SCOTUS and Diversity

The Supreme Court heard two cases this week related to policies in Seattle and Louisville to promote racial diversity in public schools. (Links are to the oral arguments.)

Findlaw has an overview of the relevant Supreme Court cases for education deriving from the 14th Amendment. One past decision that caught my eye was the Swann (1971) case, described as follows:

Because current attendance patterns may be attributable to past discriminatory actions in site selection and location of school buildings, the Court in Swann determined that it is permissible, and may be required, to resort to altering of attendance boundaries and grouping or pairing schools in noncontiguous fashion in order to promote desegregation and undo past official action; in this remedial process, conscious assignment of students and drawing of boundaries on the basis of race is permissible. Transportation of students--busing--is a permissible tool of educational and desegregation policy, inasmuch as a neighborhood attendance policy may be inadequate due to past discrimination. The soundness of any busing plan must be weighed on the basis of many factors, including the age of the students; when the time or distance of travel is so great as to risk the health of children or significantly impinge on the educational process, the weight shifts.

The Court here was analyzing remedies for past discrimination by school district officials. But what if there has been no past discrimination in the location, quality, and attendance of public schools?

From the descriptions of the case and my quick skimming of the arguments, it seems that some students are denied opportunities available to others solely based on their race. I do not see how this can be reconciled with the Equal Protection Clause as it has developed through the two University of Michigan cases. In the undergraduate case, a majority of the Court ruled that the admissions system (a point system that awarded extra points for members of minority groups) was too "mechanistic." It seems that these two systems are even more mechanistic. I'm guessing this will be 5-4 to strike down both systems.

So what are school systems supposed to do to ensure Equal Protection? In a degenerate way, having only one school in each district would do it, as would having completely random assignments if there are multiple schools. Beyond that, we could start with a system of schools constructed and staffed as similarly as possible and allow choice, requiring that every school accept all applicants. As long as those two requirements were maintained--identical offerings and a requirement to take all applicants--then there should be the presumption that everyone has the same opportunities. But this would do nothing to ensure "diversity" as it is being used in this context.

Justice Alito

The Senate voted 58-42 to confirm Samuel Alito's nomination to the Supreme Court, with one Republican voting against and four Democrats voting in favor.

David Kirkpatrick of the New York Times provides an interesting analysis, in "Two Nominee Strategies. One Worked," particularly with respect to Monday-morning quarterbacking by the Democrats:

As the last obstacles to confirmation faded away Monday, Democratic aides said their party had initially expected Judge Alito to live up to his reputation as "Scalito," suggesting a conservative firebrand in the mold of Justice Antonin Scalia. Failing to adjust to his meekness, Democratic aides admit they searched too hard for scandal in Judge Alito's past.

And some gloating by the White House:

The White House, meanwhile, sought to take advantage of Judge Alito's low-key, almost shy demeanor to build sympathy for him. They say they succeeded beyond all expectations when Judge Alito's wife, Martha-Ann, walked out in tears from his confirmation hearings.

"Any time they are yelling, preaching, lecturing, and you are cool and calm and breathing deep, you are winning," the administration official said the White House team told Judge Alito. "What that means on television sets where the American people are watching this is, you look good and they look bad. It was the central operating premise."

And what seems to be an accurate assessment by Senator Reid's spokesman:

Jim Manley, a spokesman for Senator Harry Reid of Nevada, the Democratic leader, agreed. "It was a classic rope-a-dope," Mr. Manley said, referring to the boxing tactic of leaning against the ropes to let an opponent exhaust himself punching.

In light of my last two posts on the topic, I don't think that there was much that the Democrats could have productively done here. This confirmation process is broken and needs to be repaired. Toward that end, perhaps another "centrist" group of Senators will coalesce around the idea of agreeing to vote against the confirmation of any nominee who refuses to answer sensible questions about prior about the opinions in prior Supreme Court cases.

Democrats and Alito

On Thursday, the Rockefeller Center was pleased to welcome Nan Aron, President of the Alliance for Justice to speak about "The Politics of Judicial Selection and the Future of the Supreme Court." With the Alito hearings concluded but the vote not yet taken, we timed this one right. (See this article in The Dartmouth for news coverage.) It was a pleasure to meet her and to hear her ideas. As much as I disagree with most of them, I certainly respect the influence she has in the judicial nomination and confirmation process. She's a fine example for our students of entrepreneurship in the public sector.

