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Saturday, February 18, 2006

The Stealth Revolution, Not

Bruce Ackerman has an essay in the London Review of Books this issue called "The Stealth Revolution, Continued."  It purports to be a continuation of his essay "The Art of Stealth," published in the LRB about a year ago today.  The thesis of the earlier essay was that Bush was likely to attempt to nominate for the US Supreme Court candidates about whom the public has very little information.  Souter was the classic example -- a candidate whose stealthiness ended up resulting in a justice substantially less conservative than the President who appointed him.  There was something in the earlier essay that gave liberals hope: GWB might nominate someone  "stealth;" Republicans would confirm her; and then the confirmed justice might turn out to be less conservative than the appointing President.  There was something unlikely about the prediction then, given the Republicans domination of all three branches of government.

The essay of this week claims that Bush, in fact, "took the path descibed in [Ackerman's] previous essay, and tendered stealth nominees whose public records provided few clues as to future performance."  This is not a credible claim, given that Ackerman is analyzing the Roberts and Alito nominations, not the Miers nomination. 

As applied to the Miers nomination, the "art of stealth" theme resonates.  But I don't think Roberts and Alito can plausibly be thought to be anything other than reliable conservative votes -- and almost everyone realized this by the time of their confirmation. 

To be sure, Ackerman is right that we don't know if these guys are going to be "originalists."  Neither Roberts nor Alito gave much reason to believe that they would turn out to be strong originalists.  And if they do turn out to be Thomas-like originalists, I suppose that was a "stealthy" move: Roberts essentially would have lied about it at his hearings (as Thomas did) -- and Alito would have nicely covered up a central tenet of his judicial philosophy for 15 years on the bench.

Ackerman makes another prediction: the next Supreme Court Justice "will surely be a she."  I wonder how he'll massage the facts for his next LRB column if it turns out the prediction is wrong.

Posted by Ethan Leib on February 18, 2006 at 08:27 PM in Article Spotlight | Permalink


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Fair enough about me seeing what I want to see. I'm not sure what other bits of Alito & Roberts's testimony you did focus on, though. It seems pretty clear to me that they want to be textualist originalists of some form or other.

I disagree about whether Thomas's performance contradicts his testimony. The statement isn't meaningless hot air, but neither is it much of a commitment. I don't think there's good reason to think he doesn't take stare decisis seriously now, or think that it's important. He has suggested a number of pretty radical positions in dissent--like overruling Slaughterhouse, something Ackerman also wants to do--but I don't see any suggestion that Thomas wants the Court to do so without carefully considering reliance interests. I don't think he promised to do any more in 1991. I've searched through the 1991 hearings for references to stare decisis, and found only these references, all of which only say that it's "important" or the like: here (the one you quoted), here, here, here, and here. (The assessment I quoted was made after the initial hearing, by the way.)

Posted by: Chris | Feb 20, 2006 7:00:49 PM


Here's what Thomas said at the time:

"I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case indirect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case."

Maybe this is meaningless hot air that all nominees spew to get confirmed -- and we should know better than to try to take the words seriously. Maybe he simply changed his mind. Or maybe there is routinely a good reason to make the "additional step." You can decide for yourself; I'm entitled to my defeasible opinion that this seems deceptive given his current jurisprudence.

Of course people were worried about Thomas's attitude to stare decisis at the time; that only contributes to turning the "assurances" into something noteworthy.

As for your quotes on Alito and Roberts, I remain underwhelmed. I sat through the same confirmation hearings and focused on different de-contextualized quotes. Anyway, time will tell how these guys take to the task of constitutional interpretation. And then you can write an article explaining how you knew all along that the new Bush appointments to the Court would embody your theory of constitutional interpretation. I think part of my commentary on Ackerman's article was about showing how people see what they want to see in current events; you are only confirming the point!

Posted by: Ethan Leib | Feb 20, 2006 6:28:08 PM

I still think that both Roberts and Alito indicated with tolerable precision that they think that the meaning historically expressed by the constitutional text at the time of the framing is the constitutional touchstone.

Alito: "And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution. In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."

Roberts: "Let's take the originalist approach. I do think that the framers' intent is the guiding principle that should apply. However, you do need to be very careful and make sure that you're giving appropriate weight to the words that the framers used to embody their intent.... That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word..."

I think that they both Alito and Roberts are likely textualist semi-originalists: they think the historic, textually-expressed sense/intension/meaning/connotation, rather than the historically-understood reference/extension/application/denotation, is paramount. Alas, they don't use distinctions from the philosophy of language to explain their theory, but few people do.

Ackerman's indictment of Thomas is very thin: "Clarence Thomas had given similar reassurances, and then threw them to the wind as soon as he got his job." We need more detail on what exactly Thomas said about stare decisis to decide if he has even taken an approach inconsistent with his testimony, let alone think that he deliberately lied. Thomas had already published his suggestion that Slaughterhouse should be overruled, so he was pretty clearly not adverse to upsetting some apple carts. One critic of Thomas said at the time: "Judge Thomas has a disturbingly paradigmatic disdain and disregard for legal precedents and stare decisis. In fact, I don't think he knows what 'stare decisis' means."

I don't think we should lightly accuse people of lying (or even of being inconsistent), however fun it might be.

