Dispatches from the Creation Wars

Just noticed this very odd response by Mark Olson to my post about Robert Bork’s mythical martyrdom. Much of the rhetoric in Olson’s response would serve as a perfect example of how to execute the strategy known as poisoning the well, as he puts his own unique characterizations on events and pretends that I have said them or would agree with them. It begins with the very first sentence:

Ed Brayton, writing at Dispatches from the Culture Wars, is of the decided opinion that it was a good thing that Mr Bork’s reputation was besmirched by the Judicial Committee.

Uh, no. I am, however, of the decided opinion that this characterization of my decided opinion is shamefully disingenuous. I didn’t say anything about Bork’s “reputation being besmirched”, I said that Bork’s views really were and are dangerous to liberty and that he was rightfully voted down in his attempt to get on the Supreme Court. If his reputation was besmirched by the fact that he had regularly written opinions on con law that can only be described as loony and dangerous, I don’t much care about that. It is the fact that those opinions are loony and dangerous that I addressed and that is all. Olson continues:

So, in this case, Mr Brayton argues first that the ends do indeed justify the means, that using extra-Constitutional means to destroy the reputation of man is worthwhile if he might be put in a position of power, while not holding “mainstream” views.

Same disingenuous rhetoric, take two. I know of no “extra-constitutional means” that were used to “destroy the reputation” of Bork. I know that he was voted down and I believe he was voted down for good reason, not merely because his views were “out of the mainstream” but that they were dangerous to the cause of liberty and wholly unsupportable. I went into great detail in my post as to why I believed that, quoting several of Bork’s own writings to support my conclusion. Mr. Olson apparently believes that it is fair or reasonable comment to ignore all of the substance and instead pretend that I have agreed that it’s okay to destroy someone’s reputation by extra-constitutional means…whatever the hell that means. Do I sound irritated? Good, because I am. Nonetheless, I will answer the questions that Olson posed for me:

It has been pointed out that public writings by jurists do not always track with their court rulings, as in courts they are constrained by law and stare decis but in public opinion pieces there is no such constraint. Is there any actual proof that Mr Bork would ignore such matters if he was approved. Perhaps he could point out why he feels that way based on Mr Bork’s prior opinions in the court on record?

I would say this objection is relevant when discussing a lower court judge, who are bound to apply Supreme Court precedent. For a Supreme Court justice, where there are no such boundaries, I think it is perfectly reasonable to believe that when they say “This is the only reasonable interpretation of this constitutional provision”, they will then follow that interpretation when sitting on the court should a case arise that deals with the subject. Certainly for Bork, who is incredibly outspoken in maintaining that one must follow his version of originalism or they are betraying the founders and the Constitution they wrote, regardless of the mistakes made by past courts, what possible other basis could one have? When he argues that there is no constitutional basis for protecting any speech other than explicitly political speech, what possible reason could we have to think that this is not how he would vote on the court? There are situations where one can surmise that what a judge has written does not necessarily reflect their actual views. An opinion on a lower court might only reflect his duty to apply precedent regardless of whether he agrees with it; briefs written for a client may only reflect the best argument that could be made for his client’s position and not his real opinion. But when he writes that his own view is X and that this is the only rational way a judge could interpret the constitution, it would be irrational not to take him at his word.

He thinks we dodged a bullet by not nominating Mr Bork. However, Justice Thomas was nominated in Mr Bork’s place. On how many decisions does he truly think that Thomas and Bork would have greatly differed? Of course if the number is not substational then we have not indeed doged any bullets and those who “Borked” Mr Bork wrought great havoc on the process for no gain.

This is wrong on the face of it. Thomas was not nominated in Bork’s place, Anthony Kennedy was nominated in Bork’s place. Clarence Thomas was nominated to replace Thurgood Marshall. Bork and Kennedy are about as different as night and day. Certainly there would have been no Lawrence decision with Bork on the court instead of Kennedy. As far as Thomas and Bork are concerned, there are significant differences between the two of them as well. Thomas believes, correctly in my view, that the Declaration of Independence is a key document for determing constitutional interpretation because it so eloquently defines the limits of legitimate government that the Constitution attempted to implement; Bork, on the other hand, not only rejects the Declaration of Independence not only for purposes of Constitutional interpretation but rejects the principles found in it as well. As Walter Olson points out, he uses “liberty” and “pursuit of happiness” as pejoratives in his books and generally deplores the influence of that document. So there are significant differences between the two of them as well.

Was the usurpation of the nomination process by the Senate either effective or worth the damage it has subsequently caused to the nomination and approval process?

I have no idea what “usurpation of the nomination process” means in this context. What exactly was done differently in this nomination than in any other? The nominees views were discussed, he was asked about them, and his views were accepted by some and rejected by others. In this case, more than 50 Senators concluded that his views were sufficently wrong and/or dangerous that they didn’t want to put him on the court. How exactly is any of that a “usurpation”, particularly an “extra-constitutional” one? You’ve thrown around this rhetoric, and pretended that I have agreed with it but think it’s a good thing, but you haven’t bothered to define it.

Mr Hamilton warned in Federalist #76 that exactly what is happening would occur if the nomination process was done by select committee. He wrote (prophetically) that:

Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.

That is a fair description of the mounting conflict.

But an absolutely bizarre interpretation of Hamilton’s words. Read the context of Federalist 76 and it is clear that this is not a warning but a statement of how things ought to be. In the paragraph that this passage appears in, Hamilton is arguing against the notion that the President should have the sole power of appointment without the consent of the Senate. The passage Olson quotes is not a warning at all. He is saying that if you are going to have a President who nominates and the Senate who approves, you can expect that during the Senate deliberations you would have a full airing of the views on both sides, with arguments for and against the nominee, and it would all be aired in public and then voted upon. Is this a bad thing? I submit that it is a very good thing. Hamilton then goes on to point out that the Senate would only rarely reject a nominee except with very good reason:

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, were there were not special and strong reasons for the refusal.

And he was right. Supreme Court nominees are very rarely rejected. Bork has been the only one in decades to be voted down in confirmation, and the Senate was absolutely right to do so.

It is our inheritance from our treatment of Mr Bork. For when the committee takes upon itself to examine more than whether the nomination itself was motivated by improper connections between the Executive and the nominee, i.e., his politics, ideology, or stance on given issues, then that committe is repeating what really is part of the nomination process. Does he truly think this change was worth it?