As I listened to her presentation, I couldn't help but be reminded of the old quote about the 1972 election, in which a McGovern supporter says, "I can't believe Nixon won. I don't know anyone who voted for him." Her assertions that the people of the country would prefer that Alito not be confirmed just don't square with the observations we can make about the process:

1. Judge Alito fits the profile of the nominee that we expect from President Bush.


2. John Kerry did not win the 2004 election.


3. Polling data suggest support for Alito's confirmation that is in keeping with the 2004 election results.


4. Democratic Senators in states that could go either way in the next elections are voting for Alito's confirmation, like Byrd (WV), Johnson (SD), Nelson (NE).

(h/t to Powerline for the links in the last two points)

Wisely, I think, she did not advise the Democrats to filibuster. We leave that for those Democrats who don't expect to face strong competition for re-election. And it's fine for them, but it will be rough on their fellow Democrats if they go ahead with it. I cannot say it any better (and I certainly say it with less credibility) than Andrew Seal, writing at The Little Green Blog:

Just when will it be ok to say that the liberals from the generation of the 1960s have no idea what they're doing and never did?

When can it be said that Democrats are the minority party because we never tried to be the majority, post-New Deal? We did everything to win short of convince 50.1% of America that our ideals are worth voting for. And now we wonder why they don't.

When can it be said that some of the ways we fought for the liberties we now strive to protect created the very attacks we now attempt to repel?

When can it be said that a NASCAR dad can be trusted as much as a college professor to know what's good for himself?

When can it be said that if we do not have faith in the American people, we cannot expect or demand their faith in us?

When can it be said with conviction that America will overcome the challenges and threats—domestic and foreign—that it faces, as it always has? That Americans as citizens have an unshakeable bedrock of civic commitment and democratic ideals that we, as Democrats, can and must rely on rather than try to circumvent?

The second point is particularly important--in electoral politics, all that matters is winning a majority in a majority of the contests. The Senators contemplating a filibuster would do well to remember that they could elevate their station from "Ranking Minority Member" of their committees if they made it easier for enough of their fellow Democrats to win their Senate elections, too.

Scrapping the Hearings

Finally, a sensible idea about confirmation hearings:

Supreme Court nominees are so mum about the major legal issues at their Senate confirmation hearings that the hearings serve little purpose and should probably be abandoned, Democratic Sen. Joe Biden said Thursday.

"The system's kind of broken," said Biden, a member of the Judiciary Committee considering the nomination of Judge Samuel Alito.

"Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues," such as a president's authority to go to war, said Biden.

As the committee headed into its fourth day of hearings on the Alito nomination, Biden told NBC's "Today" show that a better solution might be to skip hearings and send nominations straight to the Senate floor for a vote.

"Just go to the Senate floor and debate the nominee's statements," the Delaware senator said, "instead of this game."

That was once standard practice. Until 1925, Supreme Court nominees were not expected to testify before a committee, and their nominations were sent straight to the floor, according to the Senate Historical Office.

Given the way the hearings are currently conducted, that would be an improvement. If a process that is supposed to reveal information does not reveal information, then by all means, don't waste everyone's time. However, it would be fairly straightforward to fix the system. It would just take bipartisan agreement that any nominee who failed to answer questions of the form:

In recent case X, which of the opinions offered do you believe to be the best legal reasoning and why?

would not be voted out of the Judiciary committee. That question is completely legitimate--it places prospective petitioners before the Court at no disadvantage, since sitting Justices have had to answer the same questions and write those opinions.

More on Alito

I came across two interesting pieces about the Alito nomination that I think are worth a recommendation.

The first is by John Hinderaker at Powerline, addressing Alito's dissent in the Casey decision and what it may or may not tell us about what type of Justice he would be:

If you are an abortion opponent and read Alito's dissent, you will likely be disappointed. It is technical and dispassionate; the issue on which Alito differed with his colleagues was whether the notification requirement constituted an "undue burden" on the right to abortion, under the Supreme Court's jurisprudence as it then existed. The opinion conveys no hint of Alito's own views on the topic of abortion, or even of his opinion as to how (if at all) the Constitution should bear on the subject of abortion. Rather, and somewhat ironically, his dissent is an effort to follow the twists and turns of Justice O'Connor's various opinions on the topic of "undue burden," and apply them to the record before him. The most one can fairly say, I think, is that Judge Alito's dissent in Casey does not evince any reflexive hostility to restrictions on abortion, and does reflect what most conservatives would regard as an appropriate deference to the legislature's role as arbiter of public policy. Anyone looking for the sort of fiery language that sometimes enlivens, say, Janice Rogers Brown's opinions, will be disappointed.

