This Casing Isn't Kosher

Professor Vikram David Amar has an editorial in yesterday's New York Times, "Casing John Roberts," that provides some interesting ideas about how the Senate should approach the confirmation process for Judge John Roberts. The first part sounds familiar (second paragraph here) and makes a lot of sense:

In its confirmation hearings, the Senate should ask Judge John G. Roberts to analyze specific cases that have come before the Supreme Court in the past. That is the only way to get a meaningful sense of where he may move the nation's jurisprudence.

And yet many senators have said that while they may properly ask a nominee about his general approach to judging and interpretation, they should not ask for detailed views about actual cases, because in doing so they will force the nominee to prejudge issues that may come before him later.

This is nonsense. Of course the nominee should not make, or be asked to make, promises about future rulings. But the disclosure of specific views about past cases does not commit the judge to rule in any particular way in the future. He remains free to change his mind if he is persuaded by sound legal arguments, the same way sitting justices are free to do so.

A bit later, he suggests that the senators on the Judiciary Committee "should spend August compiling their short lists of cases [Supreme Court rulings] to bring up at the hearings." I'm still with him. He then lists five recent blockbusters on his short list, with some of his comments. I did my own reading up on these cases, and my comments are in green.

GRUTTER v. BOLLINGER (2003) Justice Sandra Day O'Connor led four others in allowing the University of Michigan Law School to consider race in admissions in order to assemble a diverse student body. To agree with the four dissenters is to condemn virtually all race-based programs. It is also to minimize or ignore national reliance on Justice Lewis Powell's writing in University of California v. Bakke, an opinion 25 years earlier that embraced careful race-based diversity plans.

That this use of race-based preferences was "careful" is succinctly refuted in Justice Scalia's opinion in the case:

I join the opinion of The Chief Justice. As he demonstrates, the University of Michigan Law School's mystical "critical mass" justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.

If "virtually all race-based programs" at state-sponsored institutions are appropriately described as such, then they should be condemned.

STENBERG v. CARHART (2000) In another 5-4 ruling with Justice O'Connor in the majority, the court struck down Nebraska's ban on late-term abortions. The Stenberg opinions reflect three distinct positions on Roe v. Wade: overrule it (Chief Justice Rehnquist, and Justices Antonin Scalia and Clarence Thomas); preserve it, but limited to its narrowest core (Anthony Kennedy); or apply its protections more expansively (the majority).

It is hard to see why this case would make the short list. It basically came down to whether any law restricting abortions (in this case, a ban on partial birth abortions) had to contain an exception regarding the health of the mother, as Justice O'Connor insisted. Evidence was presented that suggested that the health of the mother would not be better protected by this method than others, and Roberts could simply agree with that and move on. The abortion case on my short list would be Planned Parenthood v. Casey (1992), which provided several modifications of the "right to choose" that would give a better picture of the nominee's views.

ATKINS v. VIRGINIA (2002) A majority of six (including Justice O'Connor) held that executing mentally retarded criminals violates the Eighth Amendment ban on cruel and unusual punishment. The opinions assess the relevance of foreign law to constitutional rights, and they discuss whether and how the Constitution's meaning evolves.

This is a good case to ask about. I think the majority opinion in this case was judicial overreach. I cannot say it any better than Chief Justice Rehnquist in the opening of his dissenting opinion:

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime.

If a nominee doesn't agree with this reasoning, I would be concerned. It is not about whether I would support legislation that allowed the execution of this group of criminals. It is about whether the authority to make such a decision resides with the state legislatures or not. I see no reason why it doesn't.

McCREARY COUNTY v. A.C.L.U. (2005) Justice O'Connor joined four others to end Kentucky's display of the Ten Commandments in its courtrooms. To embrace the dissents is to abandon the requirement of government neutrality toward religion and instead to permit significant government promotion of Christian doctrine.

I think this is another interesting case to ask about (though less interesting than those that pertain to the Constitutionality of, say, vouchers that allow children to attend parochial schools instead of public ones). As with the Grutter case above, I think Amar's characterization of the dissents is overstated. He cannot really be arguing that the laws of Kentucky bear no influence of the Ten Commandments. A prominent display of the Ten Commandments in a courthouse does not establish a religion, nor does it inhibit the free exercise of the religion. So what's the problem? I would like to know Judge Roberts' views on the First Amendment and religion in the public sphere, from the Everson (1947) case to the present.

SEMINOLE TRIBE v. FLORIDA (1996) In this seemingly technical 11th Amendment dispute about whether states can be sued in federal courts, Justice O'Connor joined four others to override Congress's will and protect state prerogatives, even though the text of the Constitution contradicts this result. Questions about this case will test the nominee's commitment to carefully following the literal text of the constitution.

I confess, I cannot follow the issues here. This will be the part of the hearings where I channel surf--or blog.

I enjoyed the exercise of going through the various cases as an amateur. It is interesting to see what parts of the Constitution and subsequent laws where we will insist on neutrality in our public institutions and where we will not--in my case, race and religion, respectively.

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