I don’t think it was a change at all, and I find it absolutely ridiculous that one could believe that the Senate should decide whether someone should be on the Supreme Court or not without giving any consideration at all to how they would do the very job they are nominated for. I would say that the single most important consideration is how the nominee would interpret and apply the Constitution. Why? Because that’s their job as a justice and it’s insane to think that how one would do a job is irrelevant to whether one should give them the job. And I dare say that Mr. Olson doesn’t really believe that either. If a potential nominee were to say, “I don’t think the original meaning of the Constitution matters at all. I don’t think the actual text matters at all. I think judges should just do whatever they think is right in the case before them and shouldn’t worry about what a bunch of rich dead white men believed 200 years ago”, I would be willing to bet that Mr. Olson would change his mind quickly and decide that the Senate certainly should consider a nominee’s views on constitutional interpretation when deciding whether to put them on the court and should keep that person off the court. And in that case, I’d be right with him in urging the Senate to reject that nominee, by the way. Anyone who would take such a position should be rejected for the court.

Not only do I think examining the judicial philosophy of a nominee is good, I want more of it and I want Senators who are educated enough to question them skillfully. I want to see them defend their views. I don’t want to just hear about undefined vagueries like “judicial temperament”, I want to know how a nominee interprets key provisions of the constitution. I want to know if they think the interstate commerce clause should cover actions that are neither interstate nor commerce. I want to know if they believe that the phrase “public use” in the 5th amendment can be legitimately abstracted to mean “private use with a claimed public benefit.” I want to know if they think that unenumerated rights are judicially enforcable, and if so, by what criteria would they determine whether an assertion of such a right is legitimate or not? And if they don’t believe that unenumerated rights are judicially enforcable, I want them to explain why the 9th amendment exists at all if unenumerated rights are simply left to the whim of a majority at any given time. I want to know whether they think the Declaration of Independence is an important text for understanding the legitimate aims of government as defined by the founders. And I could go on with a few dozen more questions as well.

Not only do I want to know the answers to those questions, I think nominees have an obligation to answer them in front of the entire nation. They are asking to be given a lifetime appointment to the nation’s highest court where their decisions will have more of an impact on our lives and our liberty than virtually any other body in the world. Our liberty is in their hands and they have an obligation to tell us what they intend to do with it before we give that power to them. I don’t want to hear that the nominee is kind, decent, trustworthy, thrifty and brave. I want to hear what they would do with their almost unbridled power to interpret the Constitution because that document is the backbone of American liberty. And any Senator who does not ask such questions shouldn’t be in office. The problem is not that the Senate explores a nominee’s ideology, it’s that they generally do so dishonestly and badly and only in the service of their own political interests.

Comments

#1 Dixie Myers
July 20, 2005

Ed, My goodness! That was wonderful. So angry and so to the point. Wish I could do that. But as I can’t, live forever! I’m adding you at the top of my daily list.
#2 Mark Olson
July 20, 2005

Ed,

I’m sorry if you found my comments offensive. I did not intend a personal attack. My comment about extra-Constitutionality of your claims was not meant personally. I happen to think that by grilling the candidate the Senate is stealing a process meant for the Executive. Hence your support of such ideas is IMHO as I described it.

Your previous post referred mainly to Bork’s “slouching” book, which was an opinion piece (I believe) written after his experiences in the confirmation process.

You not I have misread #76. The paragraph quoted is directly speaking to why a individual should do the nomination process and not a group. You might re-read it for to support your (incorrect) assertion this acrimony is how things ought to be. Hamilton has just started off by considering all the methods which we might nominate. A person, a group, or by all. He dismisses “pure democracy” as impractical. Then he points out the superiority of an individual over a group. That is the point of the paragraph in question. In the paragraph I quoted, Hamilton starts with “The sole and undivided responsibility of one man will naturally beget a livelier sense of duty” and ends “In the last, the coalition will commonly turn upon some interested equivalent: ‘Give us the man we wish for this office, and you shall have the one you wish for that’ …” which is clearly not in line with your reading.

Hamilton also continues later in the same essay, to point out that the purpose of “advise/consent” is to insure that the Executive does not nominate persons for essentially tainted reasons (note not idealogy or philosophy of Constitutional interpretation). The reasons he cites are to guard against “family connection, from personal attachement, ” and so on. His advice on what advise/consent might consider does not include detailed examination of the nominee, just his relationship with the Executive and the reasons he was selected over other qualified men.

You follow more closely the history of the Supreme Court, you think the bitter fights over confirmations has always been the case, as occurred with Bork and Thomas? I didn’t double check but have read on Ms Althouse’s blog (whoe teaches Constiutional Law) that prior to 1927, nominees were not even normally asked to come before the comittee. I also heard an “expert” on NPR noting that prior to Bork (and espcially in the 1960′s) when there were acrimonious arguments about a candidate they were couched against the arguments of Hamilton, that the arguments were about how the nominee was chosen and not his idealogy (even if underlying this it was the idealogy that caused the objections). Yet you claim the Thomas/Bork circus is not a change? I don’t think history supports your claim.

Finally, I do believe that by performing a detailed re-examination of the nominee by the Senate is indeed an abuse of power. For in essence, it is re-performing the nomination process. Having recently read Mr Hamilton’s arguments and observed the ensuing circus, I will indeed hold that contrary to your claim that I will change my tune when say, a future Democratic President might nominate an individual who is not a Constitutional constructionist, I will hold to the belief that “advise/consent” is not for the purpose of examining the nominee, but the motives of the Executive in choosing the nominee and deciding if it was done carefully and not done in payment for past favor or to baldly curry political favor. I will perhaps complain about the nominee, but that will be pointed at my disagreement with the Executive and not to discourage or deny his right to nominate, for as Hamilton points out, he is perfectly free to nominate yet another knucklehead just as bad or worse.

And I think you have every right no know those things about the nominee. I just believe they should be satisfied by the free press, and by a grilling by the Senate. Certainly, as I understand what “advise/consent” vs “nomination” means, not grounds for rejection of the nominee.

And your final comment displays how you misunderstand Mr Hamilton. You write: “The problem is not that the Senate explores a nominee’s ideology, it’s that they generally do so dishonestly and badly and only in the service of their own political interests.” And the result of them doing it dishonestly and badly is exactly why he wants them to limit their inquiry to the honesty of the Executive’s motives for such a group when usurping the nomination process does it “dishonestly and badly” because that’s the nature of power politics of a group.

Finally, for another rebuttal of my desire to limit the Senate’s advise/consent to how Mr Hamilton advised, see David Schaub’s essay.
#3 Mark Olson
July 20, 2005

sorry typos abound. At the very least, the third to last paragraph, should read, “satisfied by the free press, and not by a grilling in the Senate.
#4 JY
July 21, 2005

Mark,

Reread the paragraph in question, and you will (or should) realize that Hamilton was arguing why an individual should NOMINATE rather than a body APPOINT, not that an individual should have sole power in determining the fitness of the candidate.

To take Hamilton’s subsequent short list of reasons a candidate might be rejected as prescriptive and exhaustive is simply ludicrous: he is simply suggesting reasons why he thinks a deliberative body would typically reject a nominee, not elaborating the only reasons why they should. The Constitution does not place limits on the reasons why a nominee may be rejected, so to suggest that any rejection by the Senate is “extra-Constitutional” is flat wrong.

