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.

Monday, November 07, 2005

Equal Time -- Good Reasons Not to Confirm Judge Alito

Law Prof Geoffrey Stone, without resorting to inappropriate and insupportable readings of Judge Alito's opinions, and without resulting to pithy soubriquets or impetuous smears, provides a focused birds-eye view of what valid reasoning leading to a senator voting against Judge Alito's confirmation might look like. (In all seriousness, as straightforward as it is, this is my favorite thoughtpiece on the nomination so far).

He notes two relevant questions: "First, what type of justice will he be? Second, what is the proper role of the Senate?" On the first topic, Professor Stone focuses on the idea of judicial restraint. In this regard, he sees in Alito echoes of Chief Justice Rehnquist, and on this basis opines that Judge Alito ought not be confirmed.

Consider the positions of Chief Justice William Rehnquist, perhaps the best example of a modern judicial conservative. Rehnquist maintained that there is no constitutional right to abortion, no First Amendment protection of the journalist-source privilege, no constitutional prohibition of government-funded vouchers to support private religious education, and no constitutional right to prevent the government from examining your bank records. All these positions can readily be seen as examples of judicial restraint.

On the other hand, Rehnquist also maintained that affirmative action[,] campaign finance regulation, restrictions on commercial advertising, public takings of private property even with just compensation, government decisions not to fund religious expression, and certain federal laws regulating firearms are all unconstitutional. By no stretch of language or logic can such positions be characterized as “judicial restraint,” to say nothing of “strict construction” or “interpreting rather than making law.”


It would appear that Samuel Alito is a rough approximation of William Rehnquist in terms of his perspectives, values, philosophy, and probable judicial approach. * * * * Whether that is good, bad, or indifferent depends on what you expect of a Supreme Court justice. For me, it is bad. In my judgment, the primary responsibility of the Supreme Court is to protect the relatively powerless in our society against the inherent dangers of the democratic process and to protect the process itself against the most powerful elements in our society when they attempt to manipulate the system for their own partisan or personal advantage. On my view, Rehnquist was not a “good” justice. Too often, he used his authority to promote the interests of corporations, the wealthy, mainstream religions, and law enforcement, and disregarded the interests of minorities, women, political dissenters, the press, and the disfranchised.

Okay. Note the magnanimity. The acknowledgment that this is about viewpoint rather than inherent worth. No intimations of conspiracy, of jumping at the opportunity to satiate some snarling idealogue hiding behind a judge or justice's seat on the bench. Just an honest assessment of patterns, apparent inclinations, and consequences, and a careful if brief explanation of why Professor Stone, based on the patterns and what they suggest about Judge Alito's (defensible in terms) inclinations, and given what he perceives to be the consequences of confirming Alito in light of these concerns, believes Alito ought not be confirmed.

In order to maintain the vote-no position, however, Professor Stone recognizes that one must consider the claim that confirmation is all about the "up or down vote" -- you know, the one the Republicans made sure Harriet Miers never received -- and the degree to which the Framers believed the Senate ought to defer to the Executive with regard to a nomination of such importance. Professor Stone pretty much demolishes the conventional wisdom on this one, too, and not by invective, but by simple marshalling of historical facts.

Presidents routinely assert that the Framers gave them the power to appoint justices and that the Senate should therefore defer to them in the absence of extraordinary circumstances. But that isn’t our history. At the Constitutional Convention, the Framers clearly intended the Senate to play an active role in giving its Advice and Consent to judicial nominations. Indeed, until the very last day of the Convention, the Framers had assigned the power to nominate judges to the Senate, rather than the president. They were concerned that an overbearing executive could exercise undue authority if granted carte blanche authority to appoint federal judges, who would then serve for life. It was only on the final day of the Convention that the Framers decided that it would be unwieldy for a multi-member body to make nominations and reluctantly assigned the responsibility of nomination to the president.