A judge on the Court of Appeals, like a District Court judge, takes Supreme Court jurisprudence as he finds it. His opinion as to whether the Supreme Court's rulings are right or wrong is entirely irrelevant. His duty is to apply the relevant Supreme Court decisions to the case before him, as best he can. Thus, in an area like abortion where Supreme Court precedent is relatively plentiful, reading an appellate judge's opinions is like reading tea leaves: one is unlikely to pick up more than obscure hints as to the judge's own views.

The other piece is by Norman Ornstein of AEI, in Roll Call, writing about Alito in comparison to Chief Justice Roberts:

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce--and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.” Whatever it is, it’s not judicial restraint.

Roberts is a very conservative guy, and a strict constructionist--one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

I share much of this view of legislative primacy in the Constitution (it is reflected in my disagreements with Bibamus in the last post's comments, for example). I would like to see more examples from Alito's rulings to figure out how much of an issue this should be in his confirmation.

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Alito's Way

I'll join the chorus of people right of center who are pleased that the Miers nomination was withdrawn and that the President nominated Judge Alito for associate justice. Ann Althouse has been making several excellent posts, including one that links to this AP story. My own view on the Miers nomination was that the President tried to deliver a solid conservative vote in the way that has become customary in the post-Bork era--without having to reveal the nominee's judicial philosophy during the confirmation process.

Admirably, and to the benefit of the country, when the conservative base didn't seem to get the message, the President responded by sending it in an unmistakable way, with a judge with solid conservative and intellectual credentials and over a decade of judicial opinions. Let's call that Alito's way. Since these Supreme Court confirmations seem to reduce to the abortion issue, here (quoting from the article) is why the President's message to his base is so clear:

Among his noteworthy opinions was his lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion," Alito wrote.

The Supreme Court, in a 6-3 ruling, struck down the spousal notification, but Chief Justice William Rehnquist quoted from Alito's opinion in his dissent.

That's clarity.

I have to say that I am sympathetic to the reasoning behind Alito's opinion. I firmly believe that no government should have the power to compel a woman to endure childbirth if she decides she doesn't want to. I have wrestled with the competing claims--that one wins. But laws regarding notification don't presume that power. They may have the outcome that an abortion is avoided. If the state legislators in Pennsylvania, on behalf of their constituents, have decided that avoiding that outcome trumps other social considerations, then they should by all means enact such a spousal notification law. This is an issue that should be resolved in Harrisburg, not Washington, DC.

And my belief that with a Justice Alito on the Supreme Court, more issues will be resolved by legislatures rather than courts, is why I hope Alito is confirmed.

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SCOTUS Confusion

I share the general surprise at the President's nomination of Harriet Miers. I posted a month ago about how I thought O'Connor's replacement would be chosen. I met Ms. Miers while I worked at CEA, when she was Deputy Chief of Staff. I would occasionally substitute for a colleague at so-called "deputies" meetings that she convened, during which the key assistants to the principal Presidential appointees would make sure that all of the offices within the Executive Office of the President were working in concert on the White House's agenda. I never observed her as a "pit bull in size 6 shoes." In fact, quite to the contrary, she was if anything exceedingly deferential in those few meetings I observed. That's no crime--there were some extremely talented people in that room (NEC, Legislative Affairs, NSC, and the Office of the Vice President always stood out). I was quite deferential, too. All of the positive things people are saying about her character ring true.

With no disrespect intended to Ms. Miers, I agree that there are probably a thousand resumes more impressive than hers for this position, and if you are accustomed to thinking of America as a meritocracy, that's enough to generate some disappointment. Stepping back from that initial reaction, I think that Todd Zywicki provides a useful way to think about what her nomination represents:

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law. This is, of course, precisely why Bork was taken down as well. Rehnquist, by contrast, may have changed the voting patterns of the Court but did not change the legal culture through intellectual leadership. Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).

The opportunity that was lost was to help shift the Court through the intellectual argument. That's a fair point. The surprising aspect of this commentary, which is echoed in many places on the political right, is that there is doubt about Miers' likely voting patterns. Are you kidding? She has been on this President's staff for a number of years. How could anyone but a "Bush Conservative" tolerate that proximity for so long without having views that were wholly compatible? The conservatives have something to worry about in charges of cronyism, but I would be shocked to see a Justice Miers anywhere but in the Scalia-Thomas wing of the Court.

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Chief Justice as Umpire

I liked Judge Roberts' opening remarks, but his analogy comes up short:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

[...]

Mr. Chairman, I come before the committee with no agenda.

I have no platform.

Judges are not politicians who can promise to do certain things in exchange for votes.

