Yesterday’s Washington Post carried an essay by Lincoln Caplan on the filibuster wars. There was hardly a paragraph with which I agreed.
1) Caplan has Ed Meese, in 1985, attacking “the concept of judicial review, a tenet of the American legal system since 1803.” “To Meese, the Supreme Court’s interpretations did ‘not establish a ’supreme Law of the Land.’ He asserted that officials of the Reagan administration were free to rely on their own views as authority for the meaning of the law.” There is an element of truth to Caplan’s description: Meese did indeed deny that the Supreme Court’s constitutional interpretations were the same thing as the Constitution and, as such, did indeed deny that they were the “supreme Law of the Land.” But Meese certainly did not make an explicit attack on “judicial review” or Marbury v. Madison (1803)–indeed, he presented himself as a supporter who wished to correct common misunderstandings. Caplan’s description of Meese is thus essentially false.
2) Caplan moves immediately from Meese to a discussion of Richard Posner’s 1985 book The Federal Courts. I have not read the book, but I am highly skeptical of Caplan’s treatment of it (my suspicions raised by his treatment of Meese). Posner, Caplan writes, “argued that it would be ‘restrained’ of the court to overturn” Marbury. “Posner was well aware of the far-reaching nature of his argument. He wrote that ‘A decision overruling Marbury v. Madison would be pretty wild stuff, but it would be self-restrained in my terminology because it would reduce the power of the federal courts vis-a-vis the other organs of government.’” The effect of Caplan’s discussion of Posner, which is put in the context of a conservative campaign against the courts (Robert Bork was “a martyr for the cause heralded by Meese and Posner”), is to imply that Posner was advocating the overruling of Marbury. It is not obvious from the quoted material that he was. Posner could merely have been elaborating on a taxonomy which he had constructed in the book for some other purpose. Certainly in other (and more recent) writings Posner has seemed highly appreciative of Marbury and hostile to a “popular constitutionalism.”
3) “Meanwhile the legal right is increasingly divided between those who practice what the politicians preach and others keen to pursue their own agendas through the courts. Some, like Stanley Birch, adhere to traditional concepts of judicial restraint. Others, including Justices Antonin Scalia and Clarence Thomas, in the name of applying what they regard as the original intent of the Constitution’s framers, have no compunction about aggressively striking down acts of Congress in ways that conservatives once called activist.” Birch is the guy who declared that the congressional act in the Schiavo case was unconstitutional. I’m sure there are all kinds of interesting divisions among legal conservatives, but this won’t do. If Thomas and Scalia are one type of conservative because they strike down laws, how does this differentiate them from Birch, who struck down the Schiavo law? The distinction would appear to reside in the words “in ways that conservatives once called activist.” If there are any thoughts that are supposed to lie behind those words, Caplan does not see fit to reveal them. He’s not shedding any light on anything.
4) This one’s a doozy: “The Democratic minority is defending the filibuster because, as seldom as its members say they expect to use it, they see it as a way of ensuring that no one will be given life tenure who is unworthy of judicial independence–who can’t be counted on to make impartial rulings or, when necessary, to check the excesses of the political branches. . . . [W]hile it’s bizarre to have an argument so fundamental turn on a fight over a procedural maneuver, the Democrats have the better of the disagreement from the viewpoint of the American system. The law is the compact between the people and our representatives. Sometimes it is judges who must say what that is, despite what the political branches have declared. That’s the essence of judicial review and, without it, our system would be radically different. Because we count on judges’ impartiality in making their rulings, Democrats are standing up for democracy in fighting to keep the filibuster. In the war over the courts, they recognize that it’s a tool for ensuring that the president’s nominees are worthy of life tenure — especially when Republicans insist on their right to pick judges because of ideology.”
So: because some conservatives allegedly dislike judicial review, and other conservatives allegedly like it too much, conservative judicial nominees cannot be impartial. And because they can’t be impartial, we have to have a filibuster. Note that there isn’t much of an attempt to establish that the use of the filibuster has any necessary connection to the preservation of judicial independence: Caplan isn’t arguing that it would be impossible to use the filibuster to block the confirmation of judges who would be impartial. Of course it would be possible to use the filibuster for this purpose. The judicial filibuster as such is neutral with respect to what sort of judges turn out. The only possible argument that Caplan can be making is this: Republican judges are likely to be bad, so the Democrats deserve to win. In four years’ time, if there’s a Democratic president, he can switch sides.
Note also that Caplan is taking an absurdly negative view of Republican judicial nominees (they’re supposedly all either foes of Marbury or Richard Epstein clones) while also taking an absurdly positive one of Democratic politicians (they’re supposedly deeply concerned that Republican nominees aren’t impartial, and they never pick judges based on ideology, Clinton’s and Kerry’s announced litmus tests on Roe notwithstanding).
There is no more substance to this essay than if Caplan had said, “I prefer Democrats to Republicans and therefore want them to win the political struggles over the judiciary.” He could have saved the Post some space. Caplan, incidentally, is “the editor and president of Legal Affairs magazine and the Knight Senior Journalist at Yale Law School.”