Bench Memos

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More Questions About Questions


Robert Alt finds an opinion he attributes to me “incredible.” He ascribes to me the position that senators must ask questions about specific pending cases, or they fail to do their constitutional duty under the Article I “advise and consent” clause. But that is not my position. My position–as staked out in a couple of posts last week–is that a senator who knows nothing definite about what a nominee thinks the Constitution says about secularism, abortion, and same-sex marriage should not consent to that nominee’s appointment. How could “consent” in such a state of ignorance be squared with a senator’s duty to uphold the Constitution which, by my hypothesis, has been grossly distorted on these matters by the Court? How would “consent” in this state of ignorance be conscientious?

My post in response to an intervention by Ramesh makes especially clear that my position is not that senators must ask about specific cases, pending or otherwise. My position has to do with what a senator needs to know to do his job. Mine is a position about what information is needed to make a conscientious decision, a decision which the Constitution charges a senator to make. As I said in response to Ramesh: Consider a nominee whose views on secularism, abortion, same-sex marriage and the Constitution are crystal clear coming into hearing. Consider, I said, a nominee such as I. A conscientious senator could vote me up or down without any hearings at all.

I do think that broad questioning of a nominee less notorious than I may be needed for a senator to discharge his or her constitutional responsibility. If it is needed, the senator should ask. Robert Alt may agree with me here so long as questions about “specific cases” are avoided. Maybe Robert even agrees with me that senators may (should?) be seeking to learn from a nominee through broad, but not case-specific questioning, what I think needs to known before consenting–the Constitution and secularism, etc. If so, the remaining issues between us may be too insignificant to debate in a public forum.

Just in case, though, I should like to respond to a few points Robert makes against what he takes to be my position.

One is his claim that “grilling” nominees has a short history, going back (he says) no further than Brown v. Board of Education. I grant this point, but I do not see what difference it makes. I never argued for broad questioning on the basis of historical practice. I do not know anyone who has. Robert does not seem to suggest that the pre-Brown practice sets a constitutionally required standard for senators. (It does not.)

Maybe perfunctory hearings were not a good idea even back when senators
thought they were. A few years after Brown senators chose to ask little of two Republicans nominees to the Supreme Court sent up by Eisenhower. These two men sailed through the Senate. I wish they had not. In fact, Ike later wished that they had not; he regretted their appointment to the Court. But each had political/demographic credentials which made them attractive to Ike; in one case, the nominee’s religion was his central qualification. These men were Charles Whittaker, as undistinguished a justice as ever sat on the Court, and a man whose nervous system was broken by the work. The other man filled the “Catholic seat” on the Court. His name was William Brennan.

For that matter, Ike regretted his first high court appointment, another man whose political credentials got him the him the job. His name was Earl Warren.

Robert thinks it is “tad peculiar” for conservatives to rely upon a times-have-changed argument. I cannot imagine why he should find it so. Times do change. “Conservatives” along with everyone else have to deal with it. Robert himself recognizes that times have changed; at least, he seems to agree that the Court has become “politicized” in new and important ways. Indeed it has. I do not think anything in “conservatism” holds that appointments to a regrettably politicized institution must not be made with that (regrettable) fact in mind. Indeed, my main point is that the Court has gone well beyond and even against the Constitution on important matters, and that we want to know whether a nominee will bring back the Constitution. If that is too “political” (or something) for Robert, so much the worse for him.

Here are two of the many changes since around 1950 that warrant stricter scrutiny of a Supreme Court nominee. One is “incorporation” of the Bill of Rights in a series of cases culminating in the 1960’s criminal procedure revolution. (Miranda and all that.) “Incorporation” put the Supreme Court in charge across the country of church-state, law enforcement, trial practice, and a host of other matters theretofore reserved to the states. “Incorporation” has resulted in massive bodies of detailed regulation, all under the heading of broad constitutional phrases such as “unreasonable search and seizure”–practically, a common law of search and seizure, of confessions, of “separation” of church and state, etc. These bodies of law include lots of balancing tests and calls about reasonableness and rationality that rest, in part, upon value and policy judgments of the courts. Why not ask then what policies and values a nominee favors?

Two: The role of political parties in American history has been such that much of what senators would want to know about a nominee was conveyed summarily by his party affiliation. If a Republican president nominated a Republican stalwart to the Court in, say, the late nineteenth century, and you knew pretty much what you are getting. The practice since abandoned of nominating leading “public men” to the bench–and not nearly so many sitting judges–contributed to effective shorthand communication. Republican president nominates a sitting Republican judge to the bench in the late twentieth century, and you get . . . David Souter.

Robert says that the “real concern” should be whether a judge views the Court as another “political or legislative body.” I think he means for senators to act as if it were not, no matter what has been happening for, say, 50 years on the Court. Well, okay, I guess. But how much work is this concept going to do now?

What does it mean to say that someone is fit for the Court so long as he views it not as “a political or legislative body”? Some law professors and columnists speak approvingly (i.e., prescriptively) of the Court as a “political” or “legislative” body. They are not going to be nominated to the Court. But fewer and fewer do: We are all “originalists” and “interpetivists” now, they say. And they say this, too: Reversing Roe now would be a “political” act; the wise judicial statesman stays the course, as three Republican appointees told us in Planned Parenthood v. Casey.

On the other hand, many law professors and columnists describe the Court these last few decades as behaving in a “political” or “legislative”
way. They are right. But even these folks (and Roberts may be one of
them) are going to be very reluctant to identify at hearings any particular binding precedent as “political” or “legislative.” To do so would signal a firm intention to overrule, and this would violate some people’s idea (not
mine) of proper hearings etiquette. Besides, to identify a particular piece of settled law as “legislative” or “political” is to invite an avalanche of further questions about what, exactly, distinguishes sound interpretation from judicial legislation. Again, that is not where a nominee is going to want to go.


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