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Sometimes, when a player or manager behaves so contemptibly and outside the bounds of decency, it is the umpire's job to run him out of the game. The Chief Justice doesn't quite get to do that. That power resides with the fans, as it should.

Roberts for Chief Justice

The President announced this morning that he would nominate Judge Roberts for Chief Justice, with confirmation hearings to begin after Chief Justice Rehnquist's funeral. This seems like the obvious choice--there is no coherent opposition to his nomination to the Court so far and this move spares the President a third confirmation hearing. Having newly secured Justice O'Connor's willingness to stay on until a second nominee is confirmed, I don't think much about Roberts' confirmation hearings will be controversial.

Perhaps that is not so with the second nominee, yet to be named. Pressure will intensify to nominate a woman, now that this vacancy is more specifically associated with O'Connor. I think attention will turn to Edith Hollan Jones, Edith Brown Clement, and Priscilla Owen.

With the new position associated with O'Connor, and the now more evident association of Roberts with his mentor, the very conservative Rehnquist, there may be some abatement in the pressure for the President to appoint someone who appeals specifically to the right-wing of his party.

This narrows the field quite quickly to Clement. She's been confirmed for two prior positions by the Senate, each time 99-0. She's known for being conservative, but the issue of abortion--the real lightning rod in confirmations--does not seem to appear among her most controversial opinions. And, not to be overlooked, she has a strong connection to Louisiana, first at Tulane Law School, but more importantly, in her two Senate-confirmed Judgeships.

I would be very surprised if someone else were nominated.

I Like this Kind of McCarthyism

Via a dissenting opinion at Powerline, I am directed to a post by Andrew C. McCarthy of the Foundation for the Defense of Democracies that gets the issue of why asking a Supreme Court nominee about important precedents is an appropriate line of questioning. Read the whole thing. Here's the best excerpt, using Roe v. Wade as the example:

If you think Roe is good law, if you think it was well reasoned, if you think it reached the correct result, then you are basically saying that you think it is proper for a handful of lawyers, bereft of compelling precedent, and without competence in dynamic and relevant disciplines like medical technology (while unable institutionally to become competent by holding hearings like Congress does), to impose their policy preferences on the American people, and thus insulate those policy preferences from the democratic process.

Unfortunately, opportunity for reasoned debate on Roe has been overwhelmed by the disingenuous rights-rhetoric of the Left, abetted by the Right’s self-defeating complicity. In the current clime, saying “I think Roe was incorrectly decided,” reduces the declarant to a caricature Cro-Magnon who would have “women forced into back-alley abortions,” as Senator Ted Kennedy (D., Mass.) slanderously said of Judge Robert Bork nearly two decades ago.

In fact, all the statement really means is that the decision whether and under what circumstances to permit abortion — like every other issue the Constitution does not speak to directly — should be in the capable hands of Americans and the politicians accountable to them, rather than the judiciary. It is baffling that, in an age of judicial excess, conservatives continue to slog away in the abortion box rather than offering a different, resonant way for people who care about self-determination to think about Roe.

I don’t much care what Judge Roberts thinks about abortion. If Roe were reversed tomorrow, there would still be plenty of abortion. But it would be regulated by the people, not the judges. I would need to care about what Judge Roberts thinks of abortion about as much as I currently need to care what Justice Ginsburg or Justice Scalia thinks the drinking age in Connecticut should be — which is to say, not at all, because it’s frankly none of their business. That’s not what we hired them for.

A while ago, I poked fun at some influential Democrats for (to make a long story short) admonishing elected Democrats not to put their principles up against their opponents' and subject Social Security reform to vigorous debate. The same principle applies here to the Republicans. Insist that Roberts answer well posed questions about important precedents--and then defend his answers to the American people against the baseless charges of ideologues.

If you believe in democracy, if you passionately believe in self-government under our Constitution, then that's how you conduct yourself as a Senator, regardless of how other Senators or nominees may have conducted themselves in the past. You win the argument, with the salutary benefit of having something to campaign on in the next election.

Besides, exactly what element of Judge Roberts' resume would lead anyone to believe that he cannot excel in a confirmation hearing?

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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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Term Limits for Justices?

I commend the entirety of Bruce Bartlett's column, "18 years should be long enough," to your attention. In it, Bruce presents a persuasive argument that the Republic might be better served by consitutionally limiting the appointments of Supreme Court Justices for single terms of 18 years. The choice of 18 years is to allow their terms to be staggered at 2 year intervals.

