« TSA for Tots and Scaling Back Secure Flight | Main | Gelernter's Amendment »
Friday, September 23, 2005
And so what if she did?
Some folks (including here at prawfs) seem awfully concerned with whether Justice Ginsburg ever favored lowering the age of consent to 12.
My response: So what if she did (or does)?
Don't get me wrong. I'm as horrified as anyone else at the idea of legalizing sex with a 12 year old.
But why should anyone care about Justice Ginsburg's policy preferences on this question? After all, there's been no hint that she would (never mind whether she possibly could) impose such a preference from the bench. Indeed, the only evidence that she ever espoused such a view emerges from a piece of legislation she may once have supported--and is not, to my knowledge, reflected in any argument she ever made as an attorney arguing a case to judge, let alone as a judge herself.
Conservatives especially should applaud her restraint, for she evidently has no intent to legislate this from the bench. Isn't that what conservatives always demand, judges who check their policy preferences when they put on the robes? Recall that were Justice Thomas a legislator, he would vote against bans on homosexual sodomy; and yet the very same religious right that demands such bans just can't get enough of Thomas, because he understands the difference between a judge and a legislator. These same people should give Ginsburg a medal for recognizing that it isn't her job to decide the age of consent, whatever her policy preferences are. Instead, they just give her grief.
If you don't like her policy views on this question, don't vote for her for senator. Luckily, she's not running.
Posted by Hillel Levin on September 23, 2005 at 10:54 AM in Hillel Levin | Permalink
TrackBack
TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d8346de75853ef
Listed below are links to weblogs that reference And so what if she did?:
Comments
Four responses:
1. For the most part, I think that it is all politics as usual. In other words, the position taken by dems on Pickering (and I too have no real opinion on this) was the product of politics: what the senators thought their votes would get them. That was my real point about Graham as well. All of this "deference" stuff is a canard. And to the extent this smear (true or not) existed before the confirmation fight, it is far worse.
2. Racism in general, given our country's history and the nature of the disputes that wind up in court, are different in kind from positions on flat taxes and age of consent. It isn't hard to imagine that a person's animus towards a certain group will, in fact, translate to the bench. I'm NOT accusing Pickering because I don't claim to know what is going on in his mind. But in a hypothetical case, I think that the charge of general racism is far more relevant to judging than the charges leveled at Ginsburg.
3. If conservatives are going to take the position that politics should be kept out of judging, then they ought to hold themselves to the same standards. I don't let liberals off the hook for NOT embracing that position (because they should), but to the extent it has been the conservatives' rallying cry, it smacks of hypocrisy--and not just plain only wrongheadedness--to smear Ginsburg with this one.
4. As for Snow, I think it obvious that a plainly political position is completely different than a nomination to the third branch, for a host of reasons. The rules are just different, and it cuts both ways.
I too have enjoyed this tit-for-tat. You've made a number of good points; and certainly gave me food for thought. I do agree that we will have to agree to disagree.
Any snide one-liners on my part were certainly not intended personally, but rather in the spirit of the debate. I think it comes from my debating days when one could score cheap points for cheap shots. It isn't a good habit, I grant you. But it livens things up a bit, no? (I thought "reductio at Namblum" was kind of smart at the time, to be honest, but perhaps a bit too smartass in hindsight.) I'm satisfied that nothing I said qualifies as a meaningless personal attack (i.e. nothing like Galloway calling Hitchens a butterfly who metamorphized back into a slug), and I hope you are also so satisfied. Thanks for the debate! Cheers.
Posted by: Hillel Levin | Sep 26, 2005 9:06:32 AM
Is such a nominee so hard to imagine? We have a sitting Democratic senator (Byrd) who was a member of the KKK and used the "n" word on national (cable) TV in the last couple of years. We have a sitting Republican senator (Lott) who openly expressed nostalgia for the Thurmond campaign, which was explicitly racist. If either of those men were nominated for judgeships, wouldn't it be fair for a senator to vote against them on that basis? Wasn't that at least one of the bases that many Democrats expressed opposition to the 11th circuit nomination of Charles Pickering (that, in his younger days, he may have had ties to racist organizations)? (I don't want to get into a fight about the Pickering nomination, which is one of many subjects about which I am not an expert; I'm just trying to show that all kinds of people make it through the political system. I don't know enough about the Pickering nomination to have a strong opinion on whether he should have been voted on or confirmed.)
