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Thursday, May 13, 2010

A Response to Robert George

In a recent post on Mirror of Justice, Robert George graciously responds to an earlier post of mine regarding the views of senators on questioning judicial nominees.  He writes that given my description, "I'm glad to know that Senator Charles Schumer agrees with me that questions about issues such as abortion, marriage, and the role of religion in American public life are appropriate; I'm disappointed to learn that Senator John Cornyn believes that they are not."  

Normally, I'd rest on my laurels right there.  

More than that: having gotten Robert George to agree with Charles Schumer and disagree with John Cornyn, I'd be battening down the hatches and saying my prayers; surely this is a sign that the Last Days are approaching.  But George goes on, quite reasonably, to say:

I do have one question, however, about Professor Horwitz's account of Senator Cornyn's view.  He reports that "Cornyn has made quite clear that he believes that a nominee's personal views about abortion and other issues are irrelevant to her fitness for the bench" (emphasis added).  Stated just that way, I would not necessarily disagree with Cornyn.  It depends on what one means by "personal" views.  I don't think the American public necessarily needs to know whether Elena Kagan or any other nominee believes that abortion is right or wrong, just or unjust; nor do we need to know whether she believes that this or that sexual practice or form of sexual partnership is morally good or bad; nor do we need to know what her religious convictions are.  In that sense, her personal views may indeed by irrelevant.  What we need to know in order properly to evaluate a nominee's suitability is whether he or she believes that some provision of the Constitution, or the Constitution somehow taken as a whole, may legitimately be interpreted as settling the question of abortion and removing it from the domain of democratic deliberation.  Ditto for marriage; ditto for, e.g., including "under God" in the Pledge of Allegiance.  (For that matter, ditto for the private possession of handguns, burning the American flag, and issues such as those at stake in theCitizens United decision.)  By answering questions about these issues---candidly and fully---a nominee will let us know where he or she stands on the central matters at stake:  namely the sources of constitutional meaning and the role of the courts in our system of constitutional government.  It is on the basis of the nominee's stands on these matters, considered together with intellectual attainment, integrity, and temperament, that Senators should, in my opinion, cast there votes for or against confirmation.

That's a fair question and deserves a fair response.  On my reading of Cornyn's writing on the subject, the answer is somewhat unclear.  Cornyn does say that a nominee's personal views on abortion (and other subjects) are irrelevant, and George doesn't disagree with that, as I understand him.  Cornyn goes on to complain, however, that Democrats have insisted that nominees "swear allegiance to certain views with regard to abortion."  In context, this seems to mean not just personal views, but legal views.  He adds that "Senators should consider judicial nominees on the basis of their qualifications and commitment to applying the law as it is written -- regardless of their personal views on abortion or Roe."  

The fact that Cornyn brings in both Roe v. Wade and "the law as it is written" complicates matters in both directions.  On the one hand, a personal view on Roe is distinct from a personal view on abortion; it's arguably more a jurisprudential view than a purely moral and personal one.  Cornyn seems to suggest that questions or votes along these lines are off the table -- that whether one thinks Roe was wrongly decided (at the time, he was thinking about Republican nominees) or rightly decided is not a proper basis for a yes or no vote.  On the other hand, what are we to make of the phrase "the law as it is written?"  If Kagan says she is committed to upholding the precedents of the Court, does that make her a sound nominee under Cornyn's criteria because she is committed to applying the law as it is written?  Or is the question whether she is willing to strike down precedents that don't accord with the law as it is written in the Constitution itself -- which, on Cornyn's view, presumably doesn't include a right to abortion?  (Steve Shiffrin raises similar questions at MoJ.)  

George might conclude that the phrase is absolutely clear and favors the latter interpretation.  My own view is not that it favors the former reading, but rather that the final meaning of Cornyn's phrase is just not clear, and suggests the problem with imprecise phrases like "the law as it is written."  My best and most charitable interpretation of Cornyn's remarks is that it may leave him room to ask some of the questions that George thinks ought to be asked, but that if he applies his principles in a way that is consistent with his earlier discussion and with his treatment of some other nominees, he may be more constrained in what he can ask than George would wish.  Certainly Kagan can, under Cornyn's approach, be asked general questions about "the sources of constitutional meaning."  She ought to be able to satisfy him at a prima facie level (although he is free to believe she is being dishonest) that she shares his commitment to applying the law as it is written.  But as I understand Cornyn's views, more probing questions that go directly to how she would rule on issues involving abortion, gun laws, and campaign finance would be prohibited.  I don't know whether this will satisfy George or not. 

Posted by Paul Horwitz on May 13, 2010 at 11:07 AM in Paul Horwitz | Permalink


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MIcah, it's an inference, but I think a fair one given the overall sweep of his writings on the subject. As one of the titles of his articles suggests, he is specifically drawing on originalism in describing what he thinks the constitutional limits on asking and answering questions are. And his view about what nominees can't answer is drawn from judicial ethics. Of course it's possible to be only a strategic originalist, or to believe in faint-hearted originalism or that other methods of interpretation are available when originalism runs out, but nothing I saw in those writings suggested that this is his view.

Posted by: Paul Horwitz | May 14, 2010 10:22:15 AM

I've only read the statements you've posted here, but has Senator Cornyn actually said that the obligation isn't defeasible or subject to how others behave? Or is that an inference you're drawing from his claim that it's a constitutional obligation to maintain judicial independence from the inquiring minds who want to know?

Posted by: Micah Schwartzman | May 13, 2010 6:02:02 PM

Micah, I suppose my view is that it's not a straightforward prisoner's dilemma because the person in question has committed to a position in advance. More importantly, he (it could be Cornyn but doesn't have to be) has said the position is not a matter of strategy but of constitutional obligation, and that it is not defeasible or subject to change based on other people's positions. He cannot, consistent with his own position and as a matter of political morality or integrity, say, "The Constitution absolutely requires me to do X or forbids me to do X, but because other people won't follow that instruction, I will ignore the Constitution and do Y." I agree that the kinds of strategic moves you suggest are available to some individuals, but not to individuals who take these prior views.

Posted by: Paul Horwitz | May 13, 2010 3:13:52 PM

I wonder how much an individual senator's remarks about how the confirmation hearings ought to be conducted might constrain, at least as a matter of political morality (or integrity), that senator's actions during a particular confirmation hearing. Could someone like Senator Cornyn say, "Under ideal circumstances, senators shouldn't ask questions about how nominees will vote. But circumstances aren't ideal, and others senators (e.g., Schumer) are going to ask such questions. I can't stop that from happening, and so I have no choice but to ask similar sorts of questions and take reciprocal sorts of ideological positions." Would we think a senator who says something along those lines has been inconsistent or lacks integrity? On this senator's view, the confirmation process is worse than it should have been, but better than it would be if only one side engaged in ideological decision-making. Seems like a fairly straight-forward prisoner's dilemma.

Posted by: Micah Schwartzman | May 13, 2010 12:51:49 PM

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