Furthermore, in Federalist 76, Hamilton is talking very generally about nominations by the executive, not specifically about Supreme Court nominations. It is absurd to suggest that the Senate should use the exact same standards to evaluate the nomination of, say, a cabinet position (a role within executive branch of government, responsible to the person doing the nominating) and a SCOTUS nomination (a lifetime nomination to an independent branch of government). He is saying that, in general, the Senate would likely be looking at the motives of the President in making the nomination, placing a check on inclinations toward cronyism and nepotism, etc., not that the Senate SHOULD only, ever look at these things. Nor is it reasonable to suggest that Hamilton could, in 1788, have fully apprehended the specific role in shaping and preserving American liberty SCOTUS would have. Hindsight makes it clear that a SCOTUS appoinment can have a far reaching impact on American law, well beyond the term of the individual making the nomination. To suggest that it would be Hamilton’s position that the President should, aside from concerns over nepotism, financial interests, or cronyism, have carte blanche in making such an appointment is unsupportable.
#5 Mark Paris
July 21, 2005

“Advice and consent”

The Senate may consent at its will. That is its Constitutional power and duty. It seems clear to me that the Senate must exercise that duty because of the necessity of retaining a balance of powers among the three branches of government. The balancing of executive and legislative interests in the choosing of a justice helps ensure that the judicial branch remains independent of the executive. The notion that the President should be essentially entirely free to appoint anyone to such a post is an attempt to circumvent the balance of power.
#6 Ed Brayton
July 21, 2005

Mark Olson wrote:

I’m sorry if you found my comments offensive. I did not intend a personal attack. My comment about extra-Constitutionality of your claims was not meant personally. I happen to think that by grilling the candidate the Senate is stealing a process meant for the Executive. Hence your support of such ideas is IMHO as I described it.

But even if you were right about that – and you’re not, as I will demonstrate – it is still dishonest to say that I argue that it’s okay to use extra-constitutional means or that I think it’s a good thing that the Judiciary Committee “besmirched Bork’s reputation”. It’s all the more offensive because it’s so illogical. Even if you were right that the Senate shouldn’t question nominees about their judicial philosophy, it doesn’t logically follow that doing so would “besmirch his reputation”. If you want to claim that about Clarence Thomas, I’d probably agree with you. Most of the opposition to Thomas was based not upon his judicial philosophy or how he would do his job, but upon the vastly overblown harrassment charges brought against him. Bork, on the other hand, was confronted and challenged on the grounds of his own publicly stated positions on issues directly relevant to his job. If it “besmirches his reputation” to have people disagree and challenge him on his own views, he’s in the wrong line of work.

Your previous post referred mainly to Bork’s “slouching” book, which was an opinion piece (I believe) written after his experiences in the confirmation process.

I referred to one review of the book Slouching Towards Gomorrah by a fellow conservative taking him to task for many substantive issues. The fact that it was written after his nomination is irrelevant to the argument, which was that his subsequent writing had only vindicated the Senate in voting against him. I also referred to the many other posts I’ve written about Bork over the last couple years, including detailed analysis of many of his law review articles and a thorough debunking of his views on the 9th amendment, the 1st amendment and the Griswold case. My argument was that Bork’s views are dangerous to liberty and therefore we should be glad he was not put on the Supreme Court; you did not bother to respond to the substance of that argument at all. Instead, you claim that it’s completely unfair and “extraconstitutional” for the Senate to dare to ask him anything at all about how he would do the very job he is asking to be given. And that’s just nuts, quite frankly.

You not I have misread #76. The paragraph quoted is directly speaking to why a individual should do the nomination process and not a group. You might re-read it for to support your (incorrect) assertion this acrimony is how things ought to be. Hamilton has just started off by considering all the methods which we might nominate. A person, a group, or by all. He dismisses “pure democracy” as impractical. Then he points out the superiority of an individual over a group. That is the point of the paragraph in question. In the paragraph I quoted, Hamilton starts with “The sole and undivided responsibility of one man will naturally beget a livelier sense of duty” and ends “In the last, the coalition will commonly turn upon some interested equivalent: ‘Give us the man we wish for this office, and you shall have the one you wish for that’ …” which is clearly not in line with your reading.

JY has already adequately dealt with this in his response above. Hamilton is arguing that it’s a bad idea to have the President alone appoint someone, and it’s a bad idea to have a group of people appoint them. Instead, he argues, we should have a president to nominate and the Senate to confirm or deny that appointment. He clearly contemplates that the Senate will occassionally turn one down for good reason, and they have. But Federalist 76 is about the appointment power in general, not about judicial appointments specifically. There is an obvious difference between a cabinet appointment, a temporary position that is part of the executive branch and therefore beholden primarily to the President himself, and a judicial appointment, a lifetime position to an independent branch of government beholden primarily to themselves and over which the other two branches have limited control. The founders certainly understood the distinction because they dedicated a large portion of the Constitution to detailing the judicial power and virtually none to the subject of cabinet appointments or ambassadors. And history has borne out this distinction as well. In our history, 28 out of 148 Supreme Court nominees have failed to be confirmed (just under 20%), while only 10 out of the vastly higher number of cabinet nominees have been rejected. Clearly the Senate is more deferential to the President when confirming a cabinet appointment or ambassador than when picking a judicial nominee, and this is entirely reasonable and expected.

You follow more closely the history of the Supreme Court, you think the bitter fights over confirmations has always been the case, as occurred with Bork and Thomas? I didn’t double check but have read on Ms Althouse’s blog (whoe teaches Constiutional Law) that prior to 1927, nominees were not even normally asked to come before the comittee. I also heard an “expert” on NPR noting that prior to Bork (and espcially in the 1960′s) when there were acrimonious arguments about a candidate they were couched against the arguments of Hamilton, that the arguments were about how the nominee was chosen and not his idealogy (even if underlying this it was the idealogy that caused the objections). Yet you claim the Thomas/Bork circus is not a change? I don’t think history supports your claim.

First, it’s absurd to combine the Bork and Thomas confirmations in one as though they were the same; they were not. The objections to Bork were ideological, while the objections to Thomas were personal, aimed at his character and not his judicial philosophy (though frankly, he is far better than Bork on either account). The Thomas confirmation does nothing to support your argument here. It might support a different argument, and one I would agree with, about the general nastiness and partisanship of judicial nominations, but it does not support the argument that the Senate cannot inquire into a nominee’s judicial philosophy.