The "principle" that I am arguing for is that there are some circumstances where prior political stances could form a legitimate basis for a "no" vote. You were (I believe) arguing that the use of prior political stances for a "no" vote would be "normatively" wrong. I am just trying to figure out how that plays out in practice.
How about a more likely example, if you think my previous attempts are too far fetched? A nominee belongs (or belonged) to a club that excludes certain people, whether on religious, racial or gender grounds. There is no reason to believe that they personally hold any racist views, or that this membership would affect the way they resolve any cases. I would argue that this would be a valid reason to vote against someone, just as some people argued that John Snow's prior membership (he resigned when he was nominated) in Augusta National, which excluded non-whites until recently and still excludes women, made him an inappropriate candidate for Secretary of the Treasury even though I don't think anyone thought that his membership said anything about what kind of a Secretary of the Treasury he would be.
Anyway, my guess is that we will have to agree to disagree, and cast our votes for president and senator accordingly (I don't think we live in the same states). I have enjoyed this dialogue and I appreciate your e-publication. The snideness of some of your responses ("Ah, so here it is finally: reductio ad hitlerum, or perhaps reductio ad pro-NAMBLum") seems unnecessary to me, but if I have put forth my arguments in a way that seemed to call for that kind of tone, well, it wasn't intended.
Posted by: SG | Sep 25, 2005 9:57:16 PM
Ah, so here it is finally: reductio ad hitlerum, or perhaps reductio ad pro-NAMBLum. The reason no one would ever have to deal with the question you raise is that the political system would never produce such a nominee. Because, of course, the president answers to the people. And while the people are fine with a candidate who might favor the flat tax; or with one who in a very obscure reference from years ago MAY have supported lowering the age of consent. So thankfully, I don't have to deal with your hypothetical. But since you go down the slippery road, let me take us back up. Suppose the nominee supports privatizing social security as a policy matter. Can a liberal legitimately (i.e. beyond just descriptively) vote against a nominee on that basis? I'd argue no; and I'd argue that conservatives, who generally claim that judges should keep politics out of judging, should be particularly attuned to this.
As for Feinstein, I don't have to answer for her; she can answer for herself. I am hardly naive enough to think that she--no differently from Graham--was interested in anything other than politics. The trouble is that you keep arguing that there is some principle involved.
(For the record, I prefer a nominee with a brain over a heart.)
Posted by: Hillel Levin | Sep 25, 2005 12:01:38 PM
So, you argue that no Democrats voted against Roberts because of "his preferences on the tax structure or the age of consent," but at least one did obviously vote against him because of his views on things unrelated to judging. While we seem to agree that Feinstein was wrong in her stance, are there no circumstances where a nominee's views on something unrelated to judging would present a valid basis for voting against them? How about a judge who is a member of NAMBLA but says that he will uphold all child exploitation laws? What if one had been David Duke's campaign manager? Or denied the Holocaust? All of those things would make me question whether that person should be a judge, though I don't see them as all that related to judging.
On the other issues, no question that the Repubilcans should have given more of Clinton's nominees an up/down vote (in my opinion) if only so that they would have a better argument for the nuclear option if/when the Dems again refuse to give one of Bush's nominees a vote. My guess is that the parties do think about the precedent that is set when they take these actions; the GOP has certainly used the Ginsburg precedent often enough, and Andy McCarthy over at the National Review certainly argued that Roberts should answer more questions so that a Democratic nominee could be (more) legitimately held to the same standard. Personally, if I were betting, I would bet that the Democrats will win the White House in 2008 but that the GOP will retain the Senate. And during that term, it seems likely to me that Stevens, Ginsburg and possibly Breyer will retire. Souter could too, for that matter. The Republicans would be smart to set themselves up as well as possible for that eventuality, in my opinion. But, again, it's just my opinion. I don't think that precedents are lost on the folks in the Senate; even when (on both sides) they ignore them, it's always helpful -- as a political matter -- to have them on your side. Roberts' refusal to answer questions is more palatable as a political matter to the GOP and to the public (those that know about it) because of Ginsburg's actions. And if there's a Democratic president in 2008, her/his nominee's refusal to answer questions will be stronger -- politically --because of Roberts' actions.
Posted by: SG | Sep 23, 2005 5:52:34 PM
You may be trying to explain why some people care, and my point remains that they shouldn't care.
