[Senate Hearing 107-463]
[From the U.S. Government Publishing Office]
S. Hrg. 107-463
THE JUDICIAL NOMINATION AND CONFIRMATION PROCESS
=======================================================================
HEARINGS
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JUNE 26 AND SEPTEMBER 4, 2001
__________
Serial No. J-107-28
__________
Printed for the use of the Committee on the Judiciary
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79-825 WASHINGTON : 2002
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
------
Subcommittee on Administrative Oversight and the Courts
CHARLES E. SCHUMER, New York, Chairman
PATRICK J. LEAHY, Vermont JEFF SESSIONS, Alabama
EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
RICHARD J. DURBIN, Illinois ARLEN SPECTER, Pennsylvania
Benjamin Lawsky, Majority Chief Counsel
Ed Haden, Minority Chief Counsel
C O N T E N T S
----------
TUESDAY, JUNE 26, 2001
STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 20
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 87
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 11
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 243
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 29
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 257
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 13
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 14
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 4
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 267
WITNESSES
Bolick, Clint, Legislative Director, Institute for Justice,
Washington, D.C................................................ 82
Cutler, Lloyd N., former White House Counsel, and Co-Chair,
Constitution Project's Courts Initiative, Washington, D.C...... 22
Gray, C. Boyden, former White House Counsel, Washington, D.C..... 26
Greenberger, Marcia D., Co-President, National Women's Law
Center, Washington, D.C........................................ 71
Presser, Stephen B., Raoul Berger Professor of Legal History,
Northwestern University School of Law, Chicago, Illinois....... 49
Sunstein, Cass R., Karl N. Llewellyn Distinguished Service
Professor of Jurisprudence, University of Chicago Law School
and Department of Political Science, Chicago, Illinois......... 57
Tribe, Laurence H., Tyler Professor of Constitutional Law,
Harvard Law School, Cambridge, Massachusetts................... 39
Volokh, Eugene, Professor of Law, University of California at Los
Angeles, Los Angeles, California............................... 67
TUESDAY, SEPTEMBER 4, 2001
STATEMENTS OF COMMITTEE MEMBERS
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 149
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 144
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 157
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 152
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 111
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 114
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 151
WITNESSES
Kmiec, Douglas W., Dean and Professor of Law, Catholic University
of America, Washington, D.C.................................... 191
Levinson, Sanford, Professor of Law, University of Texas Law
School, Austin, Texas.......................................... 162
Resnik, Judith, Professor of Law, Yale Law School, New Haven,
Connecticut.................................................... 179
Rotunda, Ronald D., Professor of Law, University of Illinois
College of Law, Champaign, Illinois............................ 169
Simon, Hon. Paul, former U.S. Senator from the State of Illinois. 134
Thompson, Hon. Fred, a U.S. Senator from the State of Tennessee.. 137
Tushnet, Mark, Professor of Law, Georgetown University Law
Center, Washington, D.C........................................ 198
------
QUESTIONS AND ANSWERS
Responses of Stephen B. Presser to questions submitted by Senator
Thurmond....................................................... 218
Response of Cass R. Sunstein to a question submitted by Senator
Sessions....................................................... 219
SUBMISSIONS FOR THE RECORD
American Center of Law and Justice, Washington, D.C., statement.. 219
BeVier, Professor of Law, University of Virginia Law School,
Charlottsville, VA, statement.................................. 224
Boyle, Patrick, Detective, Philadelphia Police Department,
Philadelphia, PA, statement.................................... 228
Califano, Joseph A., Jr., Washington Post, August 31, 2001,
article........................................................ 229
Cass, Ronald A., Dean, Boston University School of Law, Boston,
MA, statement.................................................. 230
Center for Judicial Accountability, Inc., White Plains, NY,
statement...................................................... 235
Jipping, Thomas L., Director, Judicial Selection Monitoring
Project, Free Congress Research & Education Foundation,
Washington, D.C.:
letter and attachment........................................ 244
article, Washington Times, June 26, 2001..................... 255
statement.................................................... 256
Litt, Robert S., former Assistant Attorney General, Criminal
Division, Department of Justice, Washington, DC, statement..... 258
McGinnis, John O., Professor, Benjamin N. Cardozo School of Law,
New York, NY, statement........................................ 260
People for the American Way Foundation, Elliot M. Minchberg,
General Counsel and Vice-President, July 3, 2001, letter....... 264
Pilon, Roger, Vice President for Legal Affairs, Cato Institute,
September 4, 2001, National Review, article.................... 265
Strauss, Paul, Shadow U.S. Senator for the District of Columbia,
statement...................................................... 266
Tulis, Jeffrey K., Associate Professor, Department of Government,
University of Texas at Austin, Austin, Texas, June 22, 2001,
letter......................................................... 268
Yalof, David Alistair, Department of Political Science,
University of Connecticut, Storrs, CT, June 25, 2001, letter... 269
Young, Ernest A., Assistant Professor of Law, University of Texas
at Austin, Austin, Texas, statement............................ 272
JUDICIAL NOMINATIONS 2001:
SHOULD IDEOLOGY MATTER?
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TUESDAY, JUNE 26, 2001
U.S. Senate,
Subcommittee on Administrative Oversight and the
Courts,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:06 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Schumer, Chairman of the Subcommittee, presiding.
Present: Senators Schumer, Feingold, Durbin, Sessions,
Hatch, Kyl, Brownback, and McConnell.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Chairman Schumer. Good morning, everybody. The Subcommittee
will come to order.
I will make an opening statement, so will Senator Sessions
and any other member who wishes to, and then we will go right
into our panel.
Today, for the first time in over a decade and for the
first time during the Bush presidency, we are formally
examining the judicial nominations process. This hearing is
specifically focused on the vital question of what role
ideology should play in the selection and confirmation of
judges. Let me start by saying that it is our intention to hold
a series of further hearings that will examine in detail
several other important issues related to the judicial
nominating process.
At this point, we plan to hold at least three more hearings
on the following issues: one, the proper role of the Senate in
the judicial confirmation process. What does the Constitution
mean by ``advise and consent,'' and historically how assertive
has the Senate's role been?
Two, what affirmative burdens should nominees bear in the
confirmation process to qualify themselves for lifetime
judicial appointments? The Senate process can be criticized for
being a search for disqualifications. We will examine whether
the burden should be shifted to the nominees to explain their
qualifications and views to justify why they would be valuable
additions to the bench.
And, three, the significance of the Supreme Court's recent
federalism decisions for the judicial selection process. Most
Americans probably do not realize what these cases curtailing
the powers of Congress mean for their everyday lives and
futures. We will try to make these somewhat esoteric and often
abstract decisions more real and more relevant for ordinary
citizens.
Today's hearing on ideology is a good place to start
because it will touch upon all of these issues and serve as the
beginning of the important dialog that we in the Senate should
be having before we proceed much further with nomination
hearings, and certainly before we embark on the consideration
of Supreme Court nominees.
First, I have read all the testimony submitted by our eight
witnesses and I have to say it is just excellent. I would
commend to every one of my colleagues who sit on this
Subcommittee or not to read them. There is a diversity of
opinion. It is all cross-cutting. It is not that all Democrats
or liberals are on one side and all conservatives or
Republicans on the other. Both sides of this issue, if it can
be called two-sided, present alluring arguments and certainly
underscore how difficult and how important the issue we are
wrestling with today is.
One thing is clear to me. The ideology of particular
nominees often plays a significant role in the confirmation
process. Unfortunately, knowing when and to what degree
ideology should be a factor for the Senate is far more obscure.
For whatever reason, possibly senatorial fears of being
labeled partisan, legitimate considerations of ideological
beliefs seem to have been driven underground. It is not that we
don't consider ideology; it is just that we don't talk about it
openly.
Unfortunately, this unwillingness to openly examine
ideology has sometimes led Senators who oppose a nominee to
seek out non-ideological disqualifying factors, like small
financial improprieties from long ago, to justify their
opposition. This, in turn, has led to an escalating war of
``gotcha'' politics that, in my judgment, has warped the
Senate's confirmation process and harmed the Senate's
reputation.
As many of you know, this was not always the Senate's
practice. During the first 100 years of the Republic, one out
of every four nominees to the Supreme Court was rejected by the
Senate, many for clear ideological reasons. George Washington's
appointment of John Rutledge to be Chief Justice and President
Polk's nomination of George Woodward are two early examples of
Senate rejection of nominees on purely ideological grounds.
The power of the Senate in the nominations process,
however, has been accordion-like, and from 1895 to 1967 only
one Supreme Court nominee was defeated. Since 1968, ideological
considerations have occasionally surfaced, most notably in the
Republican opposition to the Fortas nomination to be Chief
Justice and in Democratic opposition to the nomination of
Robert Bork. But since the Bork fight in 1987, ideology, while
still an important factor for the Senate, has primarily been
considered sub rosa, fostering a search for a nominee's
disqualifiers that are more personal and less substantive.
It is high time we returned to a more open and rational
consideration of ideology when we view nominees. Let's make our
confirmation process more honest, more clear, and hopefully
more legitimate in the eyes of the American people, and let's
be fair to the nominees the President selects.
If we do this, the knotty question we face is how dominant
factor should a nominee's ideology be in the Senate's
consideration. Historically, the role ideology played in past
confirmations has varied, but it seems to me that several
factors are relevant: first, the extent to which the President
himself makes his initial selections on the basis of a
particular ideology; second, the composition of the courts at
the time of the nomination; and, third, the political climate
of the day.
The Eisenhower presidency is instructive and shows how
these factors affect the Senate's confirmation process. First,
Eisenhower's selection criteria were non-ideological. He
brought the ABA into his selection process and sought
candidates with, as he put it, ``solid common sense,''
eschewing candidates with extreme legal or philosophical views.
Second, the balance of the courts was leftward in light of
20 years of Democratic appointments. In fact, when Eisenhower
took office, 4 out of every 5 Federal judges were Democrats.
Third, politically Eisenhower had a strong mandate, having
been elected overwhelmingly by majorities in both 1952 and
1956.
Thus, in a time when the courts had been filled with
Democrats, a split Senate had little cause to ideologically
oppose the non-political picks of an overwhelmingly popular
Republican President.
Today, the calculus is much different. President Bush
campaigned on a pledge to appoint judges of a particular
stripe, like Justices Scalia and Thomas. And the balance of the
courts, especially the Supreme Court, leans to the right.
Politically, the American people were divided in our recent
national elections, sending a message of moderation and
bipartisanship. This era, perhaps more than any other before,
calls out for collaboration between the President and the
Senate in judicial appointments. The ``advise'' in ``advise and
consent'' should play a new and more prominent role. It also
certainly justifies Senate opposition to judicial nominees
whose views fall outside the mainstream and have been selected
in an attempt to further tilt the courts in an ideological
direction.
Having one or even two Justices like Scalia and Thomas
might be legitimate because it provides the Court with a
particular view of constitutional jurisprudence. But having
four or five or nine Justices like them would skew the Court,
veering it far from the core values most Americans believe in.
The Constitution instructs the Senate to first advise the
President as to his choice of nominees and then to review and
decide whether to confirm the President's picks. As the
research of some of the witnesses we will hear today,
Professors Tribe and Sunstein, has forcefully revealed, the
debates of the Constitutional Convention suggest a fully shared
authority between the President and the Senate as to the
composition of the Supreme Court.
Let me conclude by saying that I and many of my colleagues
see the appointment of judges as the ultimate test of
bipartisanship. In electing two branches of our Government, the
country was split down the middle, leaving appointments to the
third branch as perhaps the defining indicator of the political
direction the country will take.
The President, of course, can choose to exercise his
nomination power however he sees fit. But if the President
sends countless nominees who are of particular ideological
caste, Democrats will likely exercise their constitutionally
given power to deny confirmation so that such nominees do not
reorient the direction of the Federal judiciary. But if the
President does not grossly inject ideological politics into his
selection criteria, neither will, nor should, the Senate.
Today, we are going to hear from two former White House
Counsels who spent years advising and recommending candidates
for the Federal bench in both Republican and Democratic
administrations. We will hear also from some of the brightest
legal academics around who have dedicated their careers to
studying judicial nominations and the way the Senate and
President handle them.
The issue we are discussing is not merely academic. As
yesterday's decision showed, there are many 5-4 splits on the
Court right now on fundamental issues of the day, including
most importantly the extent of power held by the Court's
coequal and democratically elected branches of Government.
We therefore begin this important inquiry. There will be a
range of discussion and opinion. As I say, when you read the
different testimonies, each view is alluring. I have laid out
mine because I believe we should bring everything above the
table, and I am starting right now by saying where I come from,
although I am open to be persuaded that I might be wrong.
Let me thank in advance our distinguished witnesses. WE are
very interested in hearing your testimony and engaging you on
these issues.
I also want to thank my colleague, Senator Sessions. I am
going to turn to him for his opening statement, but first I
want to thank him up front for making this a fully bipartisan
hearing, with equal numbers of witnesses chosen by each side.
He and his staff are a pleasure to work with, and I look
forward to holding future hearings in the same bipartisan
manner.
Senator Sessions?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I do appreciate
the opportunity to be here, and thank you for working with us
to coordinate this hearing. I think you and your staff have
been most gracious. We have an equal number of witnesses. You
couldn't be fairer about that, and I hope that we can make some
progress as we discuss these issues.
Frankly, I hadn't heard that kind of talk about evaluating
the judges so aggressively in the last 6 years. We do have an
evenly divided Senate, but remember just a few years ago there
were 55 Republicans and Clinton judges were moved forward on a
steady pace. There were 377 confirmed and only one voted down.
There were only 41 Clinton nominees left pending when he left
office, and unconfirmed, I think a record far superior to that
of when President Bush left office and he had a Democratic
Senate.
So I think there is a myth out there that somehow Clinton
judges were mistreated. And building on that myth is an idea
that now is the time for either a new standard or an open,
aggressive assault on Bush judges. I think that would be a
mistake.