Second, history does in fact support me on this. If you think that rejecting nominees for their political positions or ideology began with Bork, you simply don’t know your history very well. In fact, it began with our very first president. When George Washington nominated John Rutledge as Chief Justice, the Senate rejected him largely because he had publicly opposed the Jay Treaty with England. 14 nominees have been rejected because the President who nominated them were “lame ducks” and the Senate was controlled by the other party hoping that their guy would win the next election and they could get one of their own on the court instead, going back as far as John Quincy Adams. John Tyler alone had 5 (out of 6) nominees rejected for the court, one of them explicitly because his political views clashed with the party controlling the Senate. When James Madison nominated Alexander Wolcott for the court, the Senate rejected him because they believed he had too strictly enforced the embargo laws when he served as customs collector. George Woodward, nominated by James Polk, was rejected largely because of his strongly Nativist views. Ebenezer Hoar was rejected by the Senate because he had opposed Andrew Johnson’s impeachment. Even the famous Roger Taney was twice rejected for appointments, once as treasurer and once for the Supreme Court, because of his support for Andrew Jackson’s plan to remove government deposits from the Bank of the United States. Jeremiah Black was rejected largely because his views on slavery conflicted with the abolitionists in the Senate. John J. Parker, a Hoover nominee, was rejected by the Senate because of his alleged insensitivities to labor and race issues.

None of those include the myriad other examples of lower court judges being rejected for various reasons. They do not include, for instance, the Republicans in the 1990s failing to confirm over 60 nominees for the Federal bench without a single instance of them being objected to for the few reasons you cite as legitimate. Somehow I suspect that you weren’t railing about the evil Senate and their “extra-constitutional” attempts to “besmirch the reputations” of those nominees.

Finally, I do believe that by performing a detailed re-examination of the nominee by the Senate is indeed an abuse of power.

Except there is not a single word in the Constitution to support this claim of “extra-constitutionality”. The constitution only says that the President nominates and the Senate must consent before they take the seat. It does not have any criteria at all for how the Senate must go about deciding whether to confirm or not. And we know from the many early examples I cited above that consideration of a nominee’s political views goes back to the very beginning, at least to the nomination of John Rutledge. So the claim that even daring to ask a nominee about his judicial philosophy is “extra-constitutional” and an “abuse of power” finds no support whatsoever in the text of the constitution. And as Scalia reminds us so often, it is the text that matters (except when the text is inconvenient for him, as in the Raich decision, then he ignores the text). Nor does it find any support in our history going back at least to Washington.

If you want to claim that nominations are more vitriolic now than before, I’ll agree. If you want to claim that Clarence Thomas was railroaded and treated unfairly by the Senate, I’ll agree. If you want to claim that the Senate is often motivated by nothing more than partisanship and blind fealty to those who get them elected, I’ll agree. But if you claim that the Senate has no right or constitutional authority to inquire into the judicial philosophy of judicial nominees, that is not only wrong, it’s flagrantly, incredibly, astonishingly wrong. Not only do they have that right, they have that obligation and the nominees have the same obligation to be forthright in discussing their views. What could possibly be more relevant to the determination of whether to confirm a judge than how he goes about his job as a judge? It’s the only thing that matters and if the Senate does not examine those views, they are not doing their job.
#7 Aristomedes
July 21, 2005

Thank you, Ed, for your perspicacity (especially re balance-of-power issues) combined with your sense of caring about the results of decisions in all branches of government, and your commitment to liberty. You are a joy for me to read: even on the rare occasions our opinions have differed, you have challenged me at least to rethink my own, and given me information valuable to that process.
#8 Jeremy Pierce
July 21, 2005

Ed, the problem with what you’re saying is that the sentences in question are ambiguous. He could be saying that you have a certain view, and that you would describe in these exact words. The same sentence can rightly be used to say that you have a certain view that maybe you wouldn’t describe in such and such a way but that it amounts to such and such. Mark is clearly saying something like that, and you’re insisting on interpreting him in the former way.
#9 Ed Brayton
July 21, 2005

Jeremy wrote:

Ed, the problem with what you’re saying is that the sentences in question are ambiguous. He could be saying that you have a certain view, and that you would describe in these exact words. The same sentence can rightly be used to say that you have a certain view that maybe you wouldn’t describe in such and such a way but that it amounts to such and such. Mark is clearly saying something like that, and you’re insisting on interpreting him in the former way.

I disagree. If you say, “He argues that it’s okay to use extra-constitutional means to reach an end”, the most obvious meaning of that is that I take the position that it’s okay to violate the constitution as long as it serves my goals. That is completely and totally false. If he doesn’t want people to take it at its most plain meaning he could just as easily have said, “Ed argues that the Senate should reject nominees based upon their judicial philosophy, but I think that that would be an extra-constitutional basis for doing so.” There are far more accurate ways of saying what he meant without saying it in a manner which begs to be taken in the most obvious manner. But all of that is a side issue. The substance of the issue, on which he is dead wrong, is what matters.
#10 Mark Olson
July 21, 2005

JY,

I guess I haven’t made myself very clear. I realize that Hamilton is arguing that the Executive should nominate (not appoint) and the Senate should advise/consent. And Hamilton’s list of objections need not be taken as exhaustive, but that there is certainly a theme to his list. His list concentrates on the motives of the Executives not the judicial beliefs of the candidate. I agree that the SCOTUS appointments are more important than cabinet positions, but don’t you think what he seem to have now in the last few administrations has gone far beyond this theme. It is my opinion that by straying so far from this as we have, we are abusing the intentions of advise/consent vs nomination we are thereby using extra-consitutional means in our partisan goals. And as Ed rightly points out, this is not a criticism to be laid only on the lap of the Democrats.

Ed

On the minor issue, that I used “offensive” phrasing. You rightly coin a phrase which would have been “nicer” and says the same thing which I was trying to say. But it a phrasing like that would most likely have been ignored by you and you would not even be considering advise/consent vs nomination and or this issue at all. Alas, it might seem from your casual dismissal of my arguments as “stupid” that you are not actually taking my point seriously yet.

On the more substantial issues. First on one of the minor points. If you truly believe that Thomas’ and Bork’s confirmations were not similarly motivated, I think you are being intentionally (rhetorically) naive. If Thomas had a different idealogy, the personal accusations would have not arisen. That the tactics used were different ignores the point that the underlying reasons were idealogical. And you are actually correct I wasn’t railing about the 60 lower court Clinton nominees blocked for on what I claim are extra-Constitutional grounds in Clinton’s administration. However, you have made an incorrect assumption as to why. The reason I didn’t complain then, was that I didn’t give a rat’s ass about politics back then.

On the substantive point, what do you feel is the difference between advise/consent and the process of nomination? I happen to agree with Hamilton that the process of “grilling” the nominee or mounting substantial partisan campaigns should only be done only in extraordinary circumstances. Unless I misread you, you are not claiming that Bork was an extreme case, and Thomas and the other recent nominations are not. Every nomination is not an extraordinary circumstance. Treating every nomination as such is precisely what I am claiming as an abuse of power by the Senate. It seems to me that the only way we have of backing off from this abuse is to remind ourselves as JY points out that the primary theme of advise/consent was recommended by Hamilton as being limited to discovery of whether or not the Executive used improper motives. For your recommended course, that of always dredging partisan politics and acrimonious debate into every nomination, that way will neither give us better justices nor a stronger union. I am not dead wrong … just not recommending continued stupidity to be engaged by our elected knuckleheads as you seem to be.
#11 Ed Brayton
July 21, 2005

Mark wrote:

If you truly believe that Thomas’ and Bork’s confirmations were not similarly motivated, I think you are being intentionally (rhetorically) naive. If Thomas had a different idealogy, the personal accusations would have not arisen. That the tactics used were different ignores the point that the underlying reasons were idealogical.