That the Senate would play an aggressive role in reviewing judicial nominations was evident from the earliest days of the Republic. George Washington’s nomination of John Rutledge as Chief Justice of the Supreme Court was rejected by the Senate because of opposition to his stance on the Jay Treaty, and during the 19th century the Senate refused to confirm 25% of all Supreme Court nominations. There is nothing at all new about confirmation battles.

Indeed, one might say that Professor Stone has hoisted the GOP on its own originalist petard.

(Hat tip.)


Anonymous baltar said...

Why bother with all the legal gymnastics? Alito is clearly conservative, in ways that quite a few people find objectionable. Giving him a position of authority such that he can use those belifs to decide against my beliefs is sufficient for me to argue against confirmation.

9:18 PM  
Anonymous MarkPele said...

Baltar, if you are right, then any judicial nominees with any political views should not be confirmed. So, who do you think is qualified to sit on the bench?

To the original post, I see how some of the second category go against strict construction, but I would posit that they do only within the bounds of the court's reinterpretation of the Constitution.

For example, denying Affirmative Action is Strict Construction - it is a laying aside of some of the rights of the majority in order to give more rights to the minority.

Campaign Finance Regulation, I would suspect is based on significant reinterpretation of the Constitution by the courts. One might also posit that it is a logical conclusion from the amendment that the President is voted into office by popular vote that the influences of the few be limited, but it's arguably not strict constructionist.

Don't get me started on the government stealing private property. I think it is purely unconstitutional, even with "just" compensation.

Government decisions not to fund religious expression is a very slippery slope, indeed. If government funding of religious expression is unconstitutional in all cases, then it could be easily argued that providing heating during a religious event in a public building is unconstitutional, then, buying a property, and allowing free expression of religion on that property is "funding" religion. Then, by logical conclusion, the establishment clause contradicts the free exercise clause and you're screwed.

Regulations of firearms is also a slippery slope. Let's equate owning firearms with owning a car. It is reasonable for the government to license car owners. It is also reasonable for government to forbid owning a car to those who have used cars maliciously. Where it gets to be a problem is when the government says that you can't own certain cars, or when the process of buying a car is so filled with red tape that you effectively can't own a car. Not sure what Rehnquist decided, but there are reasons to restrict Congressional power in regulating firearms, because the Constitution restricts Congressional power in regulating firearms.

So, I would say that in all but two of the examples he cited, there is reason to believe that Rehnquist executed judicial restraint, and the other two, quite possibly, are based on the consensus of judicial opinion, which, although it isn't strict construction, might be explained as judicial restraint.

11:55 AM  
Anonymous baltar said...

I didn't say, nor imply, that any judge who has political views shouldn't be qualified. I merely noted that Alito's intelligence, diligence, sagacity and perseverance are all in serving a political position I find objectionable. Hence, I don't think he's a good candidate.

I don't need legal analysis to help me make this decision.

4:15 PM  
Blogger Moon said...

Which is probably for the best, Baltar, since Mark has no legal analysis to offer. My last couple of posts have been inclined towards opposing Alito's nomination on grounds derived from his consistent, defensible, but undeniably conservative orientation.

If Mark had taken a close look at the Geoffrey Stone thing addressed in this post, as well as my more recent comments regarding what "qualification" has to do with it (i.e., that its appropriate to consider qualification a necessary condition to confirmation, but there's no reason it should be sufficient), he'd realize that his attempt to ad absurdam his reductio is pretty weak. As Professor Stone notes, judicial appointment in the executive was by no means a given and was a source of great dispute. MOreover, the early Senate, which generally is thought to reflect in its actions the intent of the Framers insofar as they were around at the framing, frequently dispensed with nominees on ideological bases. That's representative democracy in its most vibrant form: if you can, through approved democratic means, successfully derail a nominee, than things are working as they were designed to work.

As for the rest, Mark, your comments, examples, and putative analyses are, one after another, suspect or just ridiculous. And your idea of what "strict construction" is basically invented of whole cloth.

