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Thursday, July 14, 2005

Petition Time

It's petition time again in law-land: here's a copy of a letter signed by 100 or so law professors to the ranking members of the Judiciary Committee asking them to ask certain questions of any Supreme Court nominee.  Here's some key language:

"Because federal judges do not serve fixed terms of office, we believe it is critical that the Senate, in giving its Advice and Consent, undertake a searching inquiry to assure itself that judicial nominees meet the highest standards of character and integrity; that they will consider each case with an open mind; and that their views are within the constitutional mainstream.

We believe that the Senate's explicit authority to give its Advice and Consent to judicial nominations includes the power to consider nominees' beliefs about the Constitution and the role of the courts in interpreting it. We further believe that, in evaluating nominees, the Senate should be especially skeptical of nominees who approach questions of constitutional meaning from extreme, rigid, and divisive perspectives."

The letter proceeds to ask some general and specific substantive questions about the nominee's views on constitutional law and interpretation.

It seems largely agreeable enough at first glance.  A few quibbles, though.  First, asking substantive questions on a nominee's legal views will do little or  nothing to reveal a candidate's character and integrity, or so it seems to me.  Thus, the first reason the letter gives in favor of a "searching inquiry" does not justify the questions the signers of the letter propose. 

It is also not clear either what it means to consider each case with an open mind, or what the questions they propose have to do with this quality.  It seems to me this "open mind" idea is here either wrong, trivial, or irrelevant.  If they mean a nominee should have an open mind on substantive questions of constitutional law, then surely the proper answer to each of their questions is, "Let's wait and see," and so there can be no point in asking any of them -- unless they propose to oppose any nominee who actually answers their questions.  But surely, in any event, this is not what they mean by keeping an open mind.  After all, is it a desirable judicial quality to have a nominee who says of, say, the age limitations for President, "I'm keeping an open mind on that point?"  If I'm right and the signers don't mean that at all, then all the phrase likely means is that they would like a judge to be receptive to the facts.  Perhaps they also mean that they would like a judge to be receptive to new legal arguments -- although I suspect many of the signers would not much appreciate a nominee who said, "I believe Roe was correctly decided -- but if you can show me that the Constitution does not guarantee any right to abortion, I'll be the first vote to overrule it."  Perhaps I am being unfair here.  In any event, it seems to me that their substantive questions ultimately are irrelevant to the question of open-mindedness.  A nominee can have strong views on constitutional law and yet be open-minded as to the facts, or open-minded as to novel legal arguments.  Their substantive questions are simply not designed to shed any light on these possibilities. 

The phrase "within the constitutional mainstream" seems also to me to be largely unhelpful -- slightly but not much more helpful than the phrase "judicial activism."  First, the signers don't define the phrase.  The most important question here is, mainstream according to which interpretive community?  Sitting judges?  The legal academy -- and if so, why?  Why (or why not) take "We the People" as the appropriate community?  Nor do they describe how broadly the constitutional mainstream should be read, even if we could identify the relevant community of interpreters.  Assume for the sake of argument that Justice Thomas is not within the constitutional mainstream, broadly understood, although I only raise it as an assumption.  Isn't Justice Scalia at this point well within the constitutional mainstream? There are plenty of originalists about, on the bench and in the academy.  He may be on the right-leaning portion of the mainstream, but what of it?  Or do they mean a nominee must lie at the median point of the mainstream -- in which case no Scalias, but also no Reinhardts or Barketts or Tushnets are fit for the Court?  I doubt that; I assume they mean "within the . . . mainstream" to mean no utter extremists.  If so, this criterion lacks much usefulness; of the current crop of potential nominees, it might knock out Brown, but that's about it. 

In any event, the more "extreme" the nominee, the less necessary the signers' proposed questions will be in identifying the nominee as extreme.  Really, given an appropriately capacious understanding of the range of views held within the "mainstream," the questions are designed not to sort mainstream from non-mainstream nominees, but to sort "acceptable" from "unacceptable" "mainstream" views.  (I'll note parenthetically that the signers fail to provide any normative justification for the demand that a nominee fall within the "mainstream," however identified; but I'm feeling generous and will leave it at that.)  