The motivation is not relevant to the argument we’ve been having. Your argument was that the Senate does not have the right to question a nominee about ideology or judicial philosophy at all. That is where you are wrong, but now you seem to be backing off to some different position. Moreover, I disagree that ideology was the motivation to attack both Bork and Thomas. Unlike Bork, Thomas had no big track record of publishing his views. Thomas had no more a paper trail of his views than Souter, and considerably less than Kennedy, both of whom were considered conservatives at the time they were nominated (and Kennedy still is considered a conservative, though he has shown some libertarian leanings in certain types of cases). If it was solely about not liking conservative ideology, why only attack those two? Why not Scalia, who was nominated only a year before Bork was and was put on the court unanimously? Scalia was known to have a staunchly conservative judicial philosophy and had a long track record to look at as well. There is one huge difference: Scalia didn’t have a record of saying nutty things like Bork did, or a reputation for being a political hack (this is the man who was Nixon’s henchman after 2 others quit before doing his dirty work).

On the substantive point, what do you feel is the difference between advise/consent and the process of nomination? I happen to agree with Hamilton that the process of “grilling” the nominee or mounting substantial partisan campaigns should only be done only in extraordinary circumstances. Unless I misread you, you are not claiming that Bork was an extreme case, and Thomas and the other recent nominations are not.

You read me wrong. I am absolutely saying that Bork is an extraordinary situation. Bork’s views are so loony that they were absolutely justified in keeping him off the court. I’ve detailed many reasons why, with quotes from Bork’s law review writings over many years, and I’ve provided links to all of those. The Thomas debacle was pure political gamesmanship, and I fully agree that what happened to him during confirmation was unfair and absurd. But political gamesmanship and ideological opposition are not the same thing. Your argument has been that the Senate cannot even ASK a nominee about his judicial philosophy or consider that subject at all when casting their vote for or against. That is the position that I think is not only wrong, but off-the-scale ridiculously wrong. Judicial philosophy is, in my view, the only thing they should be questioning a nominee on and should be the only reason to vote for them or against them (assuming there isn’t evidence of serious wrongdoing or something, which is rare indeed). But instead of having a serious discussion about judicial philosophy and constitutional interpretation, we obsess over irrelevancies like whether Thomas ever told a dirty joke, or whether Douglas Ginsburg smoked pot in college (and as a result, we lost someone I think would have turned out to be one of our best justices – Ginsburg is an eminent scholar and brilliant legal thinker).

As far as the process goes, I think the role of the President and the Senate are co-equal. The President nominates, the Senate decides whether the nominee is acceptable or not and either puts them on the court or rejects them. And when determining that, judicial philosophy or ideology not only should not be off limits as you claim, it should be the principle focus of the nomination hearings and debate over the nominee. It is absolutely insane to me to take the position that the only subject that is completely off limits is the one thing that actually matters for a justice, how they would interpret the Constitution!
#12 Mark Olson
July 21, 2005

Ed,

I’ll bet you can answer your own question about why Scalia was unaminously nominated and not Bork and Thomas. Scalia’s legal credentials were, I believe, quite unassailable.

It actually sounds like we are in partial agreement. We both want to limit the scope of the questioning. You claim we should be limiting questions to judicial philosophy. I claim we should be limiting them to trying to acertain that the motivations or methods for chosing that candidate were not tainted by political preference. Your opinion is that the nominee’s judicial philosophy should pass muster as examined by the knuckleheads in the Senate who ordinarily display only a passing understanding of what that means. My idea is they keep their questioning to areas they understand: politicking, payback, and the “deal”. And furthermore to determine that this was not the case for these nominations. And of course the Senate obsesses over irrelevancies like Thomas’ dirty joke-telling and so on … because that’s what happens when the committee tries to do what the nomination process is. Selecting a candidate based on his judicial philosophy is precisely what nomination entails for what else can it be? That the Senate falls into all the political squabbles that exactly what Hamilton predicts. Which is exactly why they should only open that can of worms in “extra-ordinary” circumstances.

Judging judicial philosophy is, in my view, the very thing that the committee is not capable of doing, which is why we should press them to limit themselves to what they can do. For example, right now, most of our politicians seem to consider “judicial philosophy” code for figuring out if the jurist will back Roe or not. My guess is your understanding of what that phrase means is a little different. Furthermore, your mention of Souter and Kennedy (O’Connor?) show how difficult it is to “lock” down a nominee on questions of philosophy. It might even serve to convince you that this question is not as important as you think, eh?

As for whether Bork was truly an extra-ordinary circumstance. You obviously feel he was. I’m not convinced by your arguments, for I doubt his opinions were quite as unbalanced as you represent them. I’m suspicious of accounts that demonize an individual to the extent which you have done, without seeking to undestand (and explain) why that person might be taking the point of view they do.
#13 hagabard
July 21, 2005

I may be blind and stupid, but I missed the “partial agreement.” Sounds like you want to buy the Senate a big rubber stamp to press onto candidate’s foreheads (since they are morons incapable of principled action, in your view, they are barely capable of — and shouldn’t be trusted with — much else. Ed disagrees, thankfully.

I’ve also read all of Ed’s posts about Bork, and quite frankly I missed the part where he “demonized” Bork. Is it demonizing a judge to point out what he actually believes about the law? Wow. What a low bar.

Hag
#14 Ed Brayton
July 22, 2005

Mark wrote:

I’ll bet you can answer your own question about why Scalia was unaminously nominated and not Bork and Thomas. Scalia’s legal credentials were, I believe, quite unassailable.

Bork’s legal credentials were every bit as impressive as Scalia’s by any measure. Both also had impressive careers as legal scholars, Bork at Yale and Scalia at the University of Chicago. Both had a long track record of scholarly publishing. There are two primary differences between them.

A) Bork had shown himself to be a political hack and an apologist for whoever is in power regardless of the ethics involved when he carried out the Saturday Night Massacre of firing Archibald Cox.

B) Bork, unlike Scalia, had a long history of making loony claims about constitutional law, like claiming that the first amendment only protects political speech and the government is free to censor any other type of speech (Scalia, on the other hand, is a strong proponent of free speech, even symbolic speech like flag burning), or like claiming that there is no principled distinction between one person’s desire to take a given action and someone else’s desire to stop them from doing so. He also had a long history of flip flopping on his judicial philosophy. At one point he was a dyed in the wool legal realist, then he flipped totally in the other direction and became a formalist. Since the early 70s, he has claimed to be an originalist, but his version of originalism writes whole provisions out of the constitution. You don’t get much less originalist than that.