The constitutional process of confirming judicial nominees
is one of our important duties in the Senate. I take it
seriously. It is part of the advice and consent process.
Article II, section 2, clause 2 of the Constitution provides
that the President ``shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint...Judges of the
supreme Court, and all other Officers of the United States...''
The President decides who to nominate and the Senate renders
advice and decides who to confirm.
Using those basic ground rules, Presidents and Senates have
worked together for over 200 years to appoint a sufficient
number of Federal judges to try the people's cases in Federal
courts. President Reagan, with 6 years of a Senate of his own
party, appointed a record 382 judges. President Clinton, with 6
years of a Senate of a party not his own, appointed the second
greatest number, 377.
While the President has traditionally been accorded great
deference in selecting his nominees, the Senate is not a rubber
stamp. Indeed, we have a duty to assess at least a nominee's
integrity, qualifications, temperament, ability, and other
factors that are important.
Throughout my tenure in the Senate, I have been impressed
with the manner in which the former Chairman of this committee,
Senator Hatch, guided the judicial assessment process. He
elevated the committee's judicial nominations hearings above
partisan and personal attacks. He examined each nominee's
integrity, qualifications, temperament, and approach to the
law.
While Senators sometimes disagreed on these issues, Senator
Hatch is to be commended for not calling a series of
nominations hearings at which panels of witnesses were called
to attack Clinton nominees. If there was a personal issue, he
handled it privately, thus saving the nominee and nominee's
family much anguish. His fairness and gentlemanly demeanor were
a credit to the Chair he held on this Committee and to the
Senate as a whole.
Certainly, treating nominees fairly was a goal of mine when
I came to the Senate. I felt like the Senate could do a better
job of being fair to nominees and respectful of nominees. If we
disagreed with them, we inquired into the problems that we had
a disagreement with or a concern, but it was not necessary to
attack someone's integrity and character if you disagreed with
them or questioned a ruling or a position or a writing they
have taken in the past.
So, today, we address the question of ``should ideology
matter'' in the exercise of the Senate's advice and consent
responsibilities. I am not sure what ``ideology'' means, but to
answer this question I must first distinguish judicial
philosophy, which describes a nominee's approach to the law,
from result-oriented political ideology which describes a
nominee's view of how he or she would like to win the case.
In my view, the Senate may appropriately examine a
nominee's judicial philosophy, and should do so, but should not
assess a nominee on some results-oriented ideological or
political basis to demand that they produce rulings that we
might politically agree with.
Does the nominee understand that his or her role as a judge
is to follow the law, regardless of personal political opinion?
Does he or she understand the role of precedent in interpreting
the law? Can the nominee put aside political views, which may
be appropriate as a legislator, executive or advocate, and
interpret the law as it is written? Will the nominee keep his
or her oath to uphold the Constitution, first and foremost? The
Senate needs to know the answers to these important questions.
Questions that would implicate a nominee's view on what the
result of a particular case should be, however, should not be
asked, in my view.
This is important primarily because Federal judges are
unelected. They are appointed and confirmed once, normally in a
fairly routine manner, and then serve for life, unaccountable
to the normal political process or to the people. Policy
decisions, therefore, if we are to maintain our democracy, must
be left in the hands of the political branch, those who are
accountable to the people. Democracy is undermined in a most
fundamental way if we assert that judges have the power to set
public policy, because they are unaccountable to the American
people. So this is a deep, fundamental question of great
importance, it seems to me.
The ultimate responsibility for legal results does not lie
with the judge under our system, but with the people who
elected their legislators. In our democracy, that is where the
responsibility for making rules is supposed to lie, for this
allows the people, if they are unsatisfied with the rules, to
change them through the democratic process of electing new
Federal and State legislators and through ratifying amendments
to the Constitution.
I have heard some talk about the need for moderate judges.
Again, it is important to distinguish moderation in terms of
deferring to policies embodied in the law from moderation
seeking politically palatable results.
On the one hand, Alexander Hamilton applauded the
``benefits of integrity and moderation of the judiciary,''
whether the results of decisions were ``disappoint[ing]'' or
the cause of ``applause.'' On the other hand, he categorically
rejected moderation in a judge's duty to follow the law,
concluding that ``inflexible and uniform adherence to the
rights of the Constitution, and of individuals [is]
indispensable in the courts of justice. . .''
For example, in Brown v. Board of Education, the Supreme
Court properly ruled that ``separate but equal'' public schools
for the races violated the Equal Protection Clause of the 14th
Amendment. The States were denying African-American students
equal protection through the State education laws.
The Court's ruling, however, did not evoke a moderate
public response. Who knows what the polling data would have
shown about that ruling? But in many instances, a hue and cry
came from some of those who opposed the result. While this
result may not have been moderate in a political poll sense, it
was the proper course of legal action.
In the exercise of its advice and consent responsibilities,
the Senate's duty does not lie with public opinion polls,
professors' theories, or interest groups. Instead, as Senators,
we solemnly swear to ``support and defend the Constitution of
the United States. . .so help [us] God.'' We should ensure to
the best of our ability that judges do the same.
Some may ask why judicial philosophy matters. Judicial
philosophy matters because it determines whether results in
real cases are consistent or not, whether you can count on the
rules being followed every time.
How many of you would want your right to free speech
enforced only some of the time? How many would want your right
to be free from unreasonable searches enforced only when a
judge felt it would be politically popular to do so? How many
would want your right not to be discriminated against by State
schools based on your race enforced only if a judge liked you?
In America, we want our rights protected every time. This
is the only way we can be sure that our contracts will be
enforced in our business dealings, that our neighborhoods will
not be overrun with crime, and that our government officials
will not abuse their power for their own advantage.
The Founding Fathers believed that the best way to ensure
that the laws are followed every time is to write the laws down
and to have government officials who will follow them. We call
this the rule of law. If the laws were unwritten, then judges
and officials could make them up as they go. Our rights would
depend on the whim of unelected judges.
If the laws are written down, however, every judge and
government official starts on the same page. This makes it more
likely they will be consistent in their application of the laws
to all the cases before them. Our rights depend on written laws
in America. The people control what the laws say, and we must
expect judges will enforce the laws as written. It is so basic.
Activism was Senator Hatch's standard for whether or not a
judge at the basic level should be confirmed. He defined that
as a judge who was unwilling to follow the law. He wanted to
know would a judge subject himself to the law. We confirmed
overwhelmingly pro-choice judges. We confirmed many judges who
opposed the death penalty. They were asked, will you enforce
the law even if you do not agree with it? If they didn't say
that they would, they would not have been confirmed. They said
that they would and they were confirmed overwhelmingly. Only
one judge was voted down in this last session. So activism is a
standard that Senator Hatch set forth that is defensible. I am
concerned about a word as vague as ``ideology.'' I am not sure
what that would mean.
I will just conclude and put the rest of my remarks in the
record.
Chairman Schumer. Without objection.
Senator Sessions. The President and the Senate should work
together. I believe, Mr. Chairman, that you will ask tough
questions, and you have every right to. I believe that judges
should be inquired of, but if they will follow the law, if they
are men and women of good integrity, if they are men and women
of proven accomplishment, if they have good judgment and can do
the job in every respect, and have a proven record to that
effect, I believe the President's nominees should be given
great deference.
I would be very concerned if we were to create a historical
change here. After President Clinton's judges were given so
much deference, really, and he was given so much support for
those he nominated, it would be an unwise and dangerous thing
for this Senate to now change the way we evaluate judges and
begin to undermine the confidence that the American people have
in law.
My longtime concern about law in America has come about
because some people seem to think that it is unascertainable,
that judges can redefine words in ways that make them say
anything they would like for them to say. This is a very
dangerous and corroding philosophy.
The American people believe words have meaning. They
believe statutes bind judges and politicians and citizens. They
believe they can be given meaning. We have afoot in America
today a philosophy often in our law schools that suggests that
words don't have objective meaning, that it is all politics, it
is all power, and that truth is not ascertainable and law can't
be consistently applied.
I hope we don't nurture that in the way we approach the
judicial nomination process. We need to call on people to
follow the law, and I believe that they can, and I believe that
when we do so the great protections and prosperity this Nation
has enjoyed will continue.
Thank you, Mr. Chairman.
[The prepared statement of Senator Sessions follows:]
Statement of Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama
Mr. Chairman, I would like to thank you and your staff for working
with me and my staff in coordinating this hearing. You have been very
gracious in allowing us to have an equal number of witnesses. We have
been able to put the nation's interest first in the past, and I look
forward to working with you on this Subcommittee and on full Committee
to do the same in the future.
The constitutional process of confirming federal judicial nominees
is one of the Senate's most important duties. I take it very seriously.
It involves a Senator's view of the advice and consent process, his or
her respect for the rule of law, and his or her views on judicial
activism.
Advice and Consent
Article II, Section 2, Clause 2 of the Constitution, provides that
the President ``shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint . . . Judges of the supreme Court, and all
other Officers of the United States . . . .'' The President decides who
to nominate and the Senate renders advice and decides who to confirm.
Using these basic ground rules, Presidents and Senates have worked
together for over 200 years to appoint a sufficient number of federal
judges to try the people's cases in federal courts. President Reagan,
with six years of a Senate of his own party, appointed a record 382
Article III judges. President Clinton, with six years of a Senate of a
party not his own, appointed the second greatest number of judges--377.
I voted one down.
While the President has traditionally been accorded great deference
in selecting his nominees, the Senate is not a rubber stamp. Indeed, we
have the duty to assess, at least, a nominee's integrity,
qualifications, and temperament.
Throughout my tenure in the Senate, I have been impressed with the
manner in which the former Chairman of the Judiciary Committee, Senator
Hatch, guided this assessment process. He elevated the debate in the
Committee's judicial nominations hearings above partisan personal
attacks. He examined each nominee's integrity, qualifications,
temperament, and approach to the law. While Senators sometimes
disagreed on these issues, Senator Hatch is to be commended for not
calling a series of nominations hearings at which panels of witnesses
were called to attack judicial nominees. If there was a personal issue,
he handled it privately, thus saving the nominee and the nominee's
family much anguish. His fairness and gentlemanly demeanor was a credit
to the chair he held, this Committee, and the Senate as a whole.
Today, we address the question of ``should ideology matter'' in the
exercise of the Senate's advice and consent responsibilities. To answer
this question, I must first distinguish judicial philosophy, which
describes a nominee's approach to the law, from result-oriented
political ideology, which describes a nominee's view of who he or she
would like to win the case. In my view, the Senate may appropriately
examine a nominee's judicial philosophy, but should not assess a
nominee based on some result-oriented political ideology or his
political views.
Does the nominee understand that his or her role as a judge is to
follow the law regardless of personal political opinion? Does he or she
understand the role of precedent in interpreting the law? Can the
nominee put aside political views, which may be appropriate as a
legislator, executive, or advocate, and interpret the law as it is
written? Will the nominee keep his or her oath to uphold the
Constitution? The Senate needs to know the answers to these important
questions. Questions that would implicate a nominee's view on what the
result of a particular case should be, however, should not be asked.
The ultimate responsibility for the legal results, however, does
not lie with the judge, but with the people and their elected
legislators. In our democracy, that is where the responsibility for
making rules is supposed to lie. For this allows the people, if they
are unsatisfied with the rules, to change them through the democratic
process of electing new federal and state legislators and through
ratifying amendments to the Constitution.
I have heard some talk about the need for ``moderate'' judges.
Again, it is important to distinguish moderation in terms of deferring
to the policies embodied in the law from moderation in seeking
politically palatable results.
On the one hand, Alexander Hamilton applauded the ``benefits of
integrity and moderation of the judiciary'' whether the results of
decisions were ``disappoint[ing]'' or the cause of ``applause.'' \1\ On
the other hand, he categorically rejected moderation in a judge's duty
to follow the law, concluding that ``inflexible and uniform adherence
to the rights of the Constitution, and of individuals, [is]
indispensable in the courts of justice . . . .'' \2\
---------------------------------------------------------------------------
\1\ THE FEDERALIST No. 78, at 470 (Alexander Hamilton) (Clinton
Rossiter ed., 1961).
\2\ Id. at 470-71.
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For example, in Brown v. Board of Education,\3\ the Supreme Court
properly ruled that ``separate but equal'' public schools for the races
violated the Equal Protection Clause of the 14th Amendment.
The States were denying African American students equal protection
through state education laws.\4\ The Court's ruling, however, did not
evoke a moderate public response, but a hue and cry from some who
opposed its result. While this result may not have been moderate in a
``political poll'' sense, it was the proper course of action because it
followed the law.
---------------------------------------------------------------------------
\3\ 347 U.S. 483 (1954).
\4\ See Robert Bork, THE TEMPTING of AMERICA 74-84 (1990)
(supporting the judgment in Brown v. Board of Educ.).
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In the exercise of its advice and consent responsibilities, the
Senate's duty does not lie with public opinion polls, professors'
theories, or interest groups. Instead, as Senators, we solemnly swear
to ``support and defend the Constitution of the United States. . .So
help [us] God.'' \5\ We should ensure to the best of our ability that
judges do the same.
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\5\ ``I, A--, B, do solemnly swear (or affirm) that I will support
and defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to the
same; that I take this obligation freely, without any mental
reservation or purpose of evasion; and that I will well and faithfully
discharge the duties of the office on which I am about to enter: So
help me God.'' 5 U.S.C. Sec. 3331 (1988); Senate Rule III.
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The Rule of Law
Some may ask, ``Why do all these words like `judicial philosophy'
and `moderation' matter? Isn't it the results in real cases that
count?"
Judicial philosophy does matter because it determines whether
results in real cases are consistent or not--whether you can count on
the rules being followed every time. How many of you, would want your
right to free speech \6\ enforced only some of the time? How many would
want your right to be free from unreasonable searches \7\ enforced only
when a judge felt it would be politically popular to do so? How many
would want your right to not be discriminated against by state schools
based on your race\8\ enforced only if the judge liked you?
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\6\ U.S. Const. amend. I.