I don't have any beef with Graham's point about abortion. None at all. In fact, that point stands on its own. Republicans would have been within reason to vote against Ginsburg for her likely JUDICIAL stances. (This is the point I've made from the start, of course.) Therefore, the fact that he threw in the lines about her stances on irrelevant issues just suggests to me that there's something else going on; otherwise, it would be gratuitous.
I don't think the republicans voted for Ginsburg in order to win any points due to their deference. Perhaps they figured that they were seats that didn't matter, much as democrats feel about Rehnquist's seat (but not O'Connor's). Further, if republicans were so concerned about "principle" in those days, they might have considered bringing the many clinton nominees out of committee for up/down votes. But even if they did vote out of the principle of "deference," why would they think this would win them any points down the road? Since when has this been the game in politics?
As for Feinstein's concern for the contours of the nominee's "heart," I think that's a completely bogus issue. (Indeed, I'm working on a post responding to Lithwick's slate article about this. Don't call me unfair, please.)
Finally, you say that senators COULD vote against a nominee for her political stances. This is correct as a descriptive matter. The whole point of my post is that it is wrong normatively. And it is even MORE wrong for conservatives who claim to want nothing other than a candidate who separates her politics from her jurisprudence. That's why no one should care about Ginsburg's thoughts on age of consent.
Posted by: Hillel Levin | Sep 23, 2005 5:15:49 PM
Oh c'mon with the "though you've ignored it" comments. That's the kind of talk that makes people think that the blogosphere is uncivil and, to be honest, is beneath the generally high standards of this e-publication. I'm just trying to explain why some people might care about that issue in this context.
It's worth noting that Graham mentioned all of those policy preferences in passing. He spent much more time discussing the abortion issue (which surely does implicate constitutional views), in terms of the fact that 90% of the GOP caucus is opposed, but they voted for Ginsburg, a firm proponent of abortion rights anyway. That was really what he was getting at, I think: trying to convince the Democratic members of the judiciary committee (and by extension, the other Democratic Senators) that the better way to play this game is to approve highly qualified nominees even when you don't necessarily agree with them. I don't think that Graham thought the age of consent (or any of the other policy issues he mentioned) were at the heart of his argument, and they weren't a big deal until (as far as I can tell from a limited viewing of the media-sphere) Timothy Noah made them one by claiming, apparently wrongly, that Ginsburg didn't support a lower age of consent.
Of course Senators can vote against any nominee for any reason. They could vote against nominees because they hold policy views unrelated to their judging. For example, if Roberts had said that he thought that spouses should be able to beat each other for disobedience, that might not implicate federal law (because domestic/ family law is almost wholly a state law field) but could certainly provide a senator with reason to vote against him. And Feinstein's comments about wanting more of Roberts' own views as a "father" or as a "husband" certainly seem to imply that she found his personal views relevant beyond his judicial positions.
But I certainly don't disagree that it's a political calculation at the end of the day. The Republicans may have misjudged what kind of credit they would get for giving Breyer and Ginsburg a pass, and if so, that's their own fault for making bad strategy. Similarly, the Democrats might want to think about what kind of precedent they are setting given that it is far more likely that they will re-claim the White House in 2008 than it is that they will reclaim the Senate, but, again, that's their own calculation to make, not mine.
Posted by: SG | Sep 23, 2005 4:58:32 PM
I'm not letting Graham off the hook. He has no reason to care about Ginsburg's policy preferences; and he (and democrats) have no reason to care about Roberts'. Like I said (though you've ignored it), no democrat is voting against Roberts because of his preferences on the tax structure or the age of consent. Those things have nothing to do with the job; and it would therefore be unreasonable to discuss them at judicial confirmation hearings.
By contrast, it was reasonable to vote against Ginsburg because she wouldn't answer questions or because one disagreed with her perceived JUDICIAL preferences; and it would be reasonable to vote against Roberts for the same reasons. As for why republicans chose to vote for Ginsburg, I doubt seriously it had much to do with principles of deference to the president's choice; just as democrats will not vote for Roberts simply out of deference. They will do so for political reasons, as is their right.
But whether Ginsburg wanted to lower the age of consent has nothing to do with her job qualifications; and it has nothing to do with whether one should or should not vote for Roberts.