It actually sounds like we are in partial agreement. We both want to limit the scope of the questioning.

No, I don’t want to limit the scope of the questioning. I think there are some aspects they should focus on and others they should not, but there is no authority for limiting the scope of their questions because the Constitution provides no such authority. It says that the Senate must approve or reject a nominee and it contains not a single word prescribing or proscribing the basis on which they may do so. There are certainly some types of questions I would rather have them ask and some types of questions I would rather have them not ask, but unless the constitution is amended there is no authority for limiting the scope of their inquiry.

I claim we should be limiting them to trying to acertain that the motivations or methods for chosing that candidate were not tainted by political preference. Your opinion is that the nominee’s judicial philosophy should pass muster as examined by the knuckleheads in the Senate who ordinarily display only a passing understanding of what that means.

And you think the President has a better understanding of judicial philosophy than the Senate judiciary committee? If you were to give an exam on constitutional law to President Bush and to all the members of the Senate judiciary committee, I’d bet a year’s pay that Bush would finish at or near the bottom in his understanding of that subject. Bush is completely clueless when it comes to legal matters, as evidenced by the empty platitudes he throws around (“legislating from the bench”).

This is a man who, during the 2004 campaign, actually went to court to get a judge to declare that 527 organizations could not purchase campaign commercials, after his press secretary told reporters that the President thought he had banned such spending when he signed the campaign finance reform bill (and no, I’m not making up either of those two things, as insane as it sounds – see here and here). And mind you, he went to court to get a judge to declare that 527s couldn’t buy campaign commercials – something the law did not say, though he apparently thought it did – while giving campaign speeches complaining about judicial activism! Sorry, if Joe Biden and Jeff Sessions are “knuckleheads” on the subject of con law, President Bush is an utter moron. Most if not all of the members of the judiciary committee at least studied law. The only president in the last 30 years who has had a law degree was Clinton, and he actually taught constitutional law at Georgetown. By any sane measure, the judiciary committee is far more capable of assessing a nominee’s judicial philosophy than a President with an MBA and no understanding of con law whatsoever.

Judging judicial philosophy is, in my view, the very thing that the committee is not capable of doing, which is why we should press them to limit themselves to what they can do.

So we should allow the President, who has no education in or understanding of constitutional law at all, be the sole arbiter of a nominee’s judicial philosophy, but the judiciary committee, made up almost entirely of people who spent years studying and practicing the law (at least 2 of them are former judges themselves), must be prevented from even asking a candidate about their views on the subject. Seriously, are you reading what you write here? This has gone far beyond the point of mere absurdity and into the twilight zone.

For example, right now, most of our politicians seem to consider “judicial philosophy” code for figuring out if the jurist will back Roe or not.

And you think the President is any different? Seriously, can you make that claim with a straight face? Both parties have constituents to appease, one group of which is vehemently opposed to Roe and the other of which is vehemently in support of Roe. Both the President and the individual Senators, and their respective parties, make their decisions based on raw political calculus, not on principle or with the slightest concern for real issues. But at least those on the judiciary committee are capable of understanding discussions of con law; the President is completely clueless on the subject.

My guess is your understanding of what that phrase means is a little different.

A little different than whose understanding? My understanding of the phrase “judicial philosophy” is one that is informed by a fairly sophisticated understanding of the subject. I understand the difference between the various schools of legal theory, between formalism, legal realism and critical legal theory. I’m also familiar with law and economics theory, developed largely by Posner. And I understand the distinction between the various types of originalism – original intent, original meaning, and “liberal originalism”. These are all key issues in judicial philosophy, issues that I dare say every single member of the judiciary committee has the knowledge and education to understand far better than a President with an MBA and no training whatsoever in the law.

Furthermore, your mention of Souter and Kennedy (O’Connor?) show how difficult it is to “lock” down a nominee on questions of philosophy. It might even serve to convince you that this question is not as important as you think, eh?

Quite the opposite, in fact. It’s difficult to lock them down precisely because the committee tends to ignore judicial philosophy unless they have a big wide target to shoot at (the type that Bork provided for them with his decades of writing). With some nominees, you know exactly where they stand. There was no mystery concerning Scalia’s judicial philosophy because he had spelled out his views quite clearly and he defended those views eloquently in front of the judiciary committee. I think the committee should do far more in depth questioning on the subject of judicial philosophy and they should not accept platitudes like “I don’t believe in legislating from the bench” or “I believe in sticking to the Constitution”. If a nominee refuses to answer in depth questions and refuses to make known and defend their judicial philosophy, they shouldn’t get a vote. The nation has a right to know what kind of justice they are getting, how they interpret the Constitution and how they go about the job of judging. They work for us, remember, and they are asking for a lifetime appointment to a job that puts our very liberty in their hands. If they cannot state and defend their judicial philosophy, they shouldn’t be given that authority.

We both agree that the Senate generally does a lousy job of vetting a nominee for the court, but your solution is to take away from them the only issue that actually matters and allow one man – a man without the first clue about legal matters – to decide who will determine the future of our constitutional system. And that, as I keep reiterating, is simply off the charts insane.

As for whether Bork was truly an extra-ordinary circumstance. You obviously feel he was. I’m not convinced by your arguments, for I doubt his opinions were quite as unbalanced as you represent them. I’m suspicious of accounts that demonize an individual to the extent which you have done, without seeking to undestand (and explain) why that person might be taking the point of view they do.

You’re suspicious of my arguments because they disagree with your preconceived notions. But one of us has spent dozens of hours (the bulk of an entire semester in college) reading hundreds, perhaps thousands, of pages of Bork’s legal writings…and one has not. You have never even attempted to engage the substance of my criticism of Bork, despite being given links to at least half a dozen essays I’ve written on the subject. So your dismissal of my position is, quite literally, meaningless and based upon no knowledge at all.
#15 DEQ
July 22, 2005

Erwin Chemerinsky has some comments on the subject in the LA Times. He writes:

Myth: It is inappropriate for the Senate to consider the views and ideology of a nominee.

Reality: Every president has looked to ideology in picking federal judges. Likewise, the Senate has considered the views of the nominee in deciding whether to confirm them. For example, George Washington’s candidate to be the second chief justice, after John Jay resigned, was John Rutledge. But the Senate rejected him because they disliked his views about U.S. neutrality in the war between England and France.

In the 20th century, the Senate rejected John Parker in 1931 because of his anti-labor views, Clement Haynsworth and G. Harold Carswell in 1969 because of their conservative ideology, and Robert Bork in 1987 because of his narrow view of constitutional rights, including privacy and abortion rights.