\7\ U.S. Const. amend. IV.
\8\ U.S. Const. Amend. XIV, Sec. 2.
---------------------------------------------------------------------------
In America, we want our rights protected every time. This is the
only way we can be sure that our contracts will be enforced in our
business dealings, that our neighborhoods will not be overrun with
criminals, and that our government officials will not abuse their power
for their own advantage.
The Founding Fathers believed that the best way to ensure that the
laws are followed every time is to write the laws down and to have
government officials who will follow them. We call this the rule of
law.
If the laws are unwritten, then judges and other government
officials can make them up as they go along. Our rights would depend on
the whims of judges--who are unelected. If the laws are written down,
however, every judge and government official starts from the same page.
This makes it more likely that they will be consistent in their
application of the laws to all the cases before them. Our rights depend
on the written laws and, in America, the people control what the laws
say.
Judicial Activism
To ensure that federal judges will actually follow the written law,
we give them life tenure and salary protection. It is less likely that
judges can be pressured to vote for things that Congress likes, even if
they violate the Constitution, because Congress cannot threaten their
jobs. Moreover, we require judges who have a conflict of interest in a
case to recuse themselves from that case.
But there are other pressures that can influence a judge to not
follow the written law--the judge's conscience, his or her desire for
popularity, or his or her political views. Against these types of
departures, salary protection, life tenure, and recusal requirements
are of no help. The only safeguard we have is the President's and the
Senate's examination of a potential judge's sense of duty to the law as
written and as intended.
If a nominee's record shows that he or she will not follow the law
as written and intended, that nominee is a ``judicial activist''--
whether conservative or liberal. Indeed, if a judge does not follow the
law as written and intended, he harms all of us in two important ways.
First, it undermines our certainty in the protection of our rights.
Will our contract to buy a house be enforced? Will criminals be let out
of jail to sell drugs at schools? Will the government be allowed to
take our property without just compensation? If the answers to these
questions depend on the judge's personal opinion or political views,
all of these rights are at risk.
Second, if a judge rejects the democratic process that ratified
that constitutional provision or enacted that statutory provision, that
judge has nullified our votes. Instead of our elected officials making
the rules, our unelected judges would be making the rules. Frankly,
this is scary.
Many have confused the issue of judicial activism by saying that it
means a judge reaches a liberal result in a case or that it means a
judge strikes a statute down. In my view, neither is correct. The
dangerous sort of judicial activism occurs when a judge refuses to
follow the law as written and intended regardless of whether the result
is liberal or conservative, and regardless of whether the statute was
struck down or upheld.
This judicial activism--or failure to follow the law as written and
intended--has real consequences to real people. Take, for example,
Sergeant Patrick Boyle who saw a federal judge release thousands of
prisoners in Philadelphia. The law gives a federal judge the power to
interpret the law, not to assume the executive duties of a warden.
Nonetheless, the judge released the prisoners and within 18 months they
had committed hundreds of new crimes, including 79 murders.\9\ One of
the murder victims was Sergeant Boyle's son. While the judge reached a
liberal result in releasing the prisoners, it was judicial activism
because she did not follow the law.
---------------------------------------------------------------------------
\9\ Judicial Activism Defining the Problem and its Impact: Hearings
before the Subcomm. On the Constitution Federalism and Property Rights
of the Senate Comm. on the Judiciary, 105th Cong., 47-48
(1997) (testimony of Patrick Boyle).
---------------------------------------------------------------------------
And there was a judge in New York who refused to punish protestors
who harassed patients at an abortion clinic.\10\ The F.A.C.E. Act
requires that such harassment be punished. Nonetheless, the judge would
not follow the law. Although I disagree with abortion, the F.A.C.E. Act
prohibits such harassment and should have been enforced. While the
judge reached a conservative result, it was judicial activism because
he did not follow the law.
---------------------------------------------------------------------------
\10\ United States v. Lynch, 952 F. Supp. 167 (1997).
---------------------------------------------------------------------------
Further, if Congress passed a law prohibiting public speeches that
criticized Senators, the current Supreme Court should strike it down 9-
0. This would not be judicial activism, but would be in accord with the
clear command of the Constitution that ``Congress shall make no law . .
. abridging the freedom of speech.'' \11\ Indeed, upholding such a law
despite the words of the Constitution would be activism whether liberal
or conservative speech was silenced.
---------------------------------------------------------------------------
\11\ U.S. Const. amend. I. In contrast, in 1934, in Home Building &
Loan Ass'n v. Blaisdell, the Supreme Court upheld a statute passed by a
State legislature that abrogated mortgage contracts despite Article I,
Section 10 of the Constitution which clearly provides that ``No State
shall . . . pass any . . . Law impairing the Obligation of Contracts .
. . .'' This was activism because the Court did not follow the clear
command of the Constitution, but assumed the role of active policy-
maker itself.
---------------------------------------------------------------------------
As for me, I am not willing to trade reaching politically palatable
results in a few cases for certain application of the same rules to the
highest government official and the most humble citizen in all cases. I
am not willing to trade some judge's view of political justice for that
described on the face of the Supreme Court Building--``Equal Justice
Under Law.''
Conclusion
In my view, the President and the Senate should work together to
appoint qualified, fair judges who will follow the law. Today, while
the Senate leaders continue to negotiate the peripheral issues of
whether controversial nominees will receive a floor vote or whether a
blue slip will be public, I urge Chairman Leahy to join the other
Democratic Chairmen of the Armed Services, Banking, Veteran Affairs,
Indian Affairs, and Foreign Relations Committees in starting to move
forward in a bipartisan manner to hold hearings on judicial nominees.
We now have blue slips returned and American Bar Association ratings of
qualified or well qualified for several nominees that await a hearing.
I am hopeful that Chairman Leahy, who appreciates and respects the
federal judiciary and the Senate, will move promptly to provide
judicial nominees with fair hearings.
Thank you, Chairman Schumer. I look forward to listening to the
statements from the other Senators here today and to hearing from our
distinguished witnesses.
Chairman Schumer. Thank you, Senator Sessions.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I certainly
commend you for calling this hearing on the Senate's role in
the selection of the Federal judiciary, and particularly on the
question of the role of ideology in the judicial selection and
confirmation process.
This, of course, is an extremely important topic for our
committee, and I know that we all take our role in this process
very seriously. I look forward to the testimony of the
witnesses and appreciate their willingness to help us sort
through some very difficult but absolutely crucial issues.
Let me begin by noting, as I did earlier this year, my view
that nominations to the Federal judiciary differ from
nominations to the President's Cabinet. I believe that the
Senate owes the President perhaps the most substantial
deference in the selection of the Cabinet. This deference flows
in large part from the language of the Constitution which
imposes on the President the duty faithfully to execute the
laws of the Nation.
I believe these considerations do not apply with equal
force in the selection of the Federal judiciary. While in the
constitutional scheme Cabinet members and other executive
branch officials work to carry out the will of the President,
our Constitution intends that the Federal judiciary will act
independently as a check and balance on the executive and
legislative branches of the Government.
An independent judiciary has been the hallmark of our
constitutional system of checks and balances. The Founders knew
well the writings of William Blackstone, who said in his
Commentaries, ``In this distinct and separate existence of the
judicial power consists one main preservative of the public
liberty which cannot subsist long in any state unless the
administration of common justice be in some degree separated
both from the legislative and also from the executive branch.''
The Constitution confers on the President the power to
submit judicial nominations to the Senate, but I don't think
the President is entitled to pack the judiciary with highly
ideological judges. And the President is not entitled to pack
the judiciary with judges certain to support the President's
views on virtually all issues, such as a woman's right to
choose, affirmative action, federalism, and church/state
relations.
The Federal judiciary is fundamental to protecting and
advancing the rights of citizens and the rule of law, which
forms the foundation of our Nation's economic and social well-
being. We on the Judiciary Committee have a responsibility to
protect the independence of the judiciary. We serve that
responsibility when we given a high level of scrutiny to
judicial nominees.
The distinguished chairman, Senator Schumer, has expressed
three touchstones for his evaluation of judicial nominees:
excellence, moderation, and diversity. I share his view, but
would add at least two touchstones of my own--fairness and
open-mindedness. In other words, I would stress the ability of
the nominee to conduct himself or herself as a judge, as that
term is usually understood by most Americans.
Senator Sessions and I have served together on this
Committee for 6 years, but we do see the recent past
differently.
I just saw a different picture, Senator. We get along well
as colleagues, but I saw a very different series of events. I
thought the Republican majority in the Senate badly mistreated
President Clinton's judicial nominees. I, for one, believe that
some Republicans essentially refused to recognize that
President Clinton won reelection in 1996 and too often treated
every year after that as an election year as they considered
judicial nominations.
I believe that the time has come to end this cycle of
recrimination, if we can, but it is not up to the Senate, now
under Democratic control, to unilaterally call a truce. The
President must lead. I call on the President to act boldly and
begin a new era of cooperation on judicial nominations. That
means engaging in true and meaningful consultation with the
Senate on his nominations, and I think it means recognizing the
improper efforts of his party to block President Clinton's
nominees by renominating those who received the most
reprehensible treatment.
If he does that, I think he will find a lot of Senators
willing to follow his lead and it would be an historic step. If
he does not, this Senator stands ready vigorously to exercise
his right and responsibility to advise and consent on
nominations. I shall resist efforts to pack the judiciary
simply with idealogues, and I am certain in that regard, Mr.
Chairman, I won't stand alone.
Thank you.
Chairman Schumer. Thank you, Senator Feingold.
We have three members of the full committee, or two will
soon be of the full committee, we hope, who are not members of
the subcommittee, but this is an important hearing and I would
recognize them for opening statements, just asking them to be a
little mindful of the time since we have a vote at 11:30.
STATEMENT OF HON. JON KYL, ARIZONA, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Senator Kyl. Thank you. Mr. Chairman, as a member of the
full Committee and almost the Chairman of this subcommittee, or
now your ranking member, I appreciate the opportunity to be at
this hearing. I kind of regret that I didn't take that
assignment, but my colleague, Jeff Sessions, wanted it and he
will do far better than I. In any event, I appreciate your
courtesy in allowing us to make a brief opening statement.
I find it interesting that the argument that a candidate's
ideology should be a sufficient rationale for rejection is
characterized as a bipartisan approach. I would think that
bipartisanship would mean quite the opposite. Cooperation with
the President on a bipartisan basis I don't think begins with a
threat that we are going to reject your nominees, no matter how
competent they might be, if we don't like their political
ideology, as we interpret it to be.
I think we should make no mistake that what is being
suggested here is a significant departure from the way that
nominees have traditionally been treated. Have there been
exceptions? Quite assuredly so, but they prove the rule because
they are exceptions to that general deference that has always
been given to the President's nominees.
From a bipartisan point of view, it concerns me because I
do believe it puts us on a very dangerous path of confrontation
and contention here within the Congress, as well as in our
relationship with the President, and also, as Senator Sessions
has said, creates a very bad precedent.
I also found it interesting that the Chairman alluded to
President Bush's campaign theme and frankly the reaction to
that by his opponent, who made it clear that if President Bush
were elected, he would be putting strict constructionists like
Justice Thomas and Justice Scalia on the Supreme Court.
That, of course, I think was a correct characterization of
the tradition that a President does do that. A President has
that right when he is elected, and he has been elected, by the
way, even though it was a close election. President Bush is the
President, and I think the Democrats who campaigned against him
on the basis that he would try to appoint people that were
consistent with his judicial philosophy were correct in saying
that he would do that, that that would be the end result,
because the Senate has always confirmed nominees more or less
of the President elected, regardless of how close the election
was. President Clinton, after all, never had a majority of the
citizens of this country vote for him, but we gave significant
deference to his nominees.
I think that it is a difference between a judicial approach
rather than a political ideology. If you question that, look
only to Justice Scalia, one of President Bush's favorite
Justices, as he said, who just recently reached a result
consistent with his judicial philosophy that I was a little
concerned about politically because it restricted the police's
right to gather evidence about what was going on in someone's
home. He very strictly construed the Fourth Amendment as, in
his view, prohibiting the police activity to advance law
enforcement in the Kyllo case. That is, I think, a good
recognition of the difference between a judicial philosophy and
political ideology.
I will just conclude with this point. For us in the Senate,
all political figures, to assume that we can, with blindfolds
over our eyes, maintain a balance on the Court at any given
time, I think, is sheer folly. Would any of us have wanted to
retain the balance on the Court after the Dred Scott decision?
That is not the way it works.
I would defy my colleagues to define balance today. I just
have three quick examples here. On a 5-4 decision in the Kyllo
case, Scalia's majority was joined by Justices Souter, Thomas,
Ginsburg and Breyer. Justice Stevens' dissenting decision was
joined by Rehnquist, O'Connor and Kennedy. Now, that is an
interesting balance. Is that the balance we want to preserve?
If so, I defy my colleagues to figure out how to do that.
Contrast that in the equal protection case, the so-called
Nguyen v. INS case that Justice Kennedy wrote for the majority,
and his majority was comprised of Rehnquist, Stevens, Scalia
and Thomas. O'Connor wrote the dissent, joined by Ginsburg and
Breyer. Well, that is an interesting balance. Is that the
balance that we want to preserve here?
Or the two flag-burning cases in which Justice Brennan's
majority opinion--this was back in 1989--was joined by
Marshall, Blackmun, Scalia and Kennedy, and Rehnquist, Scalia
and White dissented. Now, that is an interesting balance.
Should we preserve that balance?
My point is that for us as political figures--and this is
our milieu, politics--to try to translate our political views
onto a Court's job and maintain balance by our confirmations, I
think, is sheer folly. Instead, we should all revert to what
has traditionally been our role, judging the competence of the
candidate; the qualifications, including judicial temperament,
the background; and also some look at judicial philosophy.
We are going to have some differences of opinion on
judicial philosophy, but at a minimum it should be to adhere to
precedent, to try to interpret the Constitution as honestly and
in conformance with the rule of law as possible, and to allow
injection of political ideology into the process. So it seems
to me that we are on a very slippery slope, Mr. Chairman, when
we begin to assert that pure ideology is a basis for rejection
of the President's nominees.
