Last night, Senator Ben Nelson became the first Democrat to announce he will vote against Elena Kagan’s confirmation:

NELSON STATEMENT ON SUPREME COURT NOMINEE ELENA KAGAN July 30, 2010 – Today, Nebraska’s Senator Ben Nelson issued this statement on the president’s nomination of Elena Kagan for the U.S. Supreme Court to fill the seat of retired Justice John Paul Stevens: “As a member of the bipartisan ‘Gang of 14,’ I will follow our agreement that judicial nominees should be filibustered only under extraordinary circumstances. If a cloture vote is held on the nomination of Elena Kagan to the U.S. Supreme Court, I am prepared to vote for cloture and oppose a filibuster because, in my view, this nominee deserves an up or down vote in the Senate. “However, I have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded. Therefore, I will not vote to confirm Ms. Kagan’s nomination.”

1996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service.  Imagine what he could have accomplished with more time!  Even Sarokin’s reason—or, more precisely, his stated reason (see This Week for April 25, 1996)—for resigning is intensely political:  he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.”  In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling. 

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat.  In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before:  Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster.  On September 4, 2003, Estrada withdraws his nomination.  Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist:  “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.”  Guess again, senator.

1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court.  Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981.  Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit. 

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit.  With only two Senate Democrats voting yes, the cloture vote fails.  Owen, first nominated in May 2001, is ultimately confirmed in May 2005. 

This recent editorial in the Des Moines Register is harshly critical of Senator Grassley’s decision to vote against Elena Kagan. The problem is that the Register’s criticism is based on a mischaracterization of Senator Grassley’s actual comments.

They claim that Grassley was motivated almost entirely by a decision to pay back Democrats for their opposition to Republican nominees. In fact, Grassley’s statement before the Judiciary Committee didn’t mention Democratic action on Republican nominees even once.

Rather, the senator spent his lengthy comments detailing substantive problems he has with Kagan’s record, including her lack of experience, her refusal to answer senators’ questions (this despite her having written that nominees to the court should speak more candidly), and past actions that made Grassley worry that Kagan would “allo[w] her politics and personal views to steer her legal thinking and tak[e] an outcome-based approach when analyzing cases.” These actions include her manipulation of the scientific opinion of a medical group to help bolster support for partial-birth abortion, her failure to vigorously defend the Defense of Marriage Act as solicitor general after swearing she would do so during her earlier confirmation, her willingness to look to international law for ideas when interpreting the Constitution, and her narrow view of the Second Amendment.

The Register called Grassley’s statement about the Democrats’ making judicial confirmations into ideological votes a “pathetic” move showing a simple “grudge” against Democrats for blocking Republican nominees like Miguel Estrada. But contrary to the Register’s statement, Grassley’s primary reason for voting against Kagan — indeed, the only reason he cited in his public statement to the committee — was substantive and “on the merits.”

The one time Senator Grassley did discuss the Democrats’ actions was in response to a question at a press conference, and his explanation was not an irrelevant excuse but underlined why his other reasons for voting against Kagan were relevant. Grassley has voted in favor of other liberal nominees in the past, even ones with similar backgrounds, because he was operating on a different standard that accorded more deference to the president. Under his previous standard, he might have discounted many of his current concerns with Elena Kagan (although I think there is a strong case to be made against her judicial temperament, even under a more deferential standard, given her actions as dean of Harvard Law School and her politicization of certain solicitor general decisions). But, according to Grassley, the repeated filibustering of Miguel Estrada was a key turning point in the typical practice of the Senate, one in which, as a body, it moved toward voting based on ideology. He explained that Republicans shouldn’t leave ideology out as long as the Democrats use that as their standard — unilateral disarmament is as doomed a strategy here as anywhere else.

The Register seized on one answer of Senator Grassley’s in order to set him up as a straw man with whom to contrast the “principled” Senator Graham. Graham’s bizarre determination that significant deference to the president is constitutionally required has been ably refuted by Kagan supporter Michael Dorf. Adam White has argued that Graham’s interpretation has it precisely backwards — that, if anything, the Founders intended senators to be a strong counterbalance to the president rather than a mere echo of his own choices. Graham and Grassley’s positions both might be acceptable versions of principles, but there’s nothing in the Constitution to favor a roll-over-and-play-dead approach to advice and consent versus giving judicial nominees scrutiny based on the principles they would use to decide cases. Not only was the Register disingenuous in how it portrayed Senator Grassley, its underlying appeal to principle doesn’t get us any closer to a functional constitutional confirmation system. Instead of the knee-jerk vote against another party’s nominee that they wrongfully accused Grassley of approving, the Register would have knee-jerk support of nominees. Sounds to me like a “pitiful excuse” for voting yes.

2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.  You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices.  But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.”  Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”

Ed Whelan and Matthew Frank have already criticized yesterday’s New York Times piece by Adam Liptak, particularly its acceptance of a political-science study that used the crude technique of gauging the conservative/liberal bent of the Supreme Court by coding decisions based on their outcome in “political” terms. The study is certainly full of politics, but science? Not so much.