Posted by: Hillel Levin | Sep 23, 2005 4:20:08 PM
Well, I guess your original question was "Why should anyone care?" And the answer is that I care because of this deference issue. And it appears that Lindsey Graham cares because of this deference issue too (as you seem to concede by letting him off the hook). These arguments may have been around for years; to be honest, I didn't know that, but I'm not sure whether that makes much difference. In the context of the Roberts hearings (which is the context where Graham raised it, and where Dahlia Lithwick and Timothy Noah criticized him for raising it), I think that's why people brought it up, for the deference issue. In other contexts, people may be interested in it for other reasons, including, no doubt, some of the more nefarious possibilities you suggest. But to the extent that you wonder why anyone would care, well, this is why Lindsey G and I care (and, I think, the reason my many other people who have heard these facts in the context of the Roberts nomination care too).
Posted by: SG | Sep 23, 2005 4:10:35 PM
SG:
Yes, I read it the first time around. As I said, none of those things (age of consent, prostitution, mother's day, etc) has anything to do with her work on the bench; and therefore no one should or did vote against her based on policy disagreement.
Similarly, no one will, or did, vote against Roberts for disagreement on the age of consent or flat taxes.
It would have been fair game to vote against Ginsburg for her refusal to answer questions; and it would be fair game to vote against Roberts for the same reason. It would be fair game to vote against Ginsburg because you THINK that her jurisprudence is vastly different from yours; and the same is true for Roberts. And it would be fair to vote against either one of them for purely political reasons.
But the conservatives who just love it when judges separate their politics from their judicial opinions should not then attack Ginsburg for her politics.
And, of course, Graham didn't come up with this irrelevant attack on his own. This attack on Ginsburg has been floating around for quite some time (check the links), and so it is impossible to connect the general attack with this nomination specifically. At best, you get Graham off the hook; what about everyone else who has been yelling about this for years?
The fact is that people don't agree with Ginsburg's work as a judge. But rather than stick to that, they attack her for something completely irrelevant.
Posted by: Hillel Levin | Sep 23, 2005 2:17:51 PM
SG:
First, I neither defend nor attack Ginsburg's or Roberts' refusal to answer question, since that's the way this toxic game is played. They aren't to blame.
Onto the debate.
Since much of the attack on Ginsburg started well before Roberts was ever nominated (i.e. not in the context of the hearings), I find your explanation impossible.
Further, since Ginsburg's opinion on age of consent could not remotely have anything to do with her work on the bench, there's no reason anyone should even ask her about it, let alone whether she should answer or not. This was the point of my post. It just doesn't matter what she thinks on the subject.
There are a lot of subjets for which I would say the same for Roberts as well. For instance, I don't care whether he supports a flat tax. That's not fair game for a judicial nomination anymore than Ginsburg's pure policy preferences are.
What IS fair game--at least to ask, though they may well choose not to answer--relates to those things they would actually DO on the bench. Roe, Lopez, the 11th amendment, Lawrence, whatever.
No Senator is voting against Roberts because of his positions on the flat tax or the age of consent, or his refusal to answer questions on that score; and I've heard no attacks on those positions either. Everyone recognizes that it has nothing to do with his nomination.
By contrast, Ginsburg is being attacked for a PURELY personal policy preference that she has/had/never had (depending on who you believe).
THAT'S the difference.
Posted by: Hillel Levin | Sep 23, 2005 2:10:17 PM
Here is the original Graham statment (http://lgraham.senate.gov/index.cfm?mode=presspage&id=245706). My computer skills aren't good enough to get it set aside as text, but it seems like a deference argument to me...
GRAHAM: If you came to the Reagan administration and the top thing on their resume was the general counsel for the ACLU, do you think they would hire you?
ROBERTS: Might make it a little harder.
(LAUGHTER)
GRAHAM: Yes.
(LAUGHTER)
I think that's a good observation. Well, we have, on the sitting Supreme Court now, the former general counsel for the American Civil Liberties Union, who is a very nice lady, extremely qualified -- I don't agree with her hardly at all -- but a great lawyer.
She has written that the age of consent for women should be 12, that all prisons to have gender equality, men and women should be in the same prison because, when you separate them, women prisoners somehow are discriminated against.
She wanted to do away or argued the idea that Mother's and Father's Day should be done away with because it stereotypes men and women -- that there's a constitutional right to prostitution.
I can give you -- and I'll introduce into the record -- writings from her point of view that most conservatives would find totally unacceptable. But this person, this lady, the former ACLU executive counsel, is sitting on the Supreme Court, and she got 96 votes.