Thank you.
Chairman Schumer. Thank you, Senator Kyl.
STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE
STATE OF KENTUCKY
Senator McConnell. Thank you, Mr. Chairman. I first began
to deal with the Senate's advise and consent role as a staffer
here in 1969 and 1970 to a member of this Committee during the
Haynesworth and Carswell nominations, and subsequently wrote
the only law journal article I wrote as a young man on that
subject after those contentious nominations were concluded. I
believed then and believe now that the appropriate role of the
Senate is largely as Senator Kyl suggested, which is to judge
the competence and the integrity and the fitness of a judge to
be on the bench.
I dutifully returned, gagging occasionally, every single
one of the blue slips I received during the Clinton years
positively. My view then and my view now is that the President
won the election, no matter what the margin, and is entitled
for the most part to tilt the judiciary in the direction that
he feels appropriate.
As Chairman of what we have come to call around here the
Gang of 5, the G-5 group, over the last two or 3 weeks I have
been involved in the issue in a different way, which is to
discuss the appropriateness of making blue slips public,
something we should have d1 years ago, and establishing for
this Congress, and for that matter forever, as far as I am
concerned, if we can do it, that Supreme Court nominees will
ultimately be voted on by the full Senate. That is the
tradition going back to 1880 for Supreme Court nominees to be
determined by the full Senate. Nowhere in the Constitution is
it suggested that advise and consent means only the Senate
Judiciary Committee. That is just a starting place. In fact, at
the end the full Senate ought to make these determinations.
What I fear is going on with the hearing today is trying to
establish a new litmus test for the Senate that has not existed
in the past. I don't understand why we are seeking to do that.
As Senator Sessions pointed out, and I think Senator Kyl
alluded to this as well, 377 of President Clinton's nominees
were approved. During 75 percent of his term, there was a
Republican Senate here. During President Reagan's years, during
which he had during 75 percent of his tenure in office a
sympathetic Senate, only a few more were confirmed, 382.
So what I fear is going on here is an effort to establish a
new standard under which nominees are judged and a litmus test
is established that substantially is at variance with the
majority of the American people. What appears to be happening--
and I hope this will not prove to be the case--is that some on
the left are increasingly dedicated to shutting down the
vibrant marketplace of ideas and replacing it with a monopoly
of thought where the only commodity to be bought is a kind of
liberal orthodoxy.
Their reason is that the conservative views are not ``in
the mainstream.'' Well, I can't see my chart over there, but I
believe the first thing we have up is a six-point litmus test.
What I fear is going on here is an effort to establish a litmus
test where you have to support judicial activism, restrict
First Amendment rights of political speech and association,
oppose Second Amendment rights for law-abiding citizens,
support partial-birth abortion, support racial preferences, and
expand the Federal Government or, put another way, diminish the
role of the States. Those are views that you have to espouse in
order to be approved by this committee. Now, those are not the
views out in middle America.
The other chart that I have put up sort of illustrates
where most of the country is. The States in red on the chart
are commonly referred to as middle America. I would suggest
that most of those folks are in the real mainstream, people in
Kentucky and Kansas and Ohio. The odds are, if you are from
those States, you will have middle American values. And if you
do and you are nominated to the Federal bench, under what I
think may be trying to be established here today and in the
future, you may be unable to serve because your values are
considered suspect or somehow outside the mainstream.
Well, where is the mainstream, I ask you? Where is the
mainstream? All across most of America, in most of the States,
I think the mainstream would be quite different from what may
be underway here today to establish as sort of acceptable views
things that are far different from what most Americans hold.
That is why the safest place to be and the sound place to
be and the place where the Senate has been most of the history
of our country is largely deferring to the President on the
question of ideology and judging the competence and the
integrity of the nominee.
The President was elected, not the editorial board of the
New York Times. And as astonishing as it may sound to some
here, the editorial views of the New York Times are not
mainstream values. Those are not the values of the vast
majority of Americans.
So I think we are going down, as Senator Kyl said, a
slippery slope if we are trying to establish here the principle
that this Committee should adopt the views of the New York
Times editorial page, describe those as mainstream values, and
anyone who doesn't hold them need not apply, and may actually
die right here in this Committee and never even be considered
by the full Senate of the United States.
I doubt if the Founding Fathers were aware that there would
be a Judiciary Committee. It probably never occurred to them.
When they said ``advise and consent,'' I think they were
talking about the full Senate. Certainly, the Founding Fathers
did not envision that there would be a bunch of co-presidents
here. They did, after all, give the power to nominate to the
President.
So, Mr. Chairman, I hope that that is not the ultimate goal
of this hearing to establish values, if you will, that are far
removed from mainstream America, and say that if you don't hold
those values, you can't be on the Federal judiciary. I hope
that is not the way we are headed.
I thank you very much for the opportunity to make an
opening statement.
[The prepared statement of Senator McConnell follows.]
Statement of Hon. Mitch McConnell, a U.S. Senator from the State of
Kentucky
Determining what is the exact role of the United States Senate in
the confirmation process is an important question, and I thank the
Chairman for convening this hearing to try to answer it. From press
accounts I have read, I am very concerned, however, that some of my
colleagues have a much more specific, and a much more disturbing, goal
for this hearing. That goal is to establish that it is somehow
constitutionally incumbent upon this body to disqualify otherwise well-
qualified judicial nominees simply because they are not on the left of
the political spectrum. Once my colleagues and their supporters on the
far left believe they have established this premise, I fear they will
then work to block all judicial nominees who do not fall on the
``correct'' side of the political spectrum, as they define it.
This is a troubling proposition. It is one that does not bode well
for the nomination process, nor for the rich intellectual tradition
that has characterized our federal judiciary. One of the great
traditions of our Republic has been the free exchange of thoughts,
embodied in the metaphor of the ``market place of ideas,'' where
speakers hawk their wares, bidding for the minds of men. Our judiciary
has benefitted from what has been, up until now, our profound national
commitment to diverse thought and rigorous debate. I cannot imagine how
much poorer our legal tradition would be if it would have been deprived
of the rich intellect of such different thinkers as Oliver Wendell
Holmes, Hugo Black, William Brennan, and Antonin Scalia.
But unfortunately it appears that some on the left are increasingly
dedicated to shutting down this vibrant market place and replacing it
with a monopoly of thought, where the only commodity to be bought is
liberal orthodoxy. Their reason? That conservative views are not ``in
the mainstream.'' Well, Mr. Chairman, I'm sorry, but the values of
middle America are most certainly in the mainstream, and arguably
embody it.
All these states in red-these states, commonly known as ``middle
America"-are ``in the mainstream.'' [See Chart With Map] Kentuckians,
for example, are ``in the main stream.'' So too are Kansans and
Ohioans. Odds are, if you are from these states, you will have middle-
American values. And if you do, and you are nominated to the federal
bench, you most likely will be unable to serve, because those on the
far left are crafting a new, six-point litmus test to bar you from the
bench. [See Chart With Bullet-Points]
Now, we are all familiar with litmus tests, but I'm afraid that
some on the far left are taking it to new, disturbing levels. In their
view, in order to serve as a federal judge, you must:
Support Judicial Activism;
Restrict First Amendment Rights of Political Speech
and Association;
Oppose Second Amendment Rights for Law-Abiding
Citizens;
Support Partial-Birth Abortion;
Support Racial Preferences; and
Expand the Federal Government by Diminishing the Role
of the States
Under their approach, if a nominee is tripped-up by any one of
these hurdles, he is unfit to serve. His education will not matter. His
experience will not matter. His achievements, both personal and
professional, will not matter, nor will the fact that he may have
overcome numerous adversities, suffered untold hardships, and even
received the approval of the ABA. It will not matter if he has fought
for his country, given to his community, or sacrificed for his family.
Because he is not the person whom the editorial board of the New York
Times would have picked to serve on the bench, he is barred from
service.
Over the years, people from time to time have objected to judicial
nominees on the ground that their legal views were extreme. But until
now, they have saved ``Borking'' for an unlucky few. Until now, they
have not tried to convert the usage of ``Borking'' from an exception to
the rule itself. They have not sought to disqualify an entire class of
nominees from public service based on their philosophy. They have not
essentially said, until now, that ``Prolifers need not apply.''
My colleagues, if we go down this road, we will have a meltdown in
our nomination process. It will be mutuallyassured destruction that
will cripple the federal judiciary. It is naive to think that such a
dramatic escalation in partisanship will not, by necessity, be visited
upon the next Democrat to occupy the White House. We therefore cannot
allow ``advise and consent'' to become ``demand and dictate.'' The
Constitution does not provide for 100--or even 51--co-Presidents. So I
caution my colleagues to be judicious in their objections to the well-
qualified Americans who will come before them.
Voting for nominees of another philosophical stripe can be painful,
but both sides have always done it. Most recently, I point to President
Clinton's near-record number of 377 judicial nominees who were
confirmed, even though Republicans controlled the Senate for 75% of his
term. For eight long years I voted to confirm most of President
Clinton's nominees, although there is no way I would have nominated
most of these people if I were President because I disagreed with their
judicial philosophy, sometimes vigorously so. But I did not wage some
sort of jihad to stop them because, quite frankly, it was not
appropriate for me to do so. Nor would it be appropriate now for my
colleagues on the other side to bow to pressure from groups on the far
left and wage an all-out war against well-qualified Americans who seek
to serve their country. So, in closing, I would caution my colleagues
to be mindful of the precedent they are setting, and to be wary of what
they wish for.
Thank you.
[GRAPHIC] [TIFF OMITTED] T9825.027
[GRAPHIC] [TIFF OMITTED] T9825.028
Chairman Schumer. Thank you, Senator McConnell, and we
won't ask you to substitute the views of the Courier Journal
for those of the New York Times in your statement.
[Laughter.]
Senator McConnell. They are indistinguishable. They simply
rewrite them each day, one day later.
[Laughter.]
Chairman Schumer. The Senator from Kansas for a brief
opening statement.
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you, Mr. Chairman, and thank you
for allowing me to participate during this reorganization
period on the committee.
I think a number of my colleagues have expressed a high
degree of concern of getting into an ideological set of litmus
tests here on considering judicial nominations, and I would
support those concerns. I think those are proper, I think they
are wise. I think they are the sort of philosophy and thought
that we should consider over a long period of time, the impact
of inserting ideology in the matter.
I have always given the President, regardless of his
political affiliation, a good deal of deference on his
nominees, or her nominees in the future, to the Federal bench.
However, I have heard some call for changes on this deference
now because, while ideology has been discussed in the back
rooms, now we should bring it out and openly bring it forward.
I don't think we should be inserting ideology in these
matters, ideology for a liberal litmus test or a conservative
litmus test, going either way. I would just like to take, if I
could, Mr. Chairman, a few minutes to discuss the number of
past jurists that we have had who would not make the bench
today if we went on an ideological test.
Take, for example, Justice Hugo Black, a great liberal
Justice, the architect of extending the Bill of Rights to the
States. This Roosevelt appointee could not be confirmed under
the new standard because he did not believe that the
Constitution's test provided protection to contraception, and
he did not believe that the Equal Protection Clause prohibited
poll taxes for State elections.
Let's look at Felix Frankfurter, a liberal intellectual who
advocated validating New Deal legislation under the Commerce
Clause. This Roosevelt appointee could not be confirmed under
the new standard because he did not believe that the First
Amendment prohibited schools from requiring students to salute
the American flag. He did not believe that the Fourth Amendment
required the exclusion of evidence seized by State police
officers without a warrant. He did not agree that the Equal
Protection Clause required reasonable apportionment among State
voting districts.
Justice Byron White, President Kennedy's appointee, a
respected Yale Law graduate, could not hope for confirmation
under the new standard. He did not believe that the
Constitution included a right to an abortion.
Justice Lewis Powell, a philosophically moderate president
of the American Bar Association who worked to implement
desegregation in Richmond's public schools, could not be
confirmed under the new standard. He could not be confirmed
because he believed that, while race could be considered in
university admissions, racial quotas could not be used.
Oliver Wendell Holmes, the great dissenter from the pre-New
Deal Courts, couldn't be confirmed. He looked at use of
substantive due process to strike down labor laws, and was an
avid defender of the Free Speech Clause. He would have trouble.
After all, he affirmed a State law providing for the
sterilization of the mentally ill.
Louis Brandeis, a great liberal craftsman, could be
disqualified based on his views on federalism. He voted to
strike down a Federal tax on child labor as invading the
sovereignty of the States, and believed that the headlong drive
for national power by the supporters of the New Deal threatened
to destroy one of the great bulwarks of liberty, that being
federalism. He later voted to strike down pieces of New Deal
legislation as beyond Congress' commerce power and as an
unconstitutional delegation of power.
Finally, what about Earl Warren, the author of Brown v.
Board of Education, a great decision in my hometown, and a
champion of civil rights? He could have a tough confirmation
battle under the new standards. After all, he took the
reactionary position of not supporting extension of the First
Amendment protection to flag-burning.
If a Democrat President nominated such individuals, most of
whom would be left of center, a Republican Senate would give
them due deference, and I think it would be wise that they
would. Likewise, if a Republican President nominated qualified
nominees who were mostly right of center, I think a Democratic
Senate should give them due deference as well.
Yet, to some special interest groups, the above nominees
would be too extreme. Perhaps the real extremism is being
employed by those artfully using the terms ``balance'' and
``moderation'' to set the stage for ending deference to the
President and excluding perfectly qualified nominees.
Mr. Chairman, I make those comments and those examples
because I think if you take any single nominee and you pick one
thing, two things, maybe three things out, you can find an
ideological reason that they should be excluded. I listed some
of the great jurists of this country's history, and would we
exclude all of those today from serving on the Court? I would
hope not. But I think if we start going down this road of
saying that ideology is the litmus test that we are measuring
on, we have the opportunity of blocking some of the great
people that could serve on the bench and I think that would be
a wrong step for us to take.