Put briefly, the study identifies litigants/interests in Supreme Court cases by gross ideological categories (e.g. criminal defendants vs. prosecution, corporations vs. consumers, unions vs. employers, government vs. individuals), then adds up the winners and losers from the “left” and the “right” to assign an overall ideological score. Thurgood Marshall famously described his approach to the law as “you do what you think is right and let the law catch up,” and if you subscribe to Marshall’s philosophy, this type of blunt head-counting might make sense. The problem is that “conservative” judges are downright allergic to such an activist philosophy, because they believe that it is the judge who must “catch up” to the law by putting aside political preferences when deciding cases.

To his credit, Liptak acknowledges several flaws of the study, but suggests that the coding only gets thrown off on the “occasional case.” In fact, there are large groups of cases for which the coding doesn’t make any sense at all. First, there are the cases in which the most conservative justices typically side with what are considered “liberal” causes. These include many pro-criminal-defendant cases; conservative judges take the Constitution seriously, and the Constitution includes strong protections for criminal defendants. That is why Prof. Douglas Berman, author of both a sentencing textbook and the widely-cited blog Sentencing Law and Policy, has called Justice Scalia “the federal criminal defendant’s best friend.”

The use of medical marijuana was another case in which the conservatives came to a “liberal” result: Justices O’Connor and Thomas and Chief Justice Rehnquist cited Commerce Clause limits on the federal government’s power to restrict medical marijuana. Justice O’Connor explicitly stated that she would not support a medical-marijuana law as a policy or political matter, but did so as a purely legal matter — emphasizing that politics and judicial philosophy simply do conflict, and the former must give way to the latter.

More fatal to Liptak’s argument is that it ignores a basic tenet of statistics, namely that correlation is not equivalent to causation.

I was going to weigh in with a long blog post about yesterday’s NYT front-pager and what a mind-numbing waste of ink it was–but Ed Whelan got there before me and said most of what is worth saying.  I have vented my spleen at length in the past about the work my more statistically-minded political science colleagues do on the Supreme Court.  Most recently I did so, in passing, here.  The “coding” of cases; the equation of “activism” with any pattern of invalidating laws or overturning precedents; the facile equation of politically-favored or -disfavored outcomes with ideologically-driven behavior; the scanting of historical context and the drift of jurisprudential patterns; the obliviousness to legal reasoning and the question of its soundness–all of these add up to an effort by many political scientists, over the last half century, to make themselves, their students, and the general public dumber about the Supreme Court and its work.  For the most part they have only succeeded with themselves, and not, thank goodness, with their students or the general public.  In the case of the New York Times, they appear to have achieved a partial success.

The most amusing part of the Times’ feature yesterday was the online survey, inviting readers to find out how much their own views are in synch with those of the Supreme Court on a half dozen issues.  Go take the questionnaire, just to read the idiotic questions.  They could not possibly have been written by anyone who is accustomed to think in legal or constitutional categories.  And therefore the survey is useless for any citizen who is even half-informed about such things.  But it’s good enough for the Times!

Yesterday’s New York Times carries a long article by Adam Liptak titled “Court Under Roberts Is Most Conservative in Decades.”  As the mock title of this post is meant to illustrate, I don’t think that the proposition set forth in the article’s title is very meaningful.  And although the article itself has more nuance than the title—it acknowledges, for example, that the “rightward shift is modest” and that “the court’s decisions are often closely aligned with or more liberal than public opinion”—its overall effect is likely to mislead the reader. 

Some observations:

1.  The Supreme Court, with its eight current members and the prospective addition of Elena Kagan, will be no more “conservative” (in crude political terms) than Justice Kennedy is.  Consider Kennedy’s opinions and positions on abortion (Planned Parenthood v. Casey), gay rights (Romer v. Evans and Lawrence v. Texas), the Establishment Clause (Lee v. Weisman), the death penalty (Roper v. Simmons, Kennedy v. Louisiana), national security (Boumediene v. Bush, Hamdan v. Rumsfeld, Rasul v. Bush), and the general use of contemporary foreign law to redefine the meaning of provisions of the Constitution (Roper, Kennedy, and Lawrence).  Consider also, for example, that Ted Olson’s entire litigation strategy in the anti-Proposition 8 case in California is premised on Olson’s very plausible conviction that Kennedy will vote to invent a federal constitutional right to same-sex marriage.  I simply don’t see how anyone can seriously regard Kennedy as generally conservative.  Neither will the Supreme Court be so long as Kennedy is at its center.

I of course don’t dispute that Kennedy has, on a range of matters, provided the fifth vote for holdings that are frequently described as conservative.  But whether it’s adopting the ACLU’s robust reading of First Amendment speech protections (as in Citizens United) or embracing the proposition that the government must generally be colorblind (as in the 2007 Seattle and Louisville schools cases involving racial-balancing plans) or deference to the federal partial-birth abortion law enacted with strong bipartisan support in Congress, it’s difficult to see what is particularly conservative (again, in political terms) about so many of the rulings so frequently described as such. 

Given Kennedy’s central role, I don’t see why Liptak asserts that the Roberts Court “is likely to allow a greater role for religion in public life” (cf. Lee v. Weisman) or that “[a]bortion rights are likely to be curtailed” (what further room beyond upholding the congressional ban on partial-birth abortion does Kennedy’s position in Planned Parenthood v. Casey provide?) 