How is denying affirmative action a measure beneficial to minorities?

And how can all takings be unconstitutional, when the constitution in its express language anticipates them and provides protections for those whose property has been subject to a taking? You wander swiftly into wholly different territory, wherein you're simply arguing for a wholly different constitution. That's all fine and good, but until you're engaged in nation building it' a largely whimsical exercise with little bearing on the selection of justices, who are bound to uphold the law as it is, not as MarkPele wishes it would be.

We've already debated the Establishment Clause ad nauseam, and I've no intention of getting back to it. And your slippery slope claim about gun regulation is just silly on its face: first of all, if we regulated guns as extensively as cars, I think a lot of liberals would be satisfid (myself among them). But we don't; it's easir to buy ammunition than it is to buy a car, not all gun ownership requires a license, and not all guns are registered or insured (and universal gun insurance is a fascinating idea, I might add). Furthermore, your attempt to analogize the more dangerous cars misses the point: there are motor vehicles that the public simply isn't allowed to drive on public roads, hence the concept of street legality, because there's no plausible purpose to owning and driving them except sheer self-indulgence, which is not sufficient to outweigh the substantial harm posed.

Why should it be different with guns? You can't drive an Abrams tank down the interstate, so why should you be able to take out a fully automatic assault rifle for a spin?

I've said before that I'm pretty libertarian on guns, but your attempt to reject, or turn to your own advantage, the car analogy is flawed on its face.

4:30 PM  
Anonymous MarkPele said...

So, does the fact that IANAL imply that I have nothing worthy to offer, or is it because my views disagree with yours?

Baltar suggested a "litmus test" for confirmation that is basically, "if the nominee has views that a lot of people find objectionable, and the position has a lot of power, then that person should not be confirmed."

My response was to reduce the argument to absurdity by saying that all candidates have views that are objectionable, therefore there are no qualified candidates.

I must not have punctuated the affirmative action sentence properly. Affirmative action is a laying aside of some of the rights of the majority in order to give more rights to the minority. It is inherently NOT equal protection under the law. I believe that instead of AA, the existing discrimination laws should be enforced more agressively. There are actually some good examples of that recently in "selective" real estate.

Yes, I messed up on eminent domain. I thought it was an interpretation, not spelled out as well as it is. So, the issue is more what the public use is...

There are multiple interpretations of the right to bear arms, but perhaps the most compelling to me is to think that the U.S. was established by ordinary citizens rebelling against an oppressive government. The right to bear arms is intended to protect against the oppressive government, not just to allow me to go hunting for a month a year and shoot at targets. So, I don't necessarily have a problem with citizens owning Abram's tanks. I'd hate to think what would happen if a few of our generals and admirals decided that they wanted to take over the country. Thankfully, most of them are far more patriotic than the ordinary citizens.

11:20 PM  
Blogger Moon said...

Mark, I don't know what "IANAL" means, but I certainly don't take the position that you have no place to speak simply because we disagree. Rather, I think your initial comment on this thread suggested to me that you were a bit out of your depth with regard to your legal arguments, and I criticized your views on that basis. That is, I engaged your points via argument and found them wanting.

Now, regarding Equal Protection, you continue to claim to have a corner on the market for constitutional interpretation, but as I have said before, all the bitching in the world won't make Article III or Marbury v. Madison go away -- in the United States of MarkPele, the constitution can mean whatever you want it to mean, but in the United States of America, the Court is charged with the responsibility to interpret the constitution, and the Court's interpretation is as authoritative as the document itself.

The Court, liberals and conservatives alike, have recognized the cultural context in which the Fourteenth Amendment was passed, and have interpreted Equal Protection to have a results-oriented component, hence the sustainability of at least some limited forms of affirmative action. Like it or not, it's the law, and you taking issue with that interpretation of Equal Protection is sort of like arguing with Webster about the definition of something.