Thank you.
Chairman Schumer. I thank the Senator, and thank all of my
colleagues for statements.
I would just say in reference to the Senator from Kansas,
no one is saying that a single issue should block any judge.
The question--and we are trying to explore this question, and I
regret that some of my colleagues seem so defensive about an
exploration of what has been a time-honored discussion--is
whether their views on those issues or other issues should
enter into the discussion as we evaluate them. But evaluation
does not equal a litmus test, and in the past, at least, it
seems to me that we have avoided even evaluation on those
issues and it is a very open question as to whether that should
continue.
We will have some great witnesses, whom we will get to
right now, to discuss that, and so let me thank them for their
patience and for their being here. We have two gentlemen who
have been extremely involved, of course, in the Presidential
part of the selection of judges and Justices, and let me call
on both of them.
First, Lloyd Cutler is a partner and senior counsel in the
Washington law firm of Wilmer, Cutler and Pickering. From 1979
to 1980 and in 1994, he served as counsel to Presidents Carter
and Clinton. Mr. Cutler is a graduate of both Yale College and
Yale Law School, and a founder and former co-chairman of the
Lawyers Committee on Civil Rights under Law. He has also served
as the co-chairman of the Committee on the Constitutional
System, a member of the American Law Institute, and trustee of
the Brookings Institution. He is testifying today in his
capacity as a co-chair of the Constitution Project's bipartisan
Courts Initiative. I want to thank Mr. Cutler for joining us.
Immediately after him, we will hear from C. Boyden Gray.
Mr. Gray is presently a partner in the Washington, D.C., law
firm of Wilmer, Cutler and Pickering. Mr. Gray graduated from
Harvard College magna cum laude, and first in his class from
the University of North Carolina Law School, where he served as
editor-in-chief of the UNC Law Review.
Following graduation from law school, he clerked for Chief
Justice Earl Warren of the U.S. Supreme Court for a year. He
served as legal counsel to Vice President George Bush from 1981
to 1989. Mr Gray later served as counsel to President Bush from
1989 to 1993.
I want to thank both of you for coming. Your entire
statements will be inserted into the record.
Mr. Cutler, you may proceed.
STATEMENT OF LLOYD N. CUTLER, CO-CHAIR, CONSTITUTION PROJECT'S
COURTS INITIATIVE, AND FORMER WHITE HOUSE COUNSEL, WASHINGTON,
D.C.
Mr. Cutler. Thank you very much, Mr. Chairman and members
of the committee. Since you referred to our law firm twice, I
should note for the record that Boyden and I were law partners
there before either of us became counsel to a President.
In listening to the opening statements, I couldn't help
noticing your differences on what I call ideology begin with
how to pronounce it. You, Mr. Chairman, Senator Feingold and
Senator Kyl all say ``ideology.'' Senator Sessions and I say
``ideology.'' It seems to be a question of ``you say tomato and
I say tomato.'' Perhaps the best answer to it all is Potter
Stewart's famous remark about pornography that he could not
define it, but he knew it when he saw it. Perhaps that is
equally fair about ideology.
I have served on these two national committees that you
referred to, one run by the Miller Center at the University of
Virginia, in 1999, and the other run by the Century Foundation,
and you have just referred to that as well. There conclusions
on this issue of ideology are set forth in their reports, and I
want to read only one extract from the Miller Center report
which essentially agreed to in the later 1999 report of the
Century Foundation.
The Miller report: ``What is most important is the
appointment of judges who are learned in the law, who are
conscientious in their work ethic, and who possess what lawyers
describe as `judicial temperament.' That term, difficult to
define, essentially has to do with a personality that is
evenhanded, unbiased, impartial, courteous yet firm, and
dedicated to a process, not a result. The law will be fairly
read and applied, irrespective of the judge's personal views as
to its wisdom; where the judge is the finder of fact, the facts
will be fairly found.''
``As this Report recognizes, throughout our history the
appointment process has been built on politics. . .The
Commission believes it would be a tragic development if
ideology became an increasingly important consideration in the
future. To make ideology an issue in the confirmation process
is to suggest that the legal process is and should be a
political one. That is not only wrong as a matter of political
science; it also serves to weaken public confidence in the
courts. Just as candidates should put aside their partisan
political views when appointed to the bench, so too should they
put aside ideology. To retain either is to betray dedication to
the process of impartial judging. Men and women qualified by
training to be judges generally do not wish to and do not
indulge in partisan or ideological approaches to their work.
The rate exception should not be taken as the norm.''
Now, we recognized in both commissions, and I personally
recognize that there is a very fine between ideology and other
considerations. Is the candidate judicious? Is he fair and
open-minded? Are his decisions prepared and presented in a way
that is likely to be accepted as having those qualities by the
general public? And is his personal conduct beyond reproach?
All of these are legitimate questions for an administration
nominating judges and for the Senate in deciding whether to
confirm them.
As many of you have noted, Senators can and do reject
candidates on the ground that they are ideological, but they
need to ask themselves is this within the ambit of appropriate
advice and consent? That, of course, at least in my view, is up
to the Senators themselves to decide in the first instance.
But just like Presidents and members of the Department of
Justice and White House Counsel, they should be careful to
limit their interrogations as to a candidate's stance on issues
about to reach the court. As I said, the same thing also
applies to the President and the Department of Justice.
Candidates should decline to reply when efforts are made to
find out how they would decide a particular case. And most
important--and this has been a recent tendency at least in my
last experience as White House Counsel--interest groups should
eschew--a real lawyer's word--personal attacks on candidates to
defeat those they want to keep off the bench.
There have been cases that I know about personally in which
an interest group who wanted to block a particular candidate
literally tried to find some dirt, something to do with sexual
behavior or whatever, to spread against that candidate to keep
him off the bench.
What seems to be the saving grace in all of this is the so-
called Good Behavior Clause, that judges should serve during
their good behavior. Something happens to a judge when he is
nominated, confirmed and put on the bench because of the Good
Behavior Clause. He is no longer worried about will he get
reappointed. He will often confound the President who appointed
him, or even the Senators who voted in his favor.
There is a famous story which I am sure the scholars will
refer to about President Lincoln and Samuel P. Chase, who was
then in the Lincoln Cabinet. This is, of course, the legal
tender case in which the Court split evenly 4-4 on whether the
Federal Government had the right to issue paper money as an
emergency measure during the war.
Lincoln wrote to a friend that ``we cannot ask the man how
he would decide the case on reargument, and if he should answer
us, we should despise him for it. Therefore, we must pick a
candidate of whose views we are absolutely certain.'' And he
went ahead and picked Secretary Chase, who had been a member of
Lincoln's Cabinet and who had presented the legal tender bill
to the Congress and had gotten it enacted. And in the outcome,
Senator Chase, on rehearing, cast the deciding vote against the
very statute he had helped to present.
I see we are limited in time.
Chairman Schumer. Please proceed. We will shut off the
light.
Mr. Cutler. Just one more quick point, and that is the
point made by Professor Charles Black, who has been of our
greatest students of the Supreme Court, and that is that the
Court is the lynch pin of the whole constitutional system
because it is the Court which validates most of the acts of the
Executive and the Congress in a way that the public will
accept, in a way that reassures the public.
Of course, in the course of performing that duty, the Court
occasionally, but only occasionally, knocks out a particular
statute or a particular example of egregious Executive action.
But its main function is to validate what the other two elected
branches do, and to do it in a way that convinces the public
that most of the actions of the Government are acceptable.
The Court, as others have referred to--Senator Kyl, I
think, about the Dred Scott case--has not always been the most
popular institution in the country by far. The Dred Scott case
itself, dealing with whether former slaves are really citizens
within the meaning of the Fifth Amendment; the law invalidating
the income tax--there are a number of other examples in which
the Supreme Court was looked on as the defender of property
rights, the upholder of the rights of the rich against those of
the less fortunate.
All of that changed with the Warren Court, my colleague
Boyden Gray's distinguished Chief Justice for whom he served as
law clerk. Ever since the days of the Warren Court, most
members of the public have come to believe that the Court is
the protector of the rights of all citizens, rich and poor. And
that is the Court's most important function, and that function
is less likely to be performed well by idealogues of the
extreme left or the extreme right. It takes centrists to arrive
at results which the general public will accept and feel
reassured were confirmed by a dispassionate, law-abiding Court.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Cutler follows:]
Statement of Lloyd N. Cutler, Co-Chair, Constitution Project's Courts
Initiative, and former White House Counsel, Washington, D.C.
I have served on two national commissions dealing with how to
improve the process of nominating and confirming federal judges. Both
have taken up the ideological issues that are the subject of your
hearing today. The first commission, created by The Miller Center of
Public Affairs at the University of Virginia, filed its report in 1996.
The second, created by the Century Foundation and called Citizens for
Independent Courts, filed its report in 1999.
My views on the role of ideology in the nominating and confirming
process are set forth in these reports. They are incorporated in my
statement. I will read a few key paragraphs from-each:
First The Miller Center report in 1996:
``What is most important is the appointment of judges who are
learned in the law, who are conscientious in their work ethic, and who
possess what lawyers describe as ``judicial temperament.'' That term,
difficult to define, essentially has to do with a personality that is
evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a
process, not a result. The law will be fairly read and applied,
irrespective of the judge's personal views as to its wisdom; where the
judge is the finder of fact, the facts will be fairly found.''
``As this Report recognizes, throughout our history the appointment
process has been built on politics. The danger of purely political
appointees lacking the necessary competence led Attorney General
Brownell to introduce the American Bar Association's participation in
the process. At that time--and for some years thereafter--relatively
few persons in the Executive Branch and the Senate or its staff worked
on judicial appointments, and rarely were any of them, even when
lawyers, experienced in court practices and procedures. The ABA
Committee was designed to fill that lack and insure, insofar as the
political process permitted, the high quality of those selected.''
``In addition to the growing number of appointments, the changing
political process has had its impact on who the candidates for judicial
office are and whether they will be nominated and confirmed. The
increasingly ideological nature of political campaigns, the need for
huge sums of money, the growth of dependence on contributions from
various ideological groups, and the willingness of these groups to
launch personal attacks on candidates they ideologically oppose, has
the potential to affect the appointment process in unfortunate ways.
Even putting aside the cases of Supreme Court nominees such as Robert
Bork and Clarence Thomas, where this problem was obvious, there have
been some signs of similar ideological controversy creeping into the
process of nominating and confirming lower court candidates. While it
appears that the present administration has been conscious of the
problem and relatively successful in avoiding such ideological
controversies, we have learned of occasional episodes where qualified
candidates have refused to be considered or have withdrawn from fear of
being ``Borked.''
The Commission believes that it would be a tragic development if
ideology became an increasingly important consideration in the future.
To make ideology an issue in the confirmation process is to suggest
that the legal process is and should be a political one. That is not
only wrong as a matter of political science; it also serves to weaken
public confidence in the courts. Just as candidates should put aside
their partisan political views when appointed to the bench, so too
should they put aside ideology. To retain either is to betray
dedication to the process of impartial judging. Men and women qualified
by training and experience to be judges generally do not wish to and do
not indulge in partisan or ideological approaches to their work. The
rare exception should not be taken as the norm.
In any case, it is our view that the important process of
appointing federal judges need not be as difficult as it now seems. The
ultimate question is simply whether or not potential candidates have
the qualities of integrity, good judgment and experience to become
judicial officers of the United States. Occasional mistakes will be
made. But no amount of bureaucratic vetting or testing for ideology
will achieve perfection, and too complex a process can do more harm
than good.''
Second, the Century Foundation Report in 1999:
Recommendations for Executive and Legislative Branch Reviewers on
Ideology in Federal Judicial Selection
1. Candidates for judgeships should be committed to deciding cases
based on the law and facts of particular cases, without the intrusion
of any rigid ideological pre-commitments to certain results or
approaches to the law.
2. Reviewers should investigate a candidate's experience,
qualifications, temperament, character, and general views of the law
and of the judicial role. Selecting a federal judge is not just a
matter of picking a legal technician, for a person's judgments may well
reflect one's broad values and commitments.
3. Reviewers must refrain from asking candidates for particular
pre-commitments about unresolved cases or issues that may come before
them as judges.
4. The limit on questions seeking pre-commitments should be applied
by reviewers in a common-sense fashion. In particular, this limit
should not be allowed to prevent a fully deliberative investigation
into the backgrounds, qualifications, and judicial philosophies of
candidates for judgeships.
5. The limit on questions seeking pre-commitments should be
respected equally by the President and other executive branch reviewers
as well as by senators and other legislative branch reviewers, despite
differences in the roles played by the two branches in the appointment
process.
6. The limit on questions seeking pre-commitments should apply with
respect to candidates for courts at all levels of the federal
judiciary.
7. Reviewers seeking to assess a candidate's views should exercise
caution when evaluating a person's current or former clients,
memberships, and writings or speeches.
8. The value of judicial independence is consistent with pursuing
diversity on the federal bench.
9. The value of judicial independence is consistent with active
involvement by bar associations in the selection process.
Rather than read these extracts from the two reports, I will file
them for the record. After making a few personal observations of my
own, I will be pleased to answer your questions.
Chairman Schumer. Thank you, Mr. Cutler.
Mr. Gray?
STATEMENT OF C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL,
WASHINGTON, D.C.
Mr. Gray. Thank you, Mr. Chairman. Even though Lloyd and I
come from the same law firm, we didn't cook up this testimony
together. I am happy to see that we are not that far apart on
this issue, although on others we do, of course, differ.
I would like to just summarize three points from my
testimony quickly. I think it is entirely appropriate to ask
questions about the general philosophy of a candidate in terms
of how he views his role as a judge and the role of the
judiciary, but I think it is very inappropriate to ask about
specific cases or specific issues.