2.  More generally, I think that it’s far from clear that Chief Justice Roberts “is settling in for what is likely to be a very long tenure at the head of a court that seems to be entering a period of stability.”  Both Justice Scalia and Justice Kennedy are 74, and I wouldn’t offer even odds that both will be on the Court a decade from now. 

If President Obama has the opportunity to replace either, the Court will swing wildly to the Left.  That’s the real threat that Americans should be concerned about.

3.  As I’ve previously explained, at most the Roberts Court has taken a small step to the right—and towards the center.  I am not contending that the Court is walking in opposite directions.  Rather, after decades of liberal judicial activism on so many issues, the Court’s starting position remains decidedly on the left.  (Again, I think that the title of this post illustrates the point.)

Liptak reports that political-science data shows that the Roberts Court “has staked out territory to the right of the two conservative courts that immediately preceded it.”  He’s referring to the so-called Burger Court and the so-called Rehnquist Court.  But unless one is blinded by the convention of identifying an era of the Court by the name of the Chief Justice, there is little reason to regard either the “Burger Court” (e.g., Roe v. Wade) or the “Rehnquist Court” (see most of the Kennedy cases above) as generally conservative.  Neither certainly made much headway in turning back the excesses of the Warren Court, and each instead added to those excesses.

4.  As Liptak acknowledges, the ideological coding of cases that political scientists used to generate the data he highlights is “a blunt instrument.”  For example, that coding would apparently treat identically, as “conservative,” both the position that the Constitution leaves abortion policy to the political processes and the position that the Constitution forbids permissive abortion laws.  (This essay of mine highlights the difference between those two positions.) 

Perhaps I’m mistaken, but I gather that the basis on which the political scientists claim that Justice Alito is the “third-most conservative justice to serve on the court since 1937” is limited to how he has voted on the menu of cases he has faced, versus how other justices voted on the very different menu of cases they faced.  That approach would seem worse than blunt.  If, for example, there’s no reason to believe that Justice Robert Jackson or Justice Hugo Black would have believed that the Constitution prohibits the death penalty for the crime of raping a child, why does Alito’s conservative score get an upward bump over theirs merely because he was on the Court for (and in dissent in) Kennedy v. Louisiana?  In other words, the ideological case count would seem particularly ill-suited to comparing justices from different eras.

5.  Liptak repeats, and largely credits, Justice Stevens’s claim that (as Liptak summarizes it) “every one of the 11 justices who had joined the court since 1975, including himself, was more conservative than his or her predecessor, with the possible exceptions of Justices Sotomayor and Ruth Bader Ginsburg.”  But this claim is badly flawed. 

For starters, forget the “possible” exception of Ginsburg:  Ginsburg is clearly more liberal than her predecessor Byron White (dissenter in Roe and author of the majority opinion in Bowers v. Hardwick) on a broad range of issues. 

It’s far from clear that Kennedy is overall more conservative than Justice Powell was.  What’s the evidence?  Here’s some contrary evidence:  On homosexual sodomy, Powell joined the Court’s 1986 ruling in Bowers v. Hardwick, which Kennedy’s 2003 opinion in Lawrence v. Texas overruled.  (Yes, I know that Powell was later quoted as regretting his vote, but we’re comparing actual records.) 

Was O’Connor really more conservative than Potter Stewart, who dissented from Griswold v. Connecticut and from the Court’s 1962 school-prayer ruling in Engel v. Vitale?

As Liptak notes, the political-science data so far indicates that Chief Justice Roberts is “slightly more liberal” than Rehnquist.

Further, it’s difficult to see how the differences between, say, Stevens and Douglas or Brennan and Souter ever had any impact on the outcome of a particular case.

6.  You can be sure that the Left will use Liptak’s article and the political-science data to continue its attack on the Roberts Court.  But the American people have been hearing for some 25 years about the supposed conservative threat that the Supreme Court poses.  As Liptak notes, public opinion polls show that more Americans think that the Court is too liberal than think that it is too conservative.  Those of us who hope that the current Court will some day genuinely deserve to be called the Roberts Court need to continue to highlight the reality and ongoing threat of liberal justices who invent rights that aren’t in the Constitution and who ignore rights, and limits on governmental power, that are.

1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.  

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter:  Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.”  His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.”  On voting rights, he “was willing to defend the indefensible.”  He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade.  He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

Senator Lamar Alexander, who was one of nine Republicans to vote in favor of the Sotomayor nomination, has announced that he will vote against the Kagan nomination.

As for the other eight Republicans who voted in favor of Sotomayor:  Graham and Lugar have said they will vote for Kagan.  No word yet from Bond, Collins, Gregg, Snowe, and Voinovich.  Mel Martinez is no longer in the Senate.

In case it weren’t obvious enough (as I discussed in point 2 here and in this post) that Senator Lindsey Graham’s media-fawning adoption of a position of extensive deference to President Obama’s Supreme Court picks wouldn’t result in any Democrats following his lead, The Hill reports today that various Senate Democrats who supported the Roberts and/or Alito nominations are now expressing their regret for having done so.

