No Justice No Peace

Jed’s comment down in the Balls and Strikes convo has tipped me into saying a few things about the nomination process for Judge Roberts. Let’s start with his question:

So, say a conservative President, with a conservative-dominated Congress in session, nominates someone to be a Supreme Court Justice. What would y'all like to see happen during the hearings?

First, I would like all the parties in the Senate to give advice, possibly very specific advice, and for that advice to be taken seriously. We shouldn’t skip right to the consent part. Still, here we are.

I would like the Senators to discuss with the nominee the job of Supreme Court Justice (or, if appropriate, Chief Justice), what it entails, and how he would go about it. How does a Justice decide what cases to take? How important are unanimous decisions? How important is it to answer broad questions while deciding narrow cases? What is the difference between a bad law and an unconstitutional law? What are the issues that come up prima facie when individual rights conflict with the public good, and whose responsibility is it to prioritize? When is it appropriate to write a separate concurring opinion? How often should a Justice be persuaded by the other eight Justices? How can you tell if an opinion is usefully written? That sort of thing. It’s basic qualification stuff, but (a) that means it’s important, and (2) it’s an opportunity to have what one panelist yesterday called a national Teach-In about the highest court in the land. There will be disagreements about all that stuff, which should be aired now and then.

Then I would like the Senators to identify a few general areas where the courts are heading, and discuss those with the nominee. What limits are on the Executive when it comes to National Security? How primary is the right to access to court? Can the Congress legitimately exempt laws from judicial review? Is intellectual property like real property, and if not, how not? How extensive is the presumption of privacy? To what extent can inequities be assumed from social structures, and to what extent must redress of inequity be backed by specific finding of fact? To what extent can multinational corporations be regulated by the federal government? When property rights and personal liberties come into conflict, what needs to be considered, and does that change if the property is corporate? What deference should be shown to international courts? Or others; I am not an expert, which is why I like representative government.

Now, in a discussion of that kind, the Senate would get a feeling for the priorities of the nominee. It’s also possible that aspects of the nominee’s personal history would come into play, revealing inconsistencies, dishonesty or shortcomings. Each senator (particularly, of course, those on the Judiciary Committee) would then need to decide if this fellow is right for the job. It’s a tough job, with a tremendous amount of influence, and as a lifetime appointment, it should be made outside of short-term politics and the short-term deference to the Executive.

That is, where I think the Senate should, on the whole, defer to the Executive in its choice of people to fill Executive positions, outside of egregious cronyism, incompetence and lack of qualifications, when it comes to the Judiciary, it’s another matter. The President does get a wide choice, but the Senate should take its time and work out first what they want the job to be, and then whether this candidate is good for it.

Now, I do expect conservatives and liberals to vote different ways. I think the Senate (which is different from the House) should seek compromise as a matter of habit, but clearly there will be differences of opinion. At the moment, I think that there are probably, oh, 46 or 47 Senators who feel that, say, the property rights of corporations should really be given more deference. Similarly, I suspect that there are about that number who feel that, oh, the national security powers of the Executive should be untrammeled. There may be more. There may be sixty. I don’t know. I don’t know how Judge Roberts feels about those things. But I’d like to know both. A conservative Senate (at least a Senate whose largest faction is conservative, and whose majority party includes that faction) should address those matters publicly, and allow constituents to use that information in elections. And a nominee should accept that role, which may well mean being more forthcoming, more digressive, more hypothetical than is comfortable.

OK, moving on:

I honestly don't know whether the Democrats have the power to block this nomination. Do they? Would they have to filibuster to do it? Would that be effective?

When the committee brings the nomination to the floor, the Republicans have the votes to confirm it without any Democratic support. The Democrats can attempt to talk it to death, to prevent a vote. The Republicans would then need 60 votes to close debate and start the vote, and they don’t have 60 without a few Democrats. However, they can then appeal to the President of the Senate (I’m getting this slightly wrong, because I don’t want to bother looking it up) to rule on whether they do, in fact need 60 votes to close debate. The President of the Senate (whose name is Dick Cheney) would rule that they only need a majority. That ruling would be appealed by the Democrats, but the appeal would come to a vote, and the Republicans would only need 51 votes to sustain it.

So no. The only way the Democrats can block this nomination is with the assistance of two or three Republican Senators. There is no chance.

I'm really curious about whether Roberts has answered any questions in private about his leanings.

Almost certainly not, but who knows? In the past, there was a reticence on the part of both the Executive and the Judiciary when it came to specifics. I don’t think that such reticence has gone away completely, but it’s hard to tell. It’s legitimate for the nominee (or for a Justice) to decline to answer specific questions about specific cases that are pending, since you don’t want the legislature to be able to indirectly vote on a specific case that way. Furthermore, when actually on the court, the Justices ought to maintain a kind of nolo tangere, if you know what I mean, making it clear that they aren’t unduly influenced by politics. Of course, the Way Things Are Done means very little to Our Only President and his Aristocrats.

That said, I would love to know what Justice Stevens or Justice Bader Ginsberg think about this fellow. Are they looking forward to working with him? Are they hoping for a miracle?

... if a liberal President were nominating a Justice, would you want it to be someone who would interpret the Constitution to the best of his abilities, or someone who would vote in accordance with liberal beliefs?

Well, and what are liberal beliefs anyway? I would want someone who thinks about people as well as about words, who looks not only at the input of the Congress but the outcome in the world, and who believes above all that the law applies to everybody equally. I would want a Justice who understands that de jure equality is not de facto equality. I would want a Justice who believes, yes, that it is appropriate for the federal government to take action to protect the powerless from the powerful, and to improve the country and the civilization. I would want someone who understands the limitations of originalism, and who understands that the Founding Fathers did not always agree, and that context counts for something.

I also would want somebody who understands the difference between bad law and unconstitutional law. I would want somebody who understands the responsibilities and prerogatives of the Legislature and the Executive as well as the Judiciary. I want somebody who is reluctant to overturn precedent, but will do so despite that reluctance when necessary. I want somebody who is trying to make the judicial system work for the people in it—both plaintiffs and defendants, corporations, people, and states and judges and lawyers and all. I want somebody who can imagine voting the other way.

I want all of that. I know, that’s a lot to want. But there are 270 million people in this country and we only need nine for the court. I’ll settle for five.

If I were a Justice, would you want me to vote my conscience or my logic? I would never want you to vote against your conscience. However, I would like your conscience to be informed by logic. I would not want your conscience to be swayed too much by emotion in cases where the emotion is irrelevant. That’s one of the reasons why Your Humble Blogger (for instance) would make a lousy Justice, and would hate doing it. I don’t want to have to make hard choices.

chazak, chazak, v’nitchazek,
-Vardibidian.