I remember very vividly as though it were yesterday coming
down to the Senate in the beginning of the first Bush
administration, meeting with Senators Hatch and Thurmond. The
meeting was called by the chairman, Senator Biden, and Senator
Kennedy was there. And we were told in no uncertain terms that
if they caught us asking any potential nominee any questions
about specific cases that that nominee would be flatly
rejected.
We took that to heart, and I think that is reflected today
in the Senate Committee questionnaire which asks, ``Has anyone
involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue, or question
in a manner that could reasonably be interpreted as asking or
seeking a commitment as to how you would rule on such a case,
issue or question?''
I would add that this is a bipartisan approach, and remind
the Committee of what Senator Kennedy said in 1981 in defending
Justice O'Connor's refusal to answer questions on abortion. He
said, ``It is offensive to suggest that a potential Justice of
the Supreme Court must pass some presumed test of judicial
philosophy.''
The reason why targeting such issues as federalism for
potential reversal is precisely because it challenges the
independence of the judiciary and the Supreme Court, which
independence is the cornerstone of our constitutional system.
The second point I want to make is that ideology or litmus
tests have, in fact, never been the rule of application by the
Senate. Many facts and numbers have been thrown out this
morning by members of the committee. I won't belabor the point,
but in the last 20 or so years the Senate has changed hands
several times, and yet nominees have been approved at the clip
of about 190 per 4-year term.
In the Reagan-Bush period, the Senate was held by the
Democrats for 6 of the 12 years and by Republicans in the other
6. I don't think there was any basic difference in how those
nominees were treated by the Senate, and the same I think is
true in the Clinton period, about 190 per 4-year term.
Finally, party affiliation and perceived ideology--I
question whether they are very good predictors of how judges
will at the end of the day vote. Seven of the current members
of the Supreme Court were appointed by Republicans. Yet, two of
those seven are among the most liberal judges of the last
period, and no one would say with certainty that they could
have predicted how they would have voted, how their pattern of
votes has emerged, at the time of their selection.
One of the most famous examples of a nominee not going
along with the program of the President who appointed him is
Oliver Wendell Holmes. Their relationship was strained as a
result. I think they remained friends until the end, but it was
not something which President Roosevelt took a lot of joy in.
The person for whom I clerked, the Chief Justice of the
United States, Earl Warren, was viewed reputedly from the
history books by President Eisenhower as a big mistake because
he was thought to be so liberal. Yet, toward the end of his
career he issued some opinions in areas of federalism which I
think today would look conservative. His views on pornography,
I think, today would be viewed as outright reactionary.
The point is that I don't know how you apply a litmus test
fairly without creating the perception, if not in fact the
reality, of again threatening the very independence of the
judiciary, which is such a central building block of our
constitutional system.
Thank you very much.
[The prepared statement of Mr. Gray follows:]
Statement of C. Boyden Gray, Former White House Counsel, Washington,
D.C.
Good morning, Mr. Chairman. Thank you for this opportunity to
appear today. If the goal of today's hearing is to answer the question,
``Should ideology matter?'' I can answer in one word: No. The only
legitimate question on this subject--from the White House, the Senate,
the Judiciary Committee, or an individual Senator--pertains to the
proper Constitutional role of a federal judge. The question is very
simple: ``What is the proper role of a federal judge, or of the federal
judiciary?'' If the nominee's answer is ``to interpret and apply the
law,'' or words to that effect, then you have a nominee who understands
the limited role of a judge. If, on the other hand, a nominee views the
judiciary as a vehicle for favoring particular interest groups or
particular outcomes, then the nominee is unfit to be a judge and should
consider running for legislative office instead.
Historically, judicial nominees have not been asked about their
views. There simply were no hearings on judicial nominees until 1925.
Even then, the hearings were perfunctory affairs for decades. When
Byron White was nominated to the Supreme Court in 1962, the Judiciary
Committee asked him eight questions and the hearing lasted 15 minutes.
In 1981, Senator Kennedy defended Sandra Day O'Connor's refusal to
answer questions about her views on abortion. He said, ``It is
offensive to suggest that a potential justice of the Supreme Court must
pass some presumed test of judicial philosophy.''
As I said earlier, I think there is one legitimate test of judicial
philosophy. But if the Senate--or the White House--asks overly specific
questions, they threaten the independence of the federal judiciary by
seeking advance commitments to rule certain ways in particular cases.
In fact, the questionnaire that the Judiciary Committee sends to
judicial nominees before its hearings makes clear that this is an
unacceptable practice. The questionnaire asks, ``Has anyone involved in
the process of selecting you as a judicial nominee discussed with you
any specific case, legal issue or question in a manner that could
reasonably be interpreted as asking or seeking a commitment as to how
you would rule on such case, issue or question? If so, please explain
fully.''
Very early in the first Bush administration, when I was White House
Counsel, I met with Judiciary Committee Chairman Biden and Senators
Kennedy, Hatch and Thurmond. Senators Biden and Kennedy made it very
clear, with Senators Hatch and Thurmond nodding in agreement, that a
nominee would not be confirmed if the White House were caught asking
questions about specific issues or cases.
Both Republicans and Democrats have been accused of using unfair,
politically driven litmus tests in nominating or confirming judges. The
criterion I have outlined is the closest thing to a proper litmus test
because it only considers whether the nominee understands the proper
Constitutional role of an unelected federal judge, which in turn
indicates whether he or she understands the American system of self-
government. In our democracy, decisions on major political issues
should be made by the people and their elected representatives, not by
unelected judges. This has been the prevailing and respectable point of
view since our nation's founding. The alternative view--that judges can
make decisions freely, without being constrained by the language of the
Constitution or statutes--is an extreme position shared by almost no
one. That's the view that should be described as extremist, because it
lets judges do whatever they want, regardless of what the law says, and
that should frighten Americans on both ends of the political spectrum.
As Thomas Jefferson cautioned, if judges were allowed to interpret the
law to be what they wish, the Constitution would be ``a mere thing of
wax in the hands of the Judiciary, which they may twist and shape into
any form they please.''
Some organizations and individuals have urged the Senate to just
say no to judges nominated by a President of the other party. Before
President George W. Bush was even inaugurated, before a single judge
had been named or nominated, one group said it would fight so hard
against his judicial nominees that ``it will be scorched earth. We
won't give one lousy inch.'' That hasn't been the historical approach,
and I urge you to reject this political warfare. It threatens judicial
independence at its most vulnerable and fundamental core.
During the twelve years of the Reagan-Bush era, Democrats
controlled the Senate half the time. Yet the Senate confirmed 382 of
President Reagan's judicial nominees and 191 of President Bush's
nominees. During Clinton's presidency, Republicans controlled the
Senate for six out of eight years, but they confirmed 377 of President
Clinton's judicial nominees. It's safe to say that Republicans
disagreed with the political preferences of many of these judges, but
they voted down only one judge. And that is appropriate; rejections
should be rare. Alexander Hamilton said in The Federalist Papers that
judicial nominees should be rejected only for ``special and strong
reasons.''
Ideology and party identification have never been very good
benchmarks for ascertaining how a judge will decide future cases in
controversial areas. There are seven Republican appointees on the
current Supreme Court. Two of them are among the most liberal justices
of the century, and most of them have supported the Court's decisions
upholding Roe and striking down state partial birth abortion statutes.
One such appointee--Chief Justice Rehnquist--supported the Miranda
decision, and at least two conservative members of the bench render
broad definitions of the procedural protections under the Fourth
Amendment and are inclined to support greater judicial scrutiny of
administrative agency action. Presidents, no doubt, try to identify
nominees who will defend the White House's prerogatives, but history
proves that such efforts are often pointless. Justice Oliver Wendell
Holmes, for example, ended up thwarting the antitrust policies of the
president who nominated him--Theodore Roosevelt. And, finally, justices
do not always live up to the ``label'' they receive. Toward the end of
his career, the justice for whom I clerked--Chief Justice Earl Warren--
invoked federalism principles that might be considered ``conservative''
today.
But even if you reject the proposition that idelogy is not a good
gauge, ideological inquiries are perilous because of the message they
send to the public at large. If Senators focus on the results or
outcomes in particular, people will simply view the judiciary as
another political institution. Under this setting, law is just politics
by other means.
One commentator recently has suggested that the country needs some
activist judges on the bench to maintain some balance. After all, the
last election was close, so the courts should ``reflect the nation's
profound ambivalence.'' Well, I don't know if we want to appoint
profoundly ambivalent judges. After all, it's not uncommon for the
White House and the Senate to be in the hands of different political
parties, and we've never apportioned judicial seats on the breakdown of
the vote in the last election. The Constitution assigns the appointment
power to the President, and I think it's clear that the advise and
consent role of the Senate does not include a pre-nomination function.
In conclusion, Mr. Chairman, the key criterion for judging a
potential judge is not ideological, but philosophical and
Constitutional: Does the nominee have the integrity to recognize the
limited role of a judge and leave legislating to the legislators?
Thank you.
Chairman Schumer. Thank you, Mr. Gray.
Now, we will go to questions. We are going to have votes at
11:30 and we would like to finish this panel before then, so I
am going to stick strictly to the 5-minute rule, if we might.
Senator Hatch. Mr. Chairman, could I ask a special
privilege here, since I have to leave, if I could just make a
short opening statement?
Chairman Schumer. We will take that as your 5 minutes of
questions. Go ahead, go ahead.
Senator Hatch. I would appreciate it if you would.
Chairman Schumer. The Ranking Member of the committee, who
has always treated us fairly, please.
STATEMENT OF HON ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman.
I want to welcome all of our witnesses here this morning.
You are all eminent lawyers, all eminent people at your
respective bars.
I want to thank Chairman Schumer for permitting me to say a
few words on the important question of what role ideology
should play in the judicial nominations process.
The shift of power in the Senate has focused a great deal
of attention on the Judiciary Committee and how it will handle
the confirmation of President Bush's judicial nominees. I hope
that the heightened focus proves to be unwarranted and that the
new Democratic majority will fairly treat President Bush's
nominees to our Federal courts. In particular, fair treatment
includes maintaining the committee's longstanding policy
against injecting political ideology into the judicial
confirmation process, and thus into the Federal judiciary.
There are myriad reasons why political ideology has not
been and is not an appropriate measure of judicial
qualifications. Fundamentally, the Senate's responsibility to
provide advice and consent does not include an ideological
litmus test, because a nominee's personal opinions are largely
irrelevant so long as the nominee can set those opinions aside
and follow the law fairly and impartially as a judge.
In our constitutional scheme, it is the members of the
legislative branch, elected by the people and accountable to
the people, who make our laws. When the voters do not like
these laws, they can, and as we all know too well, they do vote
their elected representatives out of office. This is what makes
our system a representative democracy, founded on our faith in
self-government.
Federal judges, by contrast, are unelected, have life
tenure, and by design are not accountable to the people. Their
power is nonetheless justified, indeed indispensable, to the
extent it is only exercised by interpreting the written, duly
enacted law. The role of Federal judges is quite simply to
apply the written law, be it the Constitution or enacted
legislation, to the case before them.
But when Federal judges deviate from the written law and
decide cases based upon their own policy preferences or views
of what is right and wrong, they in effect make up laws of
their own, despite the lack of legitimate authority for doing
so. When judges twist the language of legislation to enact the
policies they prefer, they usurp the role of the legislature
and destabilize the balance of power.
Even worse, when they read their own preferences and
political agenda into the Constitution, judges directly thwart
the will of the people, and voters have no recourse. As a
result, entire spheres of policymaking are, in effect, ruled
off limits from the people's elected officials and instead are
usurped by imperial judges--all-knowing guardians of justice.
This is what we call judicial activism and it represents a
direct attack on the democratic principles that are central to
our constitutional system, and it is wrong whether it comes
from the left or from the right.
These are reasons why the Senate's appropriate role is not
to probe the political ideology of nominees, but rather to make
sure that the nominees will follow the law, not personal
conviction, when deciding cases. When I discharge my
responsibilities as a U.S. Senator to advise and consent, that
is the test I apply, not political affiliation or views on any
particular issue, but philosophy on a judge's limited role in
our constitutional system of checks and balances.
Now that I have explained why we must keep political
ideology out of the confirmation process, I would like to
discuss some recent attempts to reinvent history by repeating
the convenient myth that I, as chairman, blocked President
Clinton's judicial nominees on the basis of political ideology.
At the outset, I must note that the confirmation statistics
from the past 6 years demonstrate that the Republican-led
Senate appropriately put aside the politics of judicial
nominees. During President Clinton's two administrations, the
Senate confirmed 377 judicial nominees. This is only five fewer
than the number confirmed under President Reagan, who holds the
all-time record. There would have been three more than
President Reagan had it not been for objections by Democrats to
their own judges on the floor for various reasons.
This comparison is particularly relevant to the question of
political ideology when you consider that President Reagan
enjoyed 6 years of Senate controlled by his own party, while
President Clinton faced 6 years of a Republican-controlled
Senate. The overall rate of confirmation speaks for itself: the
Senate confirmed 90 percent of President Clinton's judicial
nominees. If Republicans had based their votes on partisanship
or litmus test issues, there would have been but a few Clinton
judges sitting on the Federal bench today, not a near record.
How did we accomplish the confirmation of 377 Clinton
judicial nominees? Well, for one thing, I held prompt hearings
on many nominees. For example, 20 Clinton judicial nominees
received a hearing within 2 weeks of their nomination, 34
Clinton judicial nominees received a hearing within 3 weeks of
their nomination, and 66 Clinton judicial nominees received a
hearing within a month of their nomination.
In many months, I also held multiple confirmation hearings.
For instance, in 1997 we held 3 hearings in September, 3 in
October, and 3 in November. We often held hearings for more
than 10 nominees in a month, and in other months as many as 15
or 16 nominees received a hearing. As a result, 377 of
President Clinton's nominees are sitting judges on the Federal
bench today, many of whom have political philosophies
completely at odds with my own and other Republicans on the
committee, in general.
Given this committee's recent track record, it is clear
that the real question posed by this hearing is not the role of
political ideology in past confirmations, but rather whether
the Committee should now begin injecting political ideology
into the process.
