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Wednesday, August 10, 2005

Odds and Ends (Mostly Odds) on Roberts

I'm back from bucolic lake country in Maine, where the subtle linguistic distinctions between "camp," "camping," "cabin," and "house" tax the cognitive capacities of we hapless summer people.  Let me ease back into this blogging thing with a couple of WTF moments from recent stories on the Roberts nomination.

First, of course, is the NARAL ad, which is discussed and critiqued here.  Although I suppose it might have been motivated by principle, I think the argument made by NARAL is so poor that the only principle I think might apply is "we must do anything possible to stymie a potential anti-abortion vote."  More likely, I think the goal here is the goal that motivates many moves by single-issue interest groups, left or right: galvanizing the faithful and raising money and attention.  Certainly NARAL's apparent view -- that "America can't afford a Justice whose ideology leads him to excuse violence against other Americans" -- is, in context, either incoherent or absurdly overbroad.  The question that gave rise to this assertion, remember, was whether a Reconstruction-era civil rights statute applied to certain kinds of conduct.  If NARAL's view truly believes that someone whose legal views will not in every case extend to criminally or civilly punish individuals accused of violent actions is not fit to sit on the Supreme Court, I feel pretty comfortable saying that I too am unqualified to sit on the Court.  And Dan, and Ethan, and Kaimi.  (Future headline: Markel "Unqualified" For Court, Colleague Said.)  Also pretty well every other lawprof and lawyer in the country.  Surely each of us would at times "excuse" a violent act, if by that one means that we would find that a particular law did not cover the activity, or that the defendant's constitutional rights required dismissal, acquittal, or retrial.  As an aside, may I say that I am all for productive and tough questioning at the hearings; but from a political point of view, I think the left does itself little good (except for fundraising) by heating up the stakes of a losing battle. 

The other thing I want to point to is a quote from Larry Tribe in the NY Times this weekend.  The article in question (here) noted that Roberts had ghost-written a draft article and a memo, while at Justice, questioning the constitutional footing of the right to privacy.  The money shot is after the jump:


Here are the relevant quotes:

* * *

Laurence H. Tribe, a law professor at Harvard, said the views expressed in Judge Roberts's draft article were at the time "still at least marginally defensible although, by my lights, misguided even then."

This was no longer the case, Professor Tribe said, after Judge Bork's nomination was defeated, an action that he and many other liberal law professors supported. "It was not until the mid-1980's," Professor Tribe said, "that intervening developments could be said to have exposed such views as resting on so cramped and narrow a concept of liberty that any nominee committed to a project of restoring them to the law posed a danger to the American Constitution."

* * *

Leave aside the apparent implicit reference to the much-blogged-about-and-disputed "Constitution in Exile" project.  I guess I don't understand either what changed to render the statements made in Roberts' writing (which may or not represent his views then or now) defensible in the early 80s but indefensible after the mid-80s, or what the "intervening developments" Tribe refers to were.  My most charitable interpretation is that Tribe means people realized the critique of Roe was not freestanding, but tied to a broader jurisprudential program.  But were not such views apparent before the mid-80s?  My less charitable interpretation is that Tribe's statement is not intellectually defensible, and that the intervening developments were either 1) the realization that liberals might lose the Court, and specifically Roe, or 2) the realization, after Bork's defeat, that one could win on this issue in a confirmation fight.  But I sincerely want to open up the comments section to see whether anyone can supply a more charitable interpretation.

Posted by Paul Horwitz on August 10, 2005 at 02:05 PM in Law and Politics | Permalink


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At the risk of opening another argument about the Constitution's specific protections of privacy, and how the "general right" to privacy is, at "best" only very tenuously connected to the text (and at "worst" is actively precluded by it), I can't let this slide entirely.

My view is that Paul's absolutely correct that "the critique of Roe was not freestanding, but tied to a broader jurisprudential program", and the equal parallel is that "the decision in Roe was not freestanding, but tied to a broader jurisprudential program".