The reality is that justices have great discretion in interpreting broadly written constitutional phrases, and ideology matters greatly in how a justice will rule.

Chemerinsky also points out that most justices don’t experience significant shifts in their judicial philosophies after they get to the Supreme Court, and that close questioning doesn’t violate judicial independence or impartiality.
#16 Mark Olson
July 22, 2005

Ed,

You are sometimes quite the slippery writer. In your previous comment, you wrote that “Judicial philosophy is, in my view, the only thing they should be questioning a nominee on …” and I took your statement at face value. Having decided that might be true, I wrote that you were in favor of limiting the scope of questioning, assuming that reasonable people might detest the circus that nominations have become. But no … you now claim that you don’t want to limit the questioning. Well, which is it? Given the current way nomination hearings are trending, I’d hold that the not attempting to limit questioning is … less than wise.

As for your somewhat prickly reply that your understanding of judicial philosophy is not just how a person stands on certain key issues (like Roe), why can’t you just agree with my statement instead of proving it. I said exactly what you restate.

As for why the Executive should be doing the choosing and not a committee, I’ll refer you to Federalist #76. And thus the circle closes. You think Mr Hamilton’s opinions in that essay are off the charts insane. I disagree.

And I stated why I’m suspicious of your stated stance on Bork. It (IMHO) has nothing to do with my preconceived notions. I’m not sure why you don’t believe for the reasons I give. You took such offense when I imputed the incorrect motives to yourself, one might think you would be more wary of doing the same, especially when I have stated my reason explicitly.
#17 GeneralZod
July 22, 2005

“I’ll refer you to Federalist #76. And thus the circle closes. You think Mr Hamilton’s opinions in that essay are off the charts insane. I disagree.”
Actually, I think Ed’s argument is that you misunderstood that document, NOT that Hamilton is crazy.
(Not having read it, i cannot say who’s interpretation is correct.)
#18 Dave S.
July 22, 2005

Actually, I think Ed’s argument is that you misunderstood that document, NOT that Hamilton is crazy.
(Not having read it, i cannot say who’s interpretation is correct.)

I have read it, and Ed is quite correct.

Hamilton discusses the pros and cons of three modes of presidential appointment: direct appointment by a single man, appointment by a commitee, and nomination by a single man with the committee acting to confirm or deny the nomination. He ruled out appointment by the people themselves as too impractical. In the end, the last method was argued as best.

Interestingly, Hamilton even suggests that it’s better for a single man to nominate someone than a committee, even if some on the committee are more able than that single man -

Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.
#19 Ed Brayton
July 22, 2005

Mark wrote:

You are sometimes quite the slippery writer. In your previous comment, you wrote that “Judicial philosophy is, in my view, the only thing they should be questioning a nominee on …” and I took your statement at face value. Having decided that might be true, I wrote that you were in favor of limiting the scope of questioning, assuming that reasonable people might detest the circus that nominations have become. But no … you now claim that you don’t want to limit the questioning. Well, which is it? Given the current way nomination hearings are trending, I’d hold that the not attempting to limit questioning is … less than wise.

For crying out loud, there’s nothing the least bit slippery about this. The fault lies in your presumptions, not in anything I wrote. There is a big difference between “I think these are the kinds of questions they should ask” and “I think they should be limited by law to only these kinds of questions”, in the same way that “I don’t think people should read trashy novels” is entirely different from “I don’t think people should be allowed to read trashy novels.” Once again, there is no constitutional authority for limiting the scope of the questioning, unless you want to pass an amendment to make it so. But that would be crazy. That would codify the nutty idea that we should put people on the Supreme Court without even being allowed to ask them what they would seek to do once on it. It would mean that the only person with a right to even ask is the President, and that’s done in private, for crying out loud.

As for why the Executive should be doing the choosing and not a committee, I’ll refer you to Federalist #76. And thus the circle closes. You think Mr Hamilton’s opinions in that essay are off the charts insane. I disagree.

There you go again, back to the “you agree with MY characterization of this” argument. It’s really highly dishonest. No, I do not agree that Hamilton’s opinions in that essay are insane, I just don’t agree with your interpretation of them (I do think some of Hamilton’s other ideas are pretty whacked though). Federalist 76 does not say what you think it says. It doesn’t say that the President should choose who goes on the court. It says the president should nominate who goes on the court, but only if the Senate consents. But remember, you’ve already admitted that the few reasons he gives for why the Senate might do so are not exhaustive. And you’ve already admitted that there is a big difference between a cabinet position and a Supreme Court position. Your interpretation of it demands that the Senate be nothing but a rubber stamp for the president, who alone has the power to determine whether a nominee is actually fit for office. But nothing in the text of the constitution supports that, nor does anything in our history.

When the Senate objected to John Rutledge on ideological grounds in 1795, the Senate was dominated by Federalists – the very people who had fought for ratification of the Constitution, including men like Rufus King, one of the signers of the Constitution. And the leader of the Federalists was…Hamilton himself. There were no allegations that Washington’s choice of Rutledge was tainted by political preference or any of the other reasons you want to be exclusively looked at. He was rejected because he had delivered a speech against the Jay Treaty, which the Senate (and the President who nominated him) had just ratified and supported. And that didn’t even have anything to do with the Supreme Court! And no one, including Hamilton, who served in the Washington administration as treasury secretary, and including virtually all of the men who had drafted the Constitution, most of whom were still alive, protested that the Senate had denied the nomination on improper grounds. And that was far less relevant to the job of Justice than is one’s judicial philosophy. History simply does not support your interpretation and you’ve made no attempt to dispute the substantive reasons why.

And I stated why I’m suspicious of your stated stance on Bork. It (IMHO) has nothing to do with my preconceived notions. I’m not sure why you don’t believe for the reasons I give. You took such offense when I imputed the incorrect motives to yourself, one might think you would be more wary of doing the same, especially when I have stated my reason explicitly.

You’re missing the point. Since you know nothing of Bork’s record of writings on con law, you have no substantive or logical basis to dismiss my position on Bork. It’s like saying, “I think your interpretation of Hamlet is incorrect” without having bothered to read Hamlet. Don’t expect your dismissal to be taken the least bit seriously if you haven’t done the research necessary to make a rational evaluation of the position you’re dismissing.

I notice also that you dropped your ridiculous assertion that the President is capable of evaluating the judicial philosophy of a nominee – in private, no less – but the Senate judiciary committee is not. Good move.
#20 Mark Olson
July 22, 2005

Ed,

This is getting silly. I am not advocating a law to insure that the nominations are “rubber stamped”, what I hold is that only in extra-ordinary circumstances should the questions and investigations stray from the line of questions suggested by Mr Hamilton. And yes, Mr Hamilton suggests that the president nominate and that should be subject to the approval of the Senate. He also suggests what ordinarily that questioning might wisely entail. You seem to either ignore or pass over the contention that a detailed grilling into all possible aspects of the nominee is not “advise/consent” but is basically what the nomination process needs to do. I’m holding that “detailed” grilling should be reserved for only “whacked out” nominees and suggesting that if it becomes the standard practice, that this is an abuse of what advise/consent means. I didn’t say he should “choose” who goes on the court and that as your other commenters seem to think, that the Senate is to just rubber stamp them. I have repeatedly said, I follow Mr Hamilton in thinking that the primary purpose of the “advise/consent” is to insure that the Executive’s motives are in line, and we would be wise to hold to that when possible. I’m not sure why you have difficulty with understanding my position, for you keep mistating it.