This would ensure a regular pattern of turnover on the Court and, according to Bruce, lower the intensity of the aperiodic battles over nominees, like the one(s) we are about to experience. It would also have the salutary benefit of reversing the trends toward younger appointments and older retirements that Bruce documents, both of which seem to be responses to the politics of these nominations.

This one would be worth the trouble of amending the Constitution.

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SCOTUS Nominations

I know very little about playing hardball in politics. But it does seem like too much is being made out of the possibility that the Democrats will filibuster against a vote on a nominee for the Supreme Court.

My recollection of Supreme Court confirmations is that the nominees look pretty intelligent when they answer the Judiciary Committee members' questions thoughtfully and the members of that Committee look like idiots when they make speeches rather than asking questions. Nominees look silly when they refuse to give answers to reasonable questions. In my view, reasonable questions are things like, "Did you agree with the majority or the dissents in Kelo? Please explain why." Anything in their past judicial rulings or scholarly writing is also fair game. Hypothetical questions about cases that don't exist or specific cases that may be pending are not.

Okay, so suppose the President nominates someone who has an impressive record and who answers reasonable questions with thoughtful answers. What is the Democrats' recourse? Huge media blitz? Big deal. Most people now tune that out, because there will be ample talking head noise both for and against the nominee. Massive demonstrations with histrionics? Same as the media blitz. Worried about a repeat of the Bork nomination? Up the ante by nominating someone from an underrepresented group on the Court, like a woman or ethnic minority. There are several on the list of well qualified candidates that the President seems to be considering.

And, ultimately, if it looks like the nominee will receive a Senate majority, the Democrats could attempt to filibuster. Again, big deal. How long could they possibly sustain it? Some Democrats might defect, allowing a cloture vote, as the rest of the government's business comes to a halt. Just wait them out. They will look like idiots. All the President has to say is, "Judge X is one of our nation's most respected judges. S/he answered the Senators' questions in a thoughtful manner during the confirmation process. S/he is entitled to an up-or-down vote on the floor of the Senate." And he should say that and only that every day. Ultimately, he wins.

Another strategy would be to ask the nominee to withdraw, to bring the filibuster to a close, and then, at the first opportunity, make a recess appointment. This isn't as successful an outcome, but it is worth pointing out that recess appointments are actually written into the Constitution. Filibusters aren't.

The sentiment in this country is toward simple majorities and people getting along with each other. If the President nominates someone with appropriate qualifications who can thoughtfully answer the Committee's questions, then he will have the sentiment of the people behind him. He need only keep the focus on the Senate Democrats' refusal to act and he will eventually get his way.

For a very different opinion, by someone who knows a lot more about hardball in politics, see Patrick Ruffini's post from yesterday.

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Pass the Spittoon, SCOTUS Edition

I cannot believe the majority's opinion in Kelo v. New London. As Todd Zywicki put it, we now have government by the Honor System. The Fifth Amendment enables takings of private property only for public use and, even then, only with just compensation. "Public use" has to have a meaning other than "whatever the legislature thinks would be appropriate." Now it doesn't. Pity.

Here's the ironic part. The 5-4 majority was the liberals on the court (the 5 who aren't O'Connor, Rehnquist, Scalia, and Thomas). I would think that most liberals--vanguards of the poor and disenfranchised--will be the ones to rue the day that the Court allowed unseemly alliances between corporate interests and their political handmaidens to evict the poor and disenfranchised in the name of something as vague and manipulable as "economic development."

Julian Sanchez and Don Boudreaux also make this point very succinctly. Eugene Volokh takes us through an interesting thought experiment:

Now there are certainly other arguments in the dissents' favor. Perhaps Justice Thomas is right that the original meaning of the "public use" requirement was to mandate that the property be owned by the public or by a common carrier, and that we should therefore insist on this meaning. Or perhaps Justice O'Connor is right that without some such requirement, the government would have too much power to merely take property from one person to another, with no real public benefit. Or one could argue that as between (1) no takings, (2) takings of property to be owned and operated by the government, and (3) takings of property to be owned and operated by private parties, but for a public benefit, #3 is indeed more efficient than #2, but #1 is most efficient of all — and that we therefore should allow only #2, precisely because its inefficiencies will provide a natural deterrence to takings, and push the government more often into the best position, #1. I'm certainly sympathetic to finding some constitutional limit to government power here.

I would gladly allow the improvements of moving from #2 to #3, but the standard for what constitutes a "public use" ought to be that it is both a public good and that there is no other feasible way to obtain that public good. So it cannot just be for a railroad or a hospital--it has to be for a railroad or hospital that cannot be built any other way. If we had a better standard, then we could pursue the efficiency advantages of private implementation. But certainly not until then.

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