I suppose I would turn around Prof. Tribe's comments to say, "that intervening developments could be said to have exposed substantive due process as being so far divorced from the text and structure of the constitution that any nominee committed to a project of using it and applying it to the law poses a danger to the American Constitution." I believe that the jurisprudential program supported by Prof. Tribe, among others, is little more than a thinly-disguised (and fundamentally invalid) attempt to essentially liberate judges from the text of the Contitution, and restore the common-law function of the Judge as lawmaker. I'm not accusing them of treason and conspiracy moste darke, just observing that this is the inevitable, and entirely predictable, result of the medicine they prescribe for the sickness of what one can only presume that they believe is a constitution which has no legitimacy in the first place. They retain, of course, the lingua franca of a constitutional, civil law system, because if they did not retain its structure, they would behead the very beast they hope to tame; yet they abtract the idea of the constitution from what the constitution actually provides, and having done so, liquidate the actual text. Roe is a perfect example of the line of thinking, insofar as it cannot be supported in the text or structure of the constitution, or in the longstanding practises of the nation adopted under the constitution. That it exists declares that it must rest on something - and if it does not rest on what the constitution says, what else are we left with?

It's not that I don't believe in incorporation - it's that I don't believe that the due process clause can support the weight that it is being asked to bear, and would rather sustain incorporation under the priveleges and immunities clause, extending the prohibitions on the Federal Government's sphere of action to the States, without making the scope of those rights an indefinite pool to be contracted or expanded at the will of the Supreme Court. The substantive due process version of incorporation that sprung up since the Slaughterhouse Cases / Gitlow v. New York / Allgeyer v. Louisiana, and so on, runs fundamentally counter to my bedrock views on what the constitution is and what constitutional rights are.

It is unclear to me that Judge Roberts shares these views, and despite the delusional bleating of NARAL - an organization desparately seeking an enemy, thrashing and flailing in the shallow waters of irrelevance - and the ACS, it is far from clear that Judge Roberts is an enemy of substantive due process. For these reasons, I do not offer him the unqualified support many of my fellow Republicans are falling over themselves to offer. As much as I hate to admit it (and you have no idea how much it pains me to type this), Ann Coulter is right - "Republican presidents – especially Republican presidents named "Bush" – have lost the right to say "Trust me" when it comes to Supreme Court nominations. [Among] [t]he other reasons are: Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O'Connor and Anthony Kennedy. For these reasons, I am not opposed to Judge Roberts' confirmation, merely suspicious. He's a conservative, of that there's no doubt, but the question of whether he's an originalist has been answered in the negative, and the extent to which he sympathises with that philosophy is very uncertain.

Posted by: Simon | Aug 11, 2005 12:16:54 PM

The charitable spin on Tribe's quote (I hasten to add that I do not endorse this position, but do believe that it's defensible) is that the Bork's hearings represented a kind of congressional ratification of the Supreme Court's decisions (dating back to the 1920's) recognizing and protecting a constitutional "right to privacy" under the rubric of substantive due process. The idea is that even assuming that the jurisprudential foundations of those decisions were shaky when they were issued, the Senate -- in defeating the Bork nomination after a lengthy and remarkably open debate about interpretive methodology -- effectively endorsed the idea that the Constitution must be read to protect unenumerated rights that cannot readily be identified merely on the basis of history and tradition. This argument relies on the fact that the Congress has an independent prerogative to weigh in on matter of constitutional interpretation, and that the Bork episode was the clearest example in recent times in which it did so. Thus, although there may have been considerable question about the legitimacy of the privacy/sdp cases in the early 1980s, Bork's defeat resolved those doubts and (at least for now) establishes that originalism is not the exclusive (or even the most appropriate) way to interpret the Constitution.

Posted by: bw | Aug 11, 2005 12:08:42 PM

How about this for a new slogan: Our opinions may suck, but at least they are honest.

Posted by: Hillel Levin | Aug 10, 2005 3:32:51 PM

I agree with MJ (who, like the authors of this site, I usually disagree with). This site deserves mad props for intellectual honesty.

Posted by: George of the (Legal) Jungle | Aug 10, 2005 3:12:14 PM

We should consider this for a motto at the top of the page: "Where Intellectual Honesty Has (Almost Always) Trumped Partisanship Since 2005."

Posted by: Paul Horwitz | Aug 10, 2005 2:59:37 PM

Also, bully for calling a spade a spade on the NARAL ad. Though I disagree with many of the positions of the authors of this site, it is nice to see that this is one place where intellectual honesty still )almost always) trumps partisanship.

Posted by: MJ | Aug 10, 2005 2:54:09 PM

More charitable? No. What did Prof. Tribe really mean by "intervening developments"?:

"After we showed the world through the destruction of Bork that we were eager and capable of sacrificing any nominee at the altar of Roe."

Posted by: MJ | Aug 10, 2005 2:46:18 PM

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