Posted by: Chris | Feb 20, 2006 5:54:15 PM

Steve: The "stealth" thesis was not mine -- nor was I saying anything about whether "stealthiness" is good or bad. Maybe you missed the point of the post.

Will: I've got a lot of evidence; I just can't share it with you. No, I have no idea. But the idea that the guy just came up with his hard-core originalism after theory-shopping on the Court for a few years seems far-fetched. On the other hand, I could be convinced if someone had evidence going the other way. What do you know?

If I were a judge who changed my mind about something as central as the doctrine of stare decisis, I probably would give some explanation of that change of course in my opinions, speeches, somewhere. Do you know of anywhere where Thomas himself suggests that he wasn't lying but rather changed his mind? That would be very interesting. If no such material exists, though, I'm sticking with the lying story. It is much more fun.

Posted by: Ethan Leib | Feb 19, 2006 7:11:26 PM


Is there any evidence that Thomas was lying when he spoke about stare decisis at his hearings rather than simply changing his mind? The modern reluctance to say anything substantive at the confirmation hearings seems to stem in part from a fear that one will be accused of being a liar if one later changes one's mind, so it's odd to reinforce that unless you have evidence. But maybe you do?

Posted by: Will Baude | Feb 19, 2006 2:48:51 PM

Not sure if I understand the motivation, or 'tone' of this post. If it is purely descriptive, then I suppose its ok as far as it goes.

But there is a sense that it is an 'ethical' post. I.e. that 'stealth' is 'not good', 'not justified', somehow 'dirty pool.' In which case, its a lousy post.

Because you seem to be saying 'stealth' candidates are wrong-Bush shouldn't do it. Unless those 'stealth' candidates end up being stealthily liberal (a la Souter). Then 'stealth' is a good thing.

So is that your view? Stealth candidacies are bad for the country, unless liberals are snuck into the court? (then stealth is a good thing!)

And one other thing: "The thesis of the earlier essay was that Bush was likely to attempt to nominate for the US Supreme Court candidates about whom the public has very little information." Of course. The public knows nothing about any US Supreme Court candidate, and knows marginally more once those candidates are pilloried by the Senate. 'Public knowledge of candidates' is not a reliable measure of anything-Stealth, lack of Stealth, popularity, acceptability, suitability, nothing.


Posted by: Steve | Feb 19, 2006 9:48:46 AM

Mostly agreed on all counts.

Posted by: Ethan Leib | Feb 19, 2006 12:45:50 AM

Well, to be sure, Brother Randy's paper criticizes Brother Nino, but to be accurate, it criticizes Scalia, not originalism, saying that Scalia essentially walks away from the theory, not that the theory itself is flawed. I'm not especialy impressed with Randy's complaints about Scalia, but let's be clear as to what it is he's complaining about.

Also, it seems to me that most of what you'd think of as the GOP "base" - in which I include the President - really don't have much of an idea of what Scalia's judicial philosophy is, and they use terms like "strict construction" and "originalism" as buzzwords and ciphers for "conservative judges." Hence, for example, Bush promised to appoint strict constructionists in the mold of Scalia - I envisage Scalia cringing at such statements, having said repeatedly that he isn't a strict constructionist, and moreover, that no-one ought to be. But none-the-less, the mere fact that some folks use the terms mistakenly does not devoid the terms of their actual meaning. I think both Alito and Roberts will turn out to be what the base wants: conservative judges. Whether they turn out to be originalists - of any stripe - is a little harder to determine. For my part, I have greater hopes for Brother Sam than for our Fearless Leader.

Posted by: Simon | Feb 18, 2006 11:45:08 PM

I put "originalist" in quotation marks because it wasn't fully clear what was meant in the essay. More, given Barnett's recent attacks on Scalia's originalism, it obviously is a word that is a stand-in for a set of approaches rather than a fully clear signifier.

The essay makes clear that Thomas talked big about stare decisis at his hearings. And we all know his views of it now...

Posted by: Ethan Leib | Feb 18, 2006 10:44:10 PM

Thomas lied about his philosophies at confirmation? Wasn't really paying attention at that point in my life. What did he say that wasn't true?

Posted by: Curious | Feb 18, 2006 10:37:42 PM

I have a question and a statement. Why is "originalists" enquoted? Would one enquote "strict constructionists" at this point? I would think that everyone who reads prawfsblawg has a fair grasp of what that faily of theories entails, and I'd be willing to bet that most people who read prawfsblawg have a fairly strong opinion about them, for better or worse. ;)

I'd also add that I agree with Ackerman that the political pressure for the next nominee to be anything other than a white male will be unbearable. While the idea of a diversity criterion smacks of affirmative action, in this case it plays into my preferences; unless the next departure is Justice Stevens (in which case my preference for a nominee would be Justice Robert Young), for reasons offered here and here, my preference would be Judge Sykes (CA7). If the pressure is on for the nominee to be "diverse," I think they could do a lot worse than Judge Sykes, who I think would be a good candidate even absent the politics of the choice.

Of course, I would also suggest that Prof. Calabresi might make a nice replacement for her on the Seventh Circuit...

Posted by: Simon | Feb 18, 2006 10:13:54 PM

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