That doesn't mean, to be clear, that you can't disagree with the cases in which that interpretation was enshrined. You certainly wouldn't be alone. But you don't make arguments like that; you just say the Court is wrong because you disagree, and that's not argument. I'll continue to give you a hard time for undefended claims that simply have no basis in the real sources of authority that necessarily circumscribe a discussion of law.

And then you blow your espoused view of the Constitution in one fell swoop, for which I thank you (it makes my life easier). You write:

There are multiple interpretations of the right to bear arms, but perhaps the most compelling to me is to think that the U.S. was established by ordinary citizens rebelling against an oppressive government.

I'm sorry, but I thought you would interpret the Constitution strictly. If that's the case, all of this historical poppycock is beside the point. That's not what the constitution says. It doesn't say anything about "an oppressive government" or "citizens rebelling." Such an interpretation of the Second Amendment is wholly unauthorized under the school of interpretation to which you claim to subscribe.

You can't argue that Equal Protection has no content outside the context of its language, then turn around and start importing wholesale what we in the law call extrinsic evidence to buoy up your interpretation of the Second Amendment.

There are, to be fair, multiple interpretations of the Second Amendment that focus upon the grammar and common usage at the time of the various terms, each of which may justifiably be maintained. I'm pretty agnostic on the Second Amendment, as I've written here before, but I'm certainly not terribly moved by the incipient insurrection stuff. To bring that into the discussion, as otherwise strict construction conservatives tend to do, is to compromise a strict reading of the constitution. To the extent this leads the exponents of such a view to hypocrisy, I'm not terribly interested in engaging the debate.

10:44 AM  
Anonymous MarkPele said...

IANAL = I am not a lawyer.

We continue to disagree on the role of the Supreme Court in the interpretation of the Constitution. That's fine.

Since our arguments are mostly philosophical anyway (now) I'll probably say that I don't need to quote court cases in this post - maybe if there is a specific issue you find with my interpretation...

I think that a strict construction argument is based on the understanding of the document as it was written. Obviously, Jefferson's post-constitution documents (e.g. "wall of separation") have been (potentially mis-)used as binding evidence as to what the interpretation of the first amendment should be.

In the same vein, the passage of the 14th amendment was arguably to correct a wrong. However, the wrong was allowing inequality of races. You can look at it two ways, and I think this is where we differ. The first way is that the goal of the 14th amendment is equal protection under the law. That is my argument. However, it can also define a righting of wrongs to mean a correction of past grievances. The concept of affirmative action is to somehow temporarily swing the balance towards the slighted people so that they can reclaim the lost ground. If you look at the history, the modern notion of affirmative action wasn't really a hot topic until 1972. So, was that really in the minds of the amendment's framers?

If there is no standard to understand the words of the Constitution, then the document will morph to the new language. This has obviously happened, since in the late 1700's when this document was published, "arms" were the best the military had to offer. Now, arms is at best semi-automatic rifles, which are nothing compared to what the military has.

There is a similar example in the Bible. It says, sing "Psalms, Hymns and Spiritual Songs." Now most people today look at that and say that the hymns of the church (Amazing Grace) are what we should sing in response to that. However, the "modern" notion of a hymn did not appear until the 300's, after the Bible was written, when a heretic was writing catchy, but anti-Christian songs. To counter this, the church wrote their own songs. Both were called hymns.

The point is just that the meanings of words can change over time, and in a nation where words don't mean a whole lot anyway, I wouldn't be surprised that the Constitution becomes less and less meaningful. In fact, this is demonstrated wonderfully when the "public use" of eminent domain can be interpreted to mean "something that will bring in more tax revenue to the local government"

BTW: I really appreciate these debates, but, obviously, since we disagree we will end up arguing most of the time. If this becomes a burden for you, please just cut me off (i.e. tell me). The last thing you want is for the blog to be a source of constant irritation... :)

5:04 PM  
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