I offer here a few additional observations on Senator Leahy’s ridiculous disparagement (a “crude allegation”) of my statement that Mrs. Ledbetter “had waited more than five years after she learned of the discrimination to file her EEOC charge” was a “crude allegation”—and on Mrs. Ledbetter’s response to Leahy.  (But keep in mind, above all, that this side issue is utterly irrelevant to the central point in my testimony about the Ledbetter case—that the vehement denunciation by Senator Cardin of the Court rests on his gross misreading of the ruling.  Ditto, as it happens, for many other Democrats.)

1.  Here’s Stuart Taylor’s most detailed account of Mrs. Ledbetter’s delay:

Ledbetter admitted in her sworn deposition that “different people that I worked for along the way had always told me that my pay was extremely low” compared to her peers. She testified specifically that a superior had told her in 1992 that her pay was lower than that of other area managers, and that she had learned the amount of the difference by 1994 or 1995. She added that she had told her supervisor in 1995 that “I needed to earn an increase in pay” because “I wanted to get in line with where my peers were, because… at that time I knew definitely that they were all making a thousand [dollars] at least more per month than I was.”

Yet contrary to Obama’s assertions, Ledbetter did not “immediately” file suit — not in 1992, and not in 1995. Instead, she waited to sue until 1998, when her retirement was imminent. This was well over five years after she had learned of the pay disparities. It was also after a supervisor whom she blamed for much of the alleged discrimination had died, making it impossible for the employer to refute those allegations.

2.  Taylor and others have made the same point repeatedly—and in very strong language (e.g., “rampant falsehoods”)—since the Ledbetter ruling was issued in May 2007.  Yet, Taylor tells me, no one has ever written to him to dispute the accuracy of his statements on this point.  Hmmm, I wonder why.

3.  If Mrs. Ledbetter was a victim of unlawful discrimination, she would deserve our sympathy, irrespective whether she failed to pursue her rights in a timely way.  But that sympathy shouldn’t lead folks to excuse false statements about her case.

I say “If” because, according to Taylor,

It’s less than clear, by the way, that Ledbetter was a victim of discrimination at all. Her years of poor performance evaluations, plus repeated layoffs affecting her eligibility for raises, convinced a federal magistrate judge that her relatively low pay did not prove sex discrimination. The jury disagreed and awarded Ledbetter back pay and punitive damages. Maybe the jury was right; maybe the magistrate judge was.

In the testimony that I submitted to the Senate Judiciary Committee on the Kagan nomination, I critiqued committee Democrats’ shoddy attacks on the Roberts Court.  As I explained, Senator Cardin was simply wrong when he contended (as part of a showcase colloquy on the Senate floor) that the Court in Ledbetter v. Goodyear Tire & Rubber Co. had “said Mrs. Ledbetter had to file her case within 180 days after the beginning of the discrimination, and since she did not do that, her claim was barred by the statute of limitations.”  On the contrary, I spelled out,

the Court in Ledbetter expressly left open the question “whether Title VII suits are amenable to a discovery rule”—whether, that is, in those instances in which the employee was not aware that she had been discriminated against when the discriminatory act occurred, the charging period would instead run from the time that she discovers that she has been discriminated against.

As I pointed out, the Court in Ledbetter noted that Mrs. Ledbetter did “not argue that [a discovery] rule would change the outcome in her case.”  Citing (in my footnote 7) a National Journal article by Stuart Taylor, I also observed that the “obvious reason why she did not make that argument was that she had waited more than five years after she learned of the discrimination to file her EEOC charge—far longer than the 180-day charging period that applied under Title VII.”

I made these same points in my oral testimony.  In addition, former Solicitor General Greg Garre, who was on the government’s brief in Ledbetter and who was testifying in support of the Kagan nomination, affirmed that the Court’s ruling was in line with numerous Supreme Court precedents.

I’ve just learned today that, some days after the hearing, Judiciary Committee chairman Patrick Leahy sent Mrs. Ledbetter a letter asserting that I had “made a crude allegation” in my testimony that Mrs. Ledbetter “had waited more than five years after [you] learned of the discrimination to file [your] EEOC charge.”  Leahy invited Mrs. Ledbetter—who had testified on the panel before me—to respond to this “crude allegation” and to a related statement by fellow witness Robert Alt.  In her response (dated July 19), Mrs. Ledbetter states that if she had known that Alt and I “were going to use the hearings to attack me personally, I would have stayed around so they could do it to my face.”  She then states (among other things) that she “didn’t have any solid evidence, only suspicions,” that she was being paid less.  (Leahy’s letter and Ledbetter’s response are both available here.)

Several comments:

1.  Leahy is evidently trying to divert attention from my central point about the Ledbetter ruling—that Senator Cardin’s account of it, on which he based his vehement denunciation of the Court, utterly misreads the case. 

2.  What Leahy calls my “crude allegation” is a point that Stuart Taylor and others have made repeatedly since the Court’s ruling in Ledbetter in May 2007.  (See, e.g., Taylor’s June 2007 Atlantic article (“Ledbetter knew no later than 1992 that she was earning less than most male colleagues. But she waited to sue until July 1998, when she was ready to retire.”) as well as the article I cite in footnote 7.)  Mrs. Ledbetter and her defenders had ample opportunity to dispute that point.  So far as I’m aware, they hadn’t done so.