Finally, on Bork … my “substantive and/or logical” reasoning to dismiss your position on Bork is that I didn’t get the impression you gave a very balanced view. As you pointed out above, he was a highly respected scholar on con law. Your “interpretation” doesn’t reflect that. If you wish to present your essays on Bork as “balanced and fair”, I’m sorry I didn’t get that impression. My impression is that your essays are primarily supporting your thesis that Bork is “nuts” and a far-out dangerous whacko. I’m if I was seeking (as per your example) for interpretations of Hamlet, I would in fact try to seek out a variety of different readings and interpretations, (re)read the play, and then make my choice. I would not necessarily say I have “dismissed” your position, just that I would not seek only your opinion.

As for Mr Bush’s capablilities to choose a candidate, I take it then you think he royally screwed up by nomninating Roberts?
#21 Ed Brayton
July 22, 2005

Mark wrote:

I am not advocating a law to insure that the nominations are “rubber stamped”, what I hold is that only in extra-ordinary circumstances should the questions and investigations stray from the line of questions suggested by Mr Hamilton.

Nonsense. You are in fact advocating, and have repeatedly said, that the Senate should not be allowed to question a nominee about judicial philosophy at all. You have since tacked on this “extraordinary circumstances” standard, but you haven’t defined it in the slightest. If “extraordinary circumstances” includes serious questions about someone’s judicial philosophy that suggest that the nominee would seriously misinterpret the constitution and diminish our liberty, then how can the Senate find out about such things without doing the very thing you claim is “extra-constitutional” to do?

And as for your claim that you don’t think they should “rubber stamp” a nominee, what on earth are they to do? According to you, the only reason they could possibly challenge a nomination is if they uncover some major ethical lapse, like the president being bribed to give someone a position on the court. Has that ever happened? Not to my knowledge. So there is no basis, in your system, for the Senate to every not confirm a nominee other than situations that just never occur. How exactly does that not make them just a rubber stamp? The Senate cannot, under your system, conclude that the nominee will diminish our liberty and therefore should be kept off the court. So what is the point of having the senate pass judgement at all if you’ve removed the only relevant bases for making that judgement? The only basis you’ve provided that you think is legitimate is this vague statement about the president’s “motives” – whatever that means.

Finally, on Bork … my “substantive and/or logical” reasoning to dismiss your position on Bork is that I didn’t get the impression you gave a very balanced view. As you pointed out above, he was a highly respected scholar on con law. Your “interpretation” doesn’t reflect that. If you wish to present your essays on Bork as “balanced and fair”, I’m sorry I didn’t get that impression. My impression is that your essays are primarily supporting your thesis that Bork is “nuts” and a far-out dangerous whacko. I’m if I was seeking (as per your example) for interpretations of Hamlet, I would in fact try to seek out a variety of different readings and interpretations, (re)read the play, and then make my choice. I would not necessarily say I have “dismissed” your position, just that I would not seek only your opinion.

Well as soon as you’ve taken the time to research Bork’s legal writings, come back and we can discuss whether my conclusions about them are reasonable or not. Until you do that, only one of us has any rational basis at all for making any conclusions on that subject.

As for Mr Bush’s capablilities to choose a candidate, I take it then you think he royally screwed up by nomninating Roberts?

No, that doesn’t logically follow at all. I don’t see any reasons at this point to oppose his nomination, but that is precisely because neither I nor anyone else knows much of anything about him. He’s very smart, no doubt, and his credentials are excellent. But that is true of anyone who is nominated. He appears to have managed to spend 25 years in the field without ever giving any indication of how he goes about interpreting the constitution, which is really quite incredible to me. We know he’s politically conservative, but that doesn’t mean much. Even if he was classified as a judicial conservative, that could mean any number of things. Bork and Scalia are majoritarian conservatives; Thomas is an originalist (a genuine one, as opposed to the previous two for whom originalism is primarily a rhetorical device). All are political and judicial conservatives. So that label tells us very little about how he interprets the Constitution. Presidents make nominations almost solely for political purposes, whether they know anything about the law or not. Sometimes they get it right despite themselves and sometimes they get it horribly wrong. The fact – and it is a fact – that Bush is clueless on legal matters is not judged on the basis of whether a candidate he chooses for reasons that have nothing to do with legal matters turns out to be okay or not.
#22 Ed Darrell
July 25, 2005

Maybe one of the best things we can say about Roberts is that he is not a member of the Federalist Society. Of course, some have claimed he was, and no doubt there will be a scouring of his various resumes to see whether he claimed membership . . .

If one wishes to compare Bork’s nomination to another nomination, I’d suggest comparing it to William Bennett’s nomination to be Secretary of Education. There was at that time enough overlap of the memberships of the Senate Labor Committee and the Senate Judiciary Committee, including especially Ted Kennedy and Orrin Hatch, that the dynamics of the committees were quite the same. Both nominations were orginally opposed by Democrats and interest groups on largely the same grounds.

But at the hearing, William Bennett was deferential to the Senate and the senators. He was a courtly and educated gentleman, explaining politely where his views had been misinterpreted, offering that some of the criticisms of his views were legitimate (very few cases), and offering that there were genuine differences in other places. On the real differences, he went into great detail explaining his views and how he arrived at them.

In the end, he won most of the Labor Committee, including the Democrats, and his nomination was approved by the full Senate.

Bork came in combative. He refused to back down on any views, even where he had changed his mind. He presented a major attitude that the senators were all fools, including his supporters, and that no one else on Earth knew the law as well as he.

Bork lost.

I don’t think Bork was asked anything other candidates were not asked. His answers made all the difference. He made enemies during the hearing. He offended his friends, and he gave every senator good reasons to vote against him. That he got any votes at all is a tribute to the principles of the senators who had agreed to support him through thick and thin, a devotion Bork himself had repudiated.

One other side note: It appears that several of Clinton’s appointees were rejected solely on the basis of their race. The Judiciary Committee failed to hold hearings, or failed to report out after hearings, a number of highly qualified people, including a number of African Americans and Hispanics. Court cases here in the North Texas Federal District languished for years because the Republicans failed to act to approve a highly-qualified, non-controversial African American from Ft. Worth, for example.

Mr. Olson’s original claims against Mr. Brayton’s views were far off the mark. He’s not gotten much closer to the mark, either.