Mr. Chairman, I read press reports on a Farmington,
Pennsylvania retreat that 42 Democratic Senators attended in
late April. According to the reports, a panel discussed the
need to scrutinize judicial nominees more closely than ever.
One person who attended was quoted by the New York Times as
reporting that ``they said it was important for the Senate to
change the ground rules and there was no obligation to confirm
someone just because they are scholarly or erudite.'' It
appears that today's hearing may represent the first step in a
troubling attempt to accomplish the goal of changing the ground
rules by altering the longstanding practice of avoiding any
examination of political ideology beyond the question of
whether nominees could put such ideology aside.
President Bush has indicated that he will not use social
policy litmus tests in selecting judicial nominees, including
nominees for the Supreme Court. Rather, he is focusing on
qualifications, temperament, integrity, and a commitment to the
rule of law. I believe this is consistent with the approach
that our Founding Fathers envisioned and that Americans expect.
I hope that my colleagues in the Senate will follow the same
principles in their advice and consent role in confirming
nominees.
Mr. Chairman, can I have just a few more minutes? I
apologize to you, and I will get out of your hair the minute I
finish. Is that OK?
Chairman Schumer. As long as you keep the second part of
the promise for a long period of time, we will go with the
first one.
[Laughter.]
Senator Hatch. It is my nature to not get in your hair.
In addition to the philosophical importance of judicial
restraint in our system of Government and to the wide public
support for an independent judiciary, there is also a very
practical reason to keep politics out of the confirmation
process. No one quite knows how to assess politics in this
context.
Take, for example, the hearing held in 1990 concerning the
nomination of then-Judge David Souter for the Supreme Court. At
that hearing, Kate Michelman, Executive Director of the
National Abortion Rights Action League, testified that ``the
Supreme Court is on the very brink of taking away an
established fundamental constitutional right'' and that ``we
are just one vote away from losing our right to choose.''
Ms. Michelman said that she had ``conducted a thorough and
searching examination of his record'' and concluded that she
was ``intensely concerned that, if confirmed, Judge Souter
would destroy 17 years of precedent and cast the deciding vote
to overrule Roe v. Wade.'' I argued that Judge Souter would be
fair and would follow precedent. As everyone knows, the holding
in Roe has been upheld since then and Justice Souter has proven
to be a very reliable vote for the pro-choice position.
I respect Ms. Michelman and she has a right to believe what
she wants. She is certainly not alone in being unable to use a
nominee's political views, or perceived political views, to
predict how that nominee will rule on future cases once
confirmed to the bench. Indeed, history is replete with
examples of judges who surprised even the very Presidents who
appointed them.
President Eisenhower nominated liberal icons Earl Warren
and William J. Brennan, Jr. If I recall correctly, President
Eisenhower said he only made two mistakes in his presidency and
they are both sitting on the Supreme Court. Now, that may have
been his point of view. I don't know, but I happen to respect
both of them. I may not have agreed with a number of their
opinions, but they were both excellent jurists.
President Nixon nominated Harry A. Blackmun, the author and
defender of Roe. And President Ford nominated John Paul
Stevens, whom some consider to be the Court's most liberal
Justice. Two of President Reagan's nominees, Sandra Day
O'Connor and Anthony M. Kennedy, have voted repeatedly with
Justice Souter to uphold Roe v. Wade.
It is even problematic to characterize the Court itself. It
is fashionable in some circles to refer to the current Supreme
Court as ``conservative'' and to conclude, despite the
evidence, that the change of one Justice will inevitably result
in a seismic shift in the Court's decisions.
But a thorough review of the cases demonstrates that the
Rehnquist Court defies labeling and is marked instead by
shifting and often unpredictable coalitions. In fact, while
many conservatives expected that Reagan and Bush nominees would
turn back Warren-era precedents, the reality is that those
major precedents have not been overturned.
Even the Washington Post noted in an article after last
summer's major decisions were handed down that the Court
``mixes its high-profile messages.'' What this illustrates is
that history often proves wrong those who seek to label the
political ideology of individual judicial nominees as well as
courts as a whole.
In sum, Mr. Chairman, the change of power in the Senate has
focused media attention on the judicial confirmation process,
as well it should. At the same time, the Democratic Senate
leaders, despite a few intemperate comments by some members,
have recently pledged to treat President Bush's judicial
nominees fairly, and I personally honor and appreciate those
sentiments.
This would be a particularly bad time to make the historic
misstep of injecting political ideology into the confirmation
process. Instead, we ought to renew our traditional focus of
evaluating competence, fairness, integrity, and above all a
commitment to enforcing to the Constitution and laws of this
country as promulgated through our constitutional democracy.
Mr. Chairman, I also ask that a book review I wrote in 1986
in the Harvard Law Review on this subject, which commented on
my good friend Professor Tribe's book, be made part of the
record.
Chairman Schumer. Without objection.
Senator Hatch. I want to thank you again for holding this
hearing. In spite of my views here, this is an important
hearing and this matter should be discussed and it should be
considered. But I want people to understand that President
Clinton did not suffer by this committee. There were 41
holdovers left at the end of his 8 years. Nine of those were
appointed within a short time before the end of the
Congressional session, knowing that there was not enough time
to process them. Of the 31 more, there were some problems with
some, and some I just couldn't get through.
Contrast that with when the Bush Congress ended and the
Committee was controlled by Democrats. There were 97 vacancies,
there were 54 holdovers, and I think 6 of those were nominated
within a short enough time that they could not have been
considered. But that still left 48 holdovers, compared to our
31.
Now, the point I am trying to make is this: President
Clinton won his first election with 43 percent of the vote. Did
that mean that we as Republicans should have said he did not
have the right really to appoint judges that he felt were very
competent and important to be appointed to the bench and to the
Supreme Court? No. I think he won his second election with less
than 50 percent of the vote.
This last election was a close vote, but does that mean
that President Bush should not be given fair consideration on
all of our judgeship nominees, especially if he really is
trying to do what I have just outlined here as his intent? The
answer is no. We should treat whoever is the President fairly
and we should not allow ideological concerns, if they are
otherwise qualified, to interfere with the confirmation
process, even though I know that there are always some in the
Senate who have voted on pure ideological bases.
So I wanted to make these points because I have been very
concerned about the judicial confirmation process throughout my
25 years in the Senate and on this committee. I really feel
deeply about it, and I hope that we can accord respect to
President Bush's nominees just as we have, I think, to
President Clinton's nominees.
I want to thank you so much, Mr. Chairman. You are
wonderful to let me take this time.
Chairman Schumer. Thank you, Orrin. Let me just say first
that this is not a hearing on who delayed who. There are
different views about that, but you are not on any kind of
trial here in any way. I mean, we have stayed away from that
issue.
What we want to do is try and figure out, given the fact
that there has been such discontent with how hearings and
nominations have proceeded forward to have a thorough
examination--as you see here from the list of witnesses, you
have a Democratic counsel and a Republican counsel agreeing on
this question. You will hear some tremendous testimony from
other witnesses, some of whom agree, both on the left and right
that ideology should be part of the process, some of whom
disagree. That is a very important issue. That is not a litmus
test. That is not rejecting a nominee because of one particular
view.
I have been surprised at the defensive tone of some of my
colleagues here. This is a fair-minded attempt to explore where
we go, and the Constitution, if you read the Federalist Papers
nd others--and our witnesses will address that--show that there
has been a great deal of disagreement on this all along.
I would just ask one question because we do want to finish
this panel, in fairness to the schedules of others, before the
vote, and we will submit others for the record.
My question goes primarily to Mr. Gray, but I would be
happy to hear Mr. Cutler answer it. Both of you have argued
that ideology should not play a role in the process, that we
should go for the qualifications of the judge, the intellectual
excellence. As Senator Feingold mentioned, I have had three
qualities for judges which many of my colleagues have adopted
that I have chosen to bring forward. They were legal
excellence, which we all agree with. The second was moderation.
I don't like judges too far left or too far right. And the
third was diversity. I don't think we should have a bench of
all white males.
I don't think we have too much disagreement on No. 1 or No.
3. We may not even have disagreement on No. 2 in terms of
everybody agreeing. I think somebody here mentioned that
moderation is a good idea, but how do you find that moderation
and how do you measure that moderation?
Now, let's just assume for the sake of argument--and I
would ask this of Mr. Gray--that the White House, the
President, whether it be Democratic or Republican, insists on
ideology, that the nominees they send for the Supreme Court and
for the bench by and large seem to have one consistent judicial
philosophy which would be regarded by a Senator as clearly out
of the mainstream.
Should Senators then have the right, the ability, the
obligation to question that nominee on not simply their legal
competence, not simply would they uphold the Constitution, but
what their judicial philosophy is, which you would agree with,
and where it takes them? That is the question.
During the Eisenhower era, as clearly mentioned by my
colleagues, and even during the Nixon and Ford eras, there
seemed to be much less of an ideological prism by which judges
were submitted. Excellence was the governing criteria.
It seems to some of us, by the preliminary renderings, by
what the President said in his campaign, and by his initial
nominations that ideology is playing a far greater role,
whether or not they were asked specific questions about
specific cases. I think that is a strawman in terms of the
nomination.
How do we respond if, just assuming arguendo, that the
White House is setting up much more of an ideological prism as
to whom they would nominate?
Mr. Gray. I can't really accept your premise that this
current White House is doing something new in terms of
ideology. I don't accept----
Chairman Schumer. Let me just read you a quote from
yourself in the Wall Street Journal and you can interpret. You
said, ``If you think you have a legislative legacy and you
didn't take care of the judicial side, you could lose it in the
courts. I wouldn't think President Bush would trim his sails to
accommodate the new majority in the Senate.'' That seems to me
to be logical, practical and----
Mr. Gray. Well, he shouldn't apply a reverse litmus test.
He should do what he thinks is right, and if the Senate is
going to start imposing a litmus test, then I think there is a
problem. And I don't think there is any sign so far that I know
of that suggests that the nominations that have already been
made are somehow qualitatively, intellectually, ideologically
different than any prior President. I just don't think that
that case can be made.
Certainly, there are ways of ascertaining a person's
approach toward the law. And the basic question, I suppose,
would be, which I say in my testimony is perfectly legitimate,
do you think that we ought to interpret law and not make them.
A lot of nominees over the years have published lots of
writings and you can inquire as to those in the hearings, and
you will and you should and you have in the past.
I think if there were to emerge a candidate who really did
have offbeat, extreme views, not about a specific case but
about a general approach to life, I think that that would
emerge and that would become clear. To paraphrase my partner,
Lloyd, who paraphrased Justice Stewart, I think you would know
it when you saw it. But I don't think, going in, you can set a
standard for that, and it probably will happen very, very
rarely.
I would say, of the ones that I know have been nominated by
the current White House, I don't think there is an unusual
individual in the group that has been nominated so far. I
really don't think so.
Chairman Schumer. So again for the sake of argument, the
White House has a strict guideline, whether it be left or
right, not a litmus test, which tends to mean one issue, but
they are just nominating people of a particular ideological
caste.
Mr. Gray. Well, that is not----
Chairman Schumer. Well, let's just assume it for the sake
of argument. I quoted your quote here and many of us think that
may be happening in the White House now, but let's not debate
that. That is not the purpose here.
Let's just assume it was. Would it be appropriate for the
Senate to ask questions about that and have that enter into
their consideration as to nominations, or should the Senate, as
long as they were legally excellent, just approve them? That is
the fundamental question we face here.
Mr. Gray. I think it is inappropriate to ask questions
about specific cases and about specific areas of the law, such
as federalism, such as Federal-State relations, such as church/
state, because that would be to suggest that you are asking for
a pre-commitment. The White House doesn't do this. No White
House has done it in the past. I do not believe the current
White House is doing it.
You have a right to ask them, if they are doing it. And if
they are doing it, I think you have a right to say you are
asking for a commitment yourself. I don't think you are going
to find that to be the case, but I do think it is a legitimate
inquiry. Your questionnaire asks the very same question.
Chairman Schumer. So you would say just to, for instance,
ask a nominee their general philosophy of church/state would be
inappropriate? That is what you just said.
Mr. Gray. Well, you can get into questions of degree and we
can sit here and argue about----
Chairman Schumer. I am not asking about a specific case.
Mr. Gray. But asking about anything that begins to trench
on a specific case, I think, would be inappropriate.
Chairman Schumer. Let's say it didn't.
Mr. Gray. Then I think it is OK.
Chairman Schumer. Mr. Cutler?
Mr. Cutler. I just want to add one word, and that is more
by accident than design we have a Supreme Court today that
satisfies most of your criteria. And to the extent that it is
design, it is the design of the Constitution itself and the
political system, at least once we adopted the two-term
amendment.
Just in the nature of politics in the country and a two-
party system, power shifts from one party to the other, and
often the party in the White House has to leave it after 4
years or 8 years, or maybe in the Reagan-Bush case 12 years. If
it were a matter of serving 10 terms as President, one party in
control, I think there would be very serious question. By
design, the composition of the Supreme Court could change in a
left direction or a right direction, in what we have been
calling an ideological direction.
Chairman Schumer. Thank you. I am going to submit other
questions for the record in the interest of time.
I would ask my colleagues, because we have about 10 minutes
to the vote, if we could wrap up between the two of you in 6, 7
minutes and then go vote.
Senator Sessions. Thank you, Mr. Chairman. I think it is
important that we go ahead and talk about this. There has been
so much talk outside about it. If there is any concern on the
Republican side about where we are going, I think it would
arise from the fact that most of us felt that the Bork hearings
and the Rehnquist and Thomas hearings were unfair, that it
consisted of panels attacking nominees in ways that I don't
believe were justified and were really unseemly in many ways.
Then we had earlier this Congress when the Democrats were in
the majority the Ashcroft hearing which followed that same
pattern. I was really disturbed about that.
But back to the subject, I am very much impressed, Mr.