Now, if it turns out that I’m wrong on this minor side point (which I’ve never independently explored), I’d be happy to correct the record.  But I hardly think that it’s fair for Leahy to call the previously uncontested proposition, with supporting citation, a “crude allegation,” or for Mrs. Ledbetter to claim that I was attacking her personally.

3.  Mrs. Ledbetter’s response seems inconsistent with her sworn testimony to the committee in some respects.  In an exchange with Senator Klobuchar, Mrs. Ledbetter stated (emphasis added):

I only learned about the discrepancy in my pay after 19 years, and that was with someone leaving me an anonymous note. Because otherwise, I would not have known, because Goodyear prohibited each one of us from ever discussing our pay or we would not work there. So our pay was never discussed and we could not find out. And that was the only way I had to find out.

But in her letter to Leahy, Mrs. Ledbetter states (emphasis added):

It is true, as I’ve testified in Congress before, that for some time I had suspected that I was getting paid less than the men. I knew, for example, that my pay was below the midpoint in the salary range. But in a part of the deposition that maybe the witnesses [Whelan and Alt] didn’t read, I also explained that when I told my manager I thought I was getting paid less than my peers, he told me I was being misled by the men exaggerating their pay.

4.  I find it amusing that Mrs. Ledbetter complains that I didn’t present my account “to [her] face.”  For what it’s worth, when I was first informed of the hearing panels, I was told that I would be on the same panel as Mrs. Ledbetter.  I submitted my testimony more than 30 hours in advance of the panel and highlighted it on Bench Memos, so committee staffers had ample time to know what I would say.  It was only after all the testimony was due that Leahy and his staffers did a bizarre reshuffling of the panels that resulted in adverse witnesses on topics not being on the same panel.  I can’t prove it, but I suspected at the time that Leahy and his staffers did the reshuffling (at least in part) to protect Mrs. Ledbetter from facing witnesses who would expose her mischaracterizations of the Ledbetter case.

There were some genuinely crude allegations that were made during the Kagan hearing—the reckless attacks by Senate Democrats about the Roberts Court.  Don’t let Leahy’s diversion on Ledbetter obscure that fact.

In his Washington Post column today, David Broder speculates that Elena Kagan’s “joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees.”  He bases his speculation on extrapolating from how the increasing numbers of female reporters and editors changed the Post’s newsroom in the 1970s and 1980s.  I question whether his extrapolation makes sense.  Among other things, parodies aside, it’s difficult to see how the internal culture of the Supreme Court today has much in common with the culture of the 1960s press corps, and all of the male justices have long been accustomed to deal with women as peers.

Broder’s speculation, however, provides a good opportunity for me to highlight one of the many surprising accounts in Seth Stern’s and Stephen Wermiel’s forthcoming biography of Justice Brennan (titled Justice Brennan:  Liberal Champion), which I have read in advance copy.  (See my recent post about Brennan’s disappointment with Justice Thurgood Marshall’s performance on the Court.)  Stern and Wermiel discuss at some length Brennan’s longtime opposition to hiring female law clerks and, more briefly but perhaps even more remarkably, his unwillingness to have a woman justice as a colleague.  Here’s one striking passage (p. 388 (emphasis added)):

Brennan confided to his clerks over coffee during the 1968-69 term that he worried about having to watch what he said if a woman clerk worked in his chambers.  He did not feel he could have the same sort of relaxed rapport with a female clerk or colleague.  If a woman ever got nominated to the Court, Brennan predicted, he might have to resign.  “It’s a strange kind of sexism,” his friend Abner Mikva later observed.  “He had [women] on such a pedestal he couldn’t have their ears sullied by four-letter words.”

Stern and Wermiel recount the effort in 1970 by two of Brennan’s former law clerks, then professors at Berkeley, to have Brennan interview their prize student, Alison Grey, who had been first in her class:

[W]hen one of the professors called Brennan to offer their recommendation, he did not get much beyond saying Grey’s first name before Brennan cut him off.  “Send me someone else,” Brennan said, making it perfectly clear that he meant a male clerk.  [p. 386]

Similarly:

When Yale Law School dean Louis Pollak wrote him in September 1966 to say that he would begin looking for “the appropriate young man (or woman)” as his clerk, Brennan replied, “While I am for equal rights for women, I think my prejudices are still for the male.”  [pp. 386-387]

In late 1973, one of the Berkeley law professors again recommended a top-ranked female student, Marsha Berzon (now a Ninth Circuit judge):

As with Grey, Brennan rejected Berzon on the basis of her gender alone.  Without offering any explanation, he once again requested [that the professor] recommend a male candidate instead.  [p. 399]

This time, though, the professor persisted, writing to Brennan about (in Stern’s and Wermiel’s paraphrase) “how at odds Brennan’s policy was with his own principles.”  Brennan changed course and hired Berzon.  [pp. 400-401]  Nonetheless:

However smoothly Berzon’s clerkship might have gone, another seven terms would pass before he hired another woman clerk.  Brennan later blamed that on a lack of female candidates being recommended to him.  “Believe me, it ain’t for gender-discrimination reasons,” he insisted.  [p. 406]

Stern and Wermiel also find that Brennan compared poorly to many of his colleagues on this score:

It took Brennan longer to wake up than many of his colleagues.  Between 1973 and 1980, thirty-four women served as Supreme Court clerks.  Brennan employed just one of them.  [p. 406]

2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit.  Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005.  Saad, never confirmed, finally withdraws his nomination in March 2006.