She said that there should be federal funding for abortion. 90 percent of our caucus is pro-life -- is that about right? Pretty close? I could assure you that, if a Republican was going to make their vote based on abortion thinking, she would have gotten no votes. Most Americans don't want federal funding of abortion, even though they're divided on the issue of a woman's right to choose.
GRAHAM: She has argued that the equal protection clause guarantees a right to abortion.
Now, I completely differ with that, and I'm sure the conservatives in the Senate at the time of her confirmation completely differed with that: the idea the age of consent should be 12, that bigamy statutes are discriminatory to women.
I can go on and on and on.
And the point I'm trying to make is that all of that was put aside, who she represented and what she believed and the position she took, and somehow back then they're able to see in Justice Ginsburg a well-qualified, brilliant legal mind and they deferred to President Clinton because he won the election.
Whether that happens to you, I don't know.
But for the sake of the country and the rule of law, I hope you can be in the ballpark of where she wound up.
Posted by: SG | Sep 23, 2005 2:04:44 PM
I wish I could find the original Lindsey Graham colloquy with Roberts on the subject, where he ends the discussion with some comment about how much personal feelings on this subject should play into a senator's vote. If I do find it, I'll post the link.
But yes, I think the whole issue is about deference. The Republicans basically gave Ginsburg (and to a lesser extent Breyer) a free pass and voted for her even though she refused to answer a lot of questions and even though they knew that she disagreed with them on a lot of issues. That may have been the wrong approach (and a number of conservative commentators that I respect a great deal, like Andy McCarthy, have said that Roberts should answer far more questions than he did, just so that the Republicans can hold future dem nominees to a higher standard than was applied to Ginsburg), but that's what happened. Now, Democrats are refusing to vote for Roberts. The Republicans are trying to show that they applied a different level of deference was in '93. To the extent that it makes a liberal justice look bad, that's a side benefit. The point is that Clinton nominated a highly ideological and also highly qualified person to the court and she was overwhelmingly confirmed. Now Bush has nominated a possibly (but not definitely) highly ideological person to the court and he will be confirmed with far fewer votes than Clinton's nominee. That's what they're trying to show.
The non-partisan cynical response (which I also share) is that all process arguments (e.g. how much deference should the opposition party in the Senate give to the President's nominees) are insincere, and to be abandoned whenever they don't fit the proponent's goals. Nowhere is that more true than in the judicial nomination worldm, where Republicans made the pro-deference argument in GHWB's term, then the Dems made them in Clinton's terms, and now the Repubs make them again in GWB's terms.
Posted by: SG | Sep 23, 2005 1:53:07 PM
SG:
Do you honestly believe that the many conservatives who have latched onto this idea--many of them before Roberts was even nominated--have done so out of concern for levels of deference, of all things?
If I was charitable, I would say that they are concerned about the character of a person who would support such an abhorrent idea. (Though like I said, given that she has shown zero interest in making this an issue on the bench, that's completely irrelevant.)
If I was cynical, I would say that they are using this irrelevant fact to tar and feather a person with whom they disagree on a broad range of issues.
I'm happy to let you take your pick.
Posted by: Hillel Levin | Sep 23, 2005 12:34:05 PM
It's relevant because to the issue of how much deference the President's nominations get. Some people (i.e. Dem Senators) are apparently quite concerned with "what is in John Roberts' heart" and what it is that "John Roberts actually believes." Because they claim to have been unable to discern exactly what is in Roberts' heart, and what he actually believes, those people say they cannot vote for him. Some cynics might say that it's not that those folks don't know what Roberts thinks, it's that he hasn't come out publicly in support of their particular position that bothers them so much.
Therefore, if Justice Ginsburg, at the time of her confirmation, had a record of advocating something that almost everyone thinks is an abhorrent idea (lowering the age of consent to 12), but she still received all but 3 votes, it shows that there was some significant deference to the President's choice for Supreme Court Justice, even though that person was, apparently, in favor of a policy that is almost universally condemned. If, on the other hand, an overwhelming majority of Democrats vote against Roberts based on their being unsure of his position on issues over which many Americans have strong good-faith disagreements, then that shows that the Democrats are showing very little deference to the President's choice.
As a result, it matters whether Ginsburg was in fact in fabor of his horrible idea (in which case she got quite a bit of deference) or not (in which case she might not have gotten quite as much).
Posted by: SG | Sep 23, 2005 12:27:31 PM
The comments to this entry are closed.