the GOP holds its senate majority.

Thankfully, that's not how it's gone in the past. Would you change that?

Since the Dems can't win on this one anyway, I really don't think the gains of voting as a bloc (assuming Roberts doesn't have any skeletons in the closet a la Bolton) are worth the costs of not demonstrating an exercise of individual judgment, as in my opinions senators have an obligation to do.

10:00 AM  

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