While I’m at it, I’d just like to highlight this woefully confused comment by Senator Graham at yesterday’s markup on Kagan:

But at the end of the day, the hearings are important. They give you an opportunity to evaluate the nominee, but there are certain things that you can’t comment on. I mean, if you think that same-sex marriage is prohibited by the Constitution, I doubt if this is the place you would say it, since that’s probably what you’re going to have to decide sooner rather than later.

The constitutional argument over same-sex marriage is between those, on the one hand, who contend that the Constitution should be read as conferring a constitutional right to same-sex marriage and those, on the other, who maintain that the Constitution is silent on the matter and that the people of the various states are therefore free to choose whether or not to redefine marriage through the democratic processes to encompass same-sex relationships.  So far as I am aware, no one anywhere is pressing in the courts the contention that Graham imagines—that “same-sex marriage is prohibited by the Constitution.”  And even if someone somewhere is doing so, it’s farfetched that that the Supreme Court will ever “have to decide” that issue (and it’s a very safe bet that no justices would conclude that “same-sex marriage is prohibited by the Constitution”).

Graham has just given his support to a Supreme Court nominee who is a predictable vote in favor of inventing a federal constitutional right to same-sex marriage—and who may well provide the decisive fifth vote in favor of that radical redefinition of marriage.  Does he really not understand the legal issue at stake?  Or is he trying to bamboozle the public?

Continuing my observations (from my Part 1 post) on Dana Milbank’s wild praise for Senator Lindsey Graham:

2.  It’s certainly Graham’s prerogative to adopt a position of extensive deference to presidential nominations of Supreme Court justices and to urge his colleagues to do the same.  But beyond the fact that he shouldn’t pretend that his position is compelled by the Constitution, he also shouldn’t harbor—or try to foster—any illusions that his position is going to persuade any of the committee Democrats.  As I’ve previously explained, it’s utter folly to imagine that a strategy of unilateral disarmament is somehow going to lead to a practice of bipartisan deference to a president’s Supreme Court picks. 

Milbank reports that Democrat Dick Durbin “took Graham’s words to heart”:

“During the course of his statement,” [Durbin] said, “I reflected on some of the things that I have said and how I’ve voted in the past and thought that perhaps his statement suggested there was a better course for many of us to consider in the future.” 

Gee, I wonder whether the arch-partisan Durbin—who not only voted against both Roberts and Alito but also voted to filibuster the Alito nomination—was just pandering to Graham.  That’s a tough call, don’t you think?

It’s touching that Milbank is so smitten by Graham that he now gives the impression that he thinks that Graham’s position of deference is correct.  But I’ve uncovered no signs that Milbank had that view when the nominees were John Roberts and Samuel Alito.  And I’d be willing to bet that he won’t hold it the next time there’s a Supreme Court nominee who’s perceived to be conservative.

3.  Milbank elevates Graham by smearing his Republican colleagues.  Milbank contends that Senators Kyl, Cornyn, and Coburn “showed their contempt for President Obama and his nominee by skipping the vote” and instead having their votes cast by proxy.  What Milbank doesn’t disclose is that the markup session took nearly three hours; that Kyl, Cornyn, and Coburn attended much of it (and that Kyl and Cornyn were able to present their reasons for their vote); and that Democratic senators Feinstein and Durbin also missed the vote and had their votes cast by proxy. 

Further, Kyl, Cornyn, and Coburn—and Republican senators generally—have treated Kagan far more respectfully than Democratic senators treated Alito.  It’s nasty and baseless for Milbank to allege that their voting by proxy somehow “showed their contempt” for Obama and Kagan.

It’s hardly a surprise that Senator Lindsey Graham’s decision to vote in favor of Elena Kagan’s nomination to the Supreme Court would elicit fawning praise from the Left (just as his decision last year to vote in favor of the Sotomayor nomination did).  But Dana Milbank’s love letter to Graham in his Washington Post column today is beyond embarrassing.

According to Milbank, Graham “towers above his Senate Republican colleagues,” who “have become so reflexive in their opposition to Obama that they are distorting their constitutional duties.”  How, you might wonder, are Republicans who vote against Kagan “distorting their constitutional duties”?  It’s quite simple, in Milbank’s view:

“I think there’s a good reason for a conservative to vote yes, and that’s provided in the Constitution itself,” Graham told his peers before reading to them from Federalist No. 6, by Alexander Hamilton. “The Senate should have a special and strong reason for the denial of confirmation,”* he read, such as “to prevent the appointment of unfit characters from family connection, from personal attachment and from a view to popularity.”

Graham said Kagan “has passed all those tests” envisioned by the Framers….

Milbank also lauds “Graham’s penetrating indictment of the tribal logic that has overtaken his colleagues.”  That “penetrating indictment” apparently consists largely of Graham’s assertion that “our obligation to honor elections” requires voting in favor of Kagan.