In short, given that the signers say a "searching inquiry" is "critical" to ensure that nominees fit their (unjustified) criteria of integrity, open-mindedness, and mainstreamitude, I must conclude that they have failed to justify any of the particular substantive questions they propose in their letter.  Maybe they are right that these qualities are "critical" to Supreme Court Justices -- a fairly banal proposition, as long as they fail to fill in the details of how they understand those terms -- but their proposed questions have nothing to do with these qualities.  The point is not that Senators are not free to ask the questions the signers propose -- only that the signers have themselves failed to justify asking these questions, at least on the grounds they supply.

As for the other paragraph I've quoted, I have little problem with the first sentence, which says that the Senate may -- not must -- consider nominees' beliefs about the Constitution and the role of the courts.  They then add that the Senate "should be especially skeptical of nominees who approach questions of constitutional meaning from extreme, rigid, and divisive perspectives."  If this means "no utter kooks," then the assertion is unobjectionable because banal.  If they mean something more, I should like to know exactly what they mean.  Is Justice Scalia's belief in the controlling force of original meaning really unacceptably extreme, rigid, or divisive -- even though he also believes at least to some extent in stare decisis, and in some translation of meaning?  Was Justice Brennan's approach to constitutional interpretation not equally extreme?  Is Blackmun's "I shall no longer tinker with the machinery of death" unacceptably rigid?  Would any of the majority members of the panel in the Ninth Circuit's Pledge of Allegiance case be unacceptably "divisive?"  And what does it mean to be "especially skeptical" of such nominees?  Under what circumstances would the signers be willing to have their skepticism laid to rest?

As for their proposed questions themselves, I encourage you to read them -- perhaps all law-prof bloggers should be forced to answer them.  Were I a nominee, I expect I might answer questions 1-2, 5, and 8-10 in broad strokes, and either refuse to answer or give very broad and basically unhelpful answers to questions 3, 4, 6-7, and part of question 9.  What is especially striking is that, although they find two different ways to ask about abortion, they don't ask a direct question on a key issue, particularly for originalists: the role and limits of stare decisis.

Not a very helpful letter, ultimately.  (Go figure.)  Or maybe I'm just bitter because I wasn't asked to sign it.    


Posted by Paul Horwitz on July 14, 2005 at 05:47 PM in Law and Politics | Permalink


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» Blog Round-up - Friday, July 15th from SCOTUSblog
Sentencing Law & Policy has this weekly round-up of happenings at the Court as they relate to sentencing and criminal law. Senator Schumer has released this letter signed by more than one hundred legal scholars designed to advise Senators on... [Read More]

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Tracked on Jul 16, 2005 12:13:40 PM


I think one thing you can pull from looking at the entire set of questions is that we should know whether there is a consistent and coherant jurisprudential philosophy for someone being nominated. As far as what does divisive and extremem mean, the terms themselves are pretty self explanatory. The law does not exist solely in the minds of lawyers or in the hands of politicians. I think we are looking at a wholistic question. .. Just a quick two cents.

Posted by: Joel | Jul 19, 2005 1:40:31 PM

As to one comment, the letter has italics that does give a partial answer to the question as to the signatories views.

The questions are of some use, I think, since they do focus on one aspect of the choice: constitutional principles. Only some are examined, but that's okay: it's not meant to be a comprehensive list.

As to other qualifications, as in integrity, experience and so forth, these too are important, but I guess the concern of this letter itself.

I also do not quite know what "nominees who approach questions of constitutional meaning from extreme, rigid, and divisive perspectives" exactly means.

What is "divisive?" Is this a code word for Scalia and Thomas' penchant for strongly written opinions? "Extreme" and "rigid" is a bit vague too; the signatories probably do not think Black and Douglas was "extreme" or "rigid" in their views of the 1st Amendment.

Interesting letter ... nothing too special. Don't worry about not being asked to sign it. :)

Posted by: Joe | Jul 16, 2005 6:36:28 PM

Justices Ginsburg and Breyer flatly refused to answer questions about specific cases and issues that might come before them on the court during their confirmation hearings. I'm assuming that these academy members feel that the Senate failed to properly vet them.

Is thinking that Roe v. Wade has little in the way of any constitutional basis within or outside the judicial manistream?

Posted by: MJ | Jul 15, 2005 1:49:45 PM

What it means, I suspect, is: "Justice Breyer, Ginsberg or Souter Mk.2, please".

Great critique, though. :)

Posted by: Simon | Jul 14, 2005 10:13:27 PM

Interesting questions in that letter. I'd love to read the signatories' views on those issues. Where is the link to their answers?

Posted by: Mike | Jul 14, 2005 7:12:45 PM

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