A few observations (in this post and a follow-on):

1.  If Milbank had troubled himself to examine the passage from the Federalist papers that he and Graham imagine is so compelling, he would have discovered that Graham was referring to (and misquoting from) Federalist No. 76, not Federalist No. 6.  (The transcript reveals that the original error was Graham’s.)  More importantly, that passage can’t remotely bear the meaning that Graham would impose on it.  Hamilton is explaining in Federalist No. 76 why it is proper for the Constitution to confer on the president the power of nominating officers of the United States generally.  In that context, he predicts that the Senate would not often reject presidential nominations because it would not have much of an incentive to do so:

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, where there were not special and strong reasons for the refusal.

Hamilton then explains that the Senate’s role in confirming nominees is nonetheless valuable:

It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.

It is simply absurd to read these passages as setting forth Hamilton’s supposed view that senators, in voting on a Supreme Court nomination, shouldn’t consider whether the nominee has a sound judicial philosophy and a sound understanding of the Constitution.  These passages don’t remotely speak to that matter.  Moreover, in Federalist No. 78, in the very context of justifying the power of judicial review, Hamilton famously states:

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.… The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

This passage strongly indicates that Hamilton would think it entirely proper, if not obligatory, for a senator to vote against a judicial nominee who he believed was “disposed to exercise WILL instead of JUDGMENT.”  (And how could it not be?)

In sum, Graham utterly fails to make the case that his position of extensive deference to a president’s nomination of a Supreme Court justice is somehow constitutionally compelled.

More in Part II post.

* Update:  As Ramesh Ponnuru emphasizes (and as the careful reader would discern from the excerpt from Federalist No. 76), Hamilton didn’t in fact write what Milbank says Graham says Hamilton wrote.  I’ve tweaked the first sentence of point 1 to make that clearer.

As expected, Senator Lindsey Graham joined the 12 Democrats on the Judiciary Committee in voting to report Elena Kagan’s nomination favorably to the Senate floor.  So the overall tally was 13-6.

As JCN has noted and several senators have highlighted, Elena Kagan’s answers thus far regarding recusal have left many open questions, including this important one: If confirmed, would she consider herself eligible to sit on the case in which 21 states are challenging Congress’s constitutional authority to require citizens to buy health care? It’s the kind of high-profile case that is usually discussed at top-level DOJ meetings (which the solicitor general regularly attends), even though it is still at the district court stage.

Last week Tuesday, the senators on the Judiciary Committee submitted additional questions asking Kagan to clarify her role in the litigation — important information, since, if she expressed opinions or gave advice about litigation strategy or legal arguments, federal law would require her recusal from the case at the Supreme Court. Once a justice is sitting on the court, recusal decisions become hers alone, and without knowing more facts about the situation, the public would be unable to judge whether Kagan was properly recusing herself or acting unethically.

Kagan finally responded yesterday afternoon, basically denying that she ever expressed any opinion whatsoever on any litigation or potential litigation coming out of the health-care bill. This is a truly amazing response from a Washington lawyer, particularly from one who stated at her confirmation hearings that her only real “passion” is the law. As op-eds and editorials were flying and talking heads were, well, talking, Elena Kagan was mute. She did admit being at “at least one meeting where the existence of the litigation was briefly mentioned” but no substantive discussion took place. Unfortunately, we are left with her interpretation of what constitutes “substantive” discussion.

The utter implausibility of the idea that she never discussed of any issues surrounding health care is mitigated only by the calculated way she has approached her career thus far. Not only did she manage to studiously avoid making any statements of opinion in her academic career up to this point, she began avoiding litigation that might eventually make it to the Court well before she was nominated. Although she claimed she carried on in her solicitor general’s duties as usual until she was actually nominated, she stopped attending the attorney general’s morning meetings in “early-to-mid April” and did not involve herself in any new litigation. Apparently she knew what the Los Angeles Times later confirmed: “Her mission is to help uphold the laws that Obama and Democrats are pushing through Congress.” Risking a recusal on Obamacare would have put her own nomination in jeopardy — why would the president appoint someone to uphold his agenda who couldn’t sit on one of its key cases?

Kagan waited six days after the senators’ relatively simple request, and within 24 hours of her committee vote (scheduled for this morning), to respond. The delay in her responses suggests that Kagan, the White House, and Senator Leahy are not taking this process seriously, and instead are cooperating to push her vote through as quickly as possible. This has been a repeated strategy of the current administration and Congress, with health care, the stimulus bills, and now a Supreme Court nominee. They neither want the votes hanging out long enough to allow detailed criticism nor do they want to be casting their votes within earshot of the November elections. Apparently the Democrats aren’t confident enough in their own choices to allow them to stand up to scrutiny from the constituents who elected them.

The Supreme Court confirmation hearings for Elena Kagan provided key exchanges about the Commerce Clause, natural rights, and other issues that have convinced me to vote against her nomination. Based on her own testimony, she’ll violate her oath as soon as she’s sworn in.

The hearings, though, were not merely about Elena Kagan per se but about the political culture and philosophy that shaped her views. Her answers exposed profound flaws in the prevailing Big Government wisdom of the Supreme Court and Washington over the past few decades.

When I asked Kagan whether the Constitution gave Congress the authority to tell people to eat their fruits and vegetables, she answered with appropriate humor. “That would be a dumb law,” she quipped. True enough. Her response was humorous because the underlying premise is absurd both as a matter of common sense and law. Of course, Kagan and everyone else knew I was asking a proxy question about the new health law’s individual mandate and the founder’s intent regarding the Commerce Clause.

What is less humorous is the fact that as a Supreme Court justice, she would signal that Congress does in fact have the right to tell people what to eat and, by implication, whether to buy health insurance. With Kagan on the Court, Congress and the executive branch may succeed at sweeping away whatever limitations remain on its power to micromanage the decisions of states and individuals.

In her testimony, it was clear that Kagan subscribes to the progressive view that the wrongly decided precedents of the Supreme Court are more important the clear intent of the Constitution. Does anyone seriously believe that when the Founders gathered in Philadelphia 220 years ago they were aspiring to control the buying decisions of individual consumers from Washington? They were arguing for the opposite and implored future Courts to slap down any law from Congress that expanded the Commerce Clause.

In “Federalist Paper 45,” James Madison wrote: “The powers delegated by the proposed Constitution to the Federal Government are few and defined.” The Supreme Court has repeatedly turned a blind eye when Congress exceeded its authority under the Commerce Clause. As a result, the federal government can control practically every aspect of our lives. For instance, in the 1942 case Wickard v. Filburn, the Supreme Court decided that a farmer in Ohio, Roscoe Filburn, had to cease growing wheat to feed his chicken because he didn’t have permission from Congress. As a matter of law, we aren’t far from regulating American’s eating habits.

Kagan refused to answer the substance of my question. Her answers indicated she would support the big-government policies that created our $13 trillion debt and the welfare state that is collapsing into a fiscal black hole.

Even more troubling was Kagan’s refusal to say whether she believed in the principle of natural rights contained in the Declaration of Independence. Kagan told me, “I don’t have a view of what are natural rights independent of the Constitution.”

While I understand a nominee’s reluctance to express personal beliefs, it was extraordinary to hear a Supreme Court nominee decline to endorse the concept of natural rights contained in the Declaration of Independence that is the very basis of our Constitution.

Kagan’s answer exposed a troubling train of thought in progressive ideology. Refusing to acknowledge natural or God-given rights removes the morality from the progressive’s moral certitude. Without natural law there would have been no Constitution. Without natural law, “progressives” would take us back to the 17th century, when rights emanated from the state or the king rather than the creator.

Kagan made a number of statements that concerned me such as her statement that Justices can get “good ideas” on how to approach legal issues from the decisions of foreign courts. Instead of looking toward foreign courts for inspiration, Kagan, and more importantly the country, would be wise to look at the United States Constitution. With Kagan on the Court the chances are slim that the Supreme Court will rein in Congress and throw away years of expansive precedents that have nearly destroyed the Constitution. Our only hope is where it has always been in our system — with “We the People” and our willingness to elect leaders who will rediscover and apply the constitutional principles that made our government limited, and our country great.

1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement.  As Jan Crawford Greenburg describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.…  It was that rare moment when a conservative president was positioned to replace a liberal giant.…  It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.”  But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.”  Five days later President Bush nominates … David H. Souter to fill Brennan’s seat.

2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.”  Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

West Virginia governor Joe Manchin has appointed lawyer Carte Goodwin to replace Sen. Robert Byrd. K-Lo has asked, “Who is Carte Goodwin?” noting that very little is known about him.

In addition to being a former Manchin aide, Goodwin was chair of the West Virginia Independent Commission on Judicial Reform, a commission created by Manchin to make recommendations regarding the state’s judiciary. (If you want a better sense for the political goals of the commission, I would note that the “honorary” chair of the same commission was retired Justice Sandra Day O’Connor.)

The Commission made a number of recommendations that should concern supporters of the First Amendment and an independent judiciary. For instance, according to its final report on the selection of judges in West Virginia, the commission stated that it was “mindful of the controversy surrounding the debate between the election and appointment of judges” — or, more precisely, the debate between so-called merit selection and elections — but that it was “this controversy that led the Commission to conclude that the Legislature should take advantage of this rare opportunity to explore the efficacy of merit selection.” Their essential conclusions were in keeping with a national campaign to take away the right of citizens to elect members of the judiciary.

As the Wall Street Journal has ably explained on numerous occasions, a coalition of special interest groups primarily funded by George Soros has been engaged in a national campaign to drastically limit political speech in judicial elections, or abolish elections entirely and replace them with “merit” selection. “Merit” selection is the trial bar’s preferred form of judicial selection, and it is no surprise, in light of compelling evidence that it tilts state judiciaries to the left. According to the Journal, Vanderbilt Law Professor Brian Fitzpatrick found that, “Since 1995 in Tennessee, 67% of appellate nominees more often voted in Democratic primaries, compared to 33% who voted more often in Republican primaries.”

JCN will have more to say about judicial selection in the states in the coming months.  For now, suffice it to say that we hope Goodwin was a voice of reason on that issue rather than a pawn for Soros and the trial bar.

– Gary Marx is Executive Director of the Judicial Crisis Network