Cutler, with your comments and the fact that you have been on
two national commissions that have dealt with this. I practiced
before Federal judges full-time for 15 years when I was a
United States Attorney and Assistant United States Attorney. I
had to go before them everyday. I have been before State
judges, and Federal judges are better, in my opinion, in
general. You get the law ruled on. If you are right on the law
and you have got your brief and the evidence should go in, the
evidence goes in. It is less certain of that in most State
courts, in my view. I have criticized Federal judges, but, in
fact, I respect them to the greatest degree.
I want to pursue a little bit the Miller Report you
referred to and the comments that you made. As a practitioner
of the law, I think this is so close to being correct about
what we should think about. The report said, and this was 1996,
``What is most important is the appointment of judges who are
learned in the law, who are conscientious in their work
ethic''--it is hard work to be a Federal judge today; if it
wasn't in the past, it is today--``and who possess what lawyers
describe as `judicial temperament.' That term, difficult to
define, essentially has to do with a personality that is
evenhanded, unbiased, impartial, courteous yet firm, and
dedicated to a process, not a result. The law will be fairly
read and applied, irrespective of the judge's personal views as
to its wisdom. Where the judge is a finder of fact, the facts
will be fairly found.''
That is a good one, too, because are given power to find
facts and then they go up on appeal, and some judges are known
to doctor the facts, making it difficult to get a fair review.
Those are the kinds of people I think we want, and I believe
your remarks--and I was reading from your remarks and from the
report--are right on point.
I would want to mention something else you said in your
remarks. You quoted the Commission: ``The Commission believes
that it would be a tragic development if ideology became an
increasingly important consideration in the future. To make
ideology an issue in the confirmation process is to suggest
that the legal process is and should be a political one. That
is not only wrong as a matter of political science; it also
serves to weaken public confidence in courts.''
I am quoting: ``Just as candidates should put aside their
partisan political views when appointed to the bench, so too
should they put aside ideology. To retain either is to betray
dedication to the process of impartial judging. Men and women
qualified by training and experience to be judges generally do
not wish to and do not indulge in partisan or ideological
approaches to their work.''
Mr. Cutler, that is coming awfully close to what I think
would be a good evaluation process. I take it you are concerned
if we were to raise the profile of ideology in the process.
Mr. Cutler. Well, I think it is your absolute right as
Senators in confirmation to withhold or deny consent to the
appointment on whatever you think is important. I do believe it
is remarkable, despite the gauntlets that we ask nominees for
the bench to run--the intrusiveness about the financial
questions, the efforts to get dirt on their personal conduct,
and so forth--that we have as many very good, judicious,
temperamentally of the right disposition on our Federal bench.
It is really remarkable when you consider the level of the
salaries that are paid and the intrusiveness of the vetting
process today.
Senator Sessions. Thank you very much. Our time is short.
Chairman Schumer. Thank you.
Mr. Kyl?
Senator Kyl. Thank you, Mr. Chairman. I appreciate your
courtesies to me. I thank both of these witnesses. I compliment
you both on your testimony. I agree with both of you and I
sense that both of you are in substantial agreement.
I would just close, Mr. Chairman, by noting that on one of
your subsequent panels you have a very erudite professor who
ideologically is not in sync with my ideological views, and yet
has brought profound erudition to a subject on which I am very
committed and has contributed significantly in a way that is
consistent with my ideology. I have in mind Dr. Tribe.
Professor Tribe and I probably wouldn't end up in the same area
on the court on some issues, and yet I know at least on one
issue we would be very much together.
So I just raise this to suggest that in trying to create
these delicate balances we had better be a little careful
because there are so many different kinds of issues that come
before us, it is a little difficult for us as politicians, I
think, to make those judgments in advance.
Thank you very much again for your courtesy.
Chairman Schumer. Thank you, and I appreciate moving along.
We are going to vote. We are going to start with the second
panel, with Professor Tribe, and I will be back in 10 minutes
to start that. We will do the two votes quickly. I want to
thank Mr. Cutler and Mr. Gray for being here.
Thank you.
[The Subcommittee stood in recess from 11:45 a.m. to 12:13
p.m.]
Chairman Schumer. I want to thank the witnesses for
indulging us. We have finished our votes and I think we can
move right forward. I just have two little bits of
housekeeping.
The first is unanimous consent to put Senator Grassley's
statement in the record, without objection.
Second, just a question that I have been asked by some:
what do we mean by ideology? I am sure some here will discuss
it. What it means is your views on not just broadly that you
would support the Constitution, but what is your view of
privacy, what is your view of how broadly or narrowly the First
or Second Amendments should be interpreted, what is your view
of federalism and the amendments that relate to the
relationship between the State and the Federal Government. And
there is also, in my judgment, nothing wrong with asking about
decided cases, such as Roe v. Wade, such as Lopez, such as so
many of the others that have come up.
Again, I was sort of surprised at the defensive tone that
some of my colleagues had here. To equate asking about ideology
and then saying that would be a litmus test is a stretch, a far
stretch. I am just wondering why they are so worried about
ideology being brought up.
We will hear from, as I say, a wide variety of witnesses
here who have different views on that issue. I am not going to
read all the introductions at once, since there are so many of
you, so I will wait and do each one at a time.
So our first witness is Professor Laurence Tribe. Professor
Tribe is well-known here. He is presently the Ralph S. Tyler,
Jr. Professor of Constitutional Law at Harvard Law School. He
graduated summa cum laude from Harvard College, magna cum laude
from Harvard Law School, was clerk for Justice Potter Stewart
of the Supreme Court, and has authored many books, including
American Constitutional Law, Constitutional Choices, God Save
This Honorable Court: How the Choice of Supreme Court Justices
Shapes our History, not to mention many other scholarly
articles. He has been the lead counsel in over 25 cases before
the Supreme Court, including this past year Bush v. Gore. Other
cases have included AT&T v. Iowa Utilities Board, Baker v.
General Motors, Vacco v. Quill, and Rust v. Sullivan.
Mr. Tribe, thank you for coming today. I look forward to
your testimony. Since we have a large panel, we have asked each
witness to try and stay within 7 minutes, but it is such an
important issue and your testimonies are all so good, I am not
going to just shut you down at the end of that. Maybe after
eight, I will.
Professor Tribe?
STATEMENT OF LAURENCE H. TRIBE, TYLER PROFESSOR OF
CONSTITUTIONAL LAW, HARVARD LAW SCHOOL, CAMBRIDGE,
MASSACHUSETTS
Mr. Tribe. Thank you, Mr. Chairman. It is an honor to
testify before this subcommittee. I won't repeat what is in my
prepared statement. I assume it will be part of the record. In
the few minutes that I have, I would like to touch on what I
think are the highlights and I would like to begin with some
observations arising out of the testimony this morning,
hopefully to puncture a couple of balloons or myths.
First of all, I don't think anyone here, at least certainly
not me, is suggesting that ideology, whatever it might mean,
suddenly be injected into the process. I think you have been
wise, Mr. Chairman, to stress that you are talking about
surfacing and making a specific matter of inquiry out of
something that is otherwise shadowy and in the closet and sub
rosa that is ordinarily on everyone's mind, but not necessarily
on everyone's lips, that is often an excuse for character
assassination, for digging around for some irrelevant dirt
about someone's personal past, when what you really object to
is her view of federalism or the fact that he believes that
everything in the Constitution is written down except States'
rights, which can be protected even though they are not
enumerated.
Secondly, this is not a matter of payback for what the
Republican Senate may or may not have done to Clinton nominees.
I saw that as an overwhelming subtext this morning. This has
nothing to do with that. I think we would be here even if no
one had any complaint about the way the Republicans treated the
nominees.
I do want to say as an aside, because I just can't resist
the illogic of what I have heard, the record of the Senate's
confirmation of some 377 Clinton nominees tells you absolutely
nothing. When powerful Senators, members of this committee, say
to other Democratic Senators you tell the White House they
better not send us any liberals or they are dead, you can
expect the group of people who come out of the White House to
be moderates and to be easily confirmed and to be non-
controversial, especially when we had a President who didn't
make a very big deal of using the judiciary to advance his
agenda.
I also want to say that when most of us refer to ideology,
we are not talking about political philosophy or political
views. I have spent 32 years as a law professor battling the
claim of the critical legal studies people that law is just
politics by another name. I don't believe it. I believe that
there is such a thing as law and legal thought, and that it
does make sense to ask what someone's approach to legal issues
is, but not in terms of these ludicrous platitudes. If I, with
all respect may say it: would you follow the law? Duh.
[Laughter.]
Mr. Tribe. Will you upheld your oath? Of course. Do you
believe in precedent? Yes, I have seen some. But a question
like, how will you go about deciding which precedents should be
overturned and which shouldn't, what approach do you think
justified overturning Plessy and Brown, what would it take to
make it justifiable to overrule Roe v. Wade, and when a nominee
says, oops, I can't talk about that because that might have
something to do with what I will do as a judge, it seems to me
at that point you ought to really scratch your head and say, of
course it would have something to do with what you would do as
a judge; I wouldn't be asking you otherwise. But it doesn't
follow that you compromise your independence or your integrity
by sharing your thought process.
After all, the people who are now sitting on the Supreme
Court are already on record as having voted on a lot of these
issues. We don't say that fatally compromises their integrity;
they had better recuse themselves next time an issue about Roe
v. Wade comes along.
The next point I want to make is that paying attention to
ideology does not mean quizzing people on specific cases or
making up a litmus list of some kind of orthodoxy. In
particular, I was interested in the litmus test that Senator
McConnell put up in his prepared remarks on the board over
there, the six-point list which he offered as an only slightly
caricatured version of what he perceived as liberal orthodoxy.
I looked at it and I concluded it would certainly filter me
out. I would flunk on at least three of them, on the First
Amendment part, the Second Amendment part, and the racial quota
part. I think the real litmus test that people like me flunk is
the litmus test that most Republican Presidents have used, but
have kept in their vest pocket, and have tried, not always with
success--witness David Souter--to implement in their choice of
Justices. And for this Committee to engage in unilateral
disarmament and to say you can do it, but we can't, or at least
we can't talk about it, is really insanity, it seems to me.
Now, let me turn just to a couple of other things. I think
it should be clear that we are not talking about anything new.
The structure and the history of the Constitution, as I think
you have emphasized and as Senator Feingold emphasized,
contemplates a double-barreled check on the powers of the
politically unaccountable third branch of Government; that is,
a check through the President with his power to nominate judges
and through the Senate with the power to advise and consent or
to withhold its consent.
The Senate's role in that process has historically, from
the Framing, been a proactive role, not limited to checking
intellect and integrity. In fact, in the Constitutional
Convention of 1787, the power of appointment was nearly given
to the Senate, appointment of Supreme Court Justices, until the
more practically minded of the Framers recognized that to give
a hydra-headed body like the Senate the requirement of agreeing
on a first choice would be impractical. So that was given to
the President, but the Senate was not reduced to a potted
plant. The Senate was to have an active role in advice and
consent, and that active Senate role, despite myth to the
contrary, has served the Nation well.
Mr. Chairman, you used the example, and I think it should
be underscored, that our first President, George Washington,
named John Rutledge to be Chief Justice. The Senate, for
reasons that were fundamentally ideological, indeed more
ideological in the political sense that I am advocating,
rejected his nomination. The result was hardly a disaster. John
Marshall, the great Chief Justice, was the one who took that
seat.
I cannot resist saying something about the episode with
Robert Bork. I think that the Right has succeeded in revising
history on that matter. It has succeeded indeed in creating a
word, to ``Bork.''
I will just go on for a moment, Senator.
Chairman Schumer. Please. That says that you still have 2
minutes left and I am willing to give each of the witnesses
more than that.
Mr. Tribe. OK, thanks.
The new word, to ``Bork,'' which sort of means unfairly to
attack through slander about character--that is not what
happened to Robert Bork. One could agree or disagree with the
way the Senate went, but ultimately the Senate rejected him
because it thought that he didn't believe in privacy as an
element of the Constitution. He believed in a Scalia-like way
of reading the document. His views were what many Senators
would have regarded as an unacceptable part of the spectrum,
and they were right.
His post-rejection writings make clear he was even more
conservative than the Senators who rejected him thought. The
result was we got Justice Kennedy. He may not be a Justice
Brennan, but he is not a Justice Scalia, and I think that helps
balance the Court.
The other large point that I think I really want to make is
how contextual all of this is. During the periods of our
history when the President and Senate have been of largely one
mind--Lyndon Johnson and the Senate he had for a period, and
Reagan and part of what he had to work with--the Senate can
afford to relax its independent role. It checks to see that
certain qualifications of character and integrity and intellect
are met, but it doesn't have to really worry about point of
view.
But when the President has a powerful ideological program
which is hardly that of the Senate, especially when he is put
in power by a closely divided vote of a Court exercising its
disdain for democracy, a disdain of the very sort that it
exercises when it invalidates one after another act of
Congress, then vigilance is called for, and that is the final
point I want to make.
It is simply not true that activism is a characteristic
only of liberal courts. We now have the most activist Court, by
any objective measure, like the number of acts of Congress
invalidated per month, on average, in at least 55 years. And
they don't just strike down these acts of Congress; they give
them the back of their hand.
You have elaborate findings about the need to protect the
elderly or the disabled or religious freedom, and the Court
says it is not our view, it is just anecdotal. It is utterly
contemptuous. Now, that is a kind of activism which does not
square with my idea of what it means not to legislate from the
bench, and it just shows how empty the platitudes are and how
important it is to get beneath the platitudes.
Given a Court that undeferential to Congress, that willing
that lightly to invalidate acts of Congress, to end an
election, to upset democracy, it would be, I think, an abject
abdication of the Senate's constitutional responsibility for it
not to bring ideology, in the sense of legal point if view,
very much to the surface, not as a litmus test but as a way of
deciding will this nominee on the whole--and each Senator has
to decide that for him or herself--endanger what I think the
Constitution is all about. That I think is your role.
[The prepared statement of Mr. Tribe follows:]
[Additional material is being retained in the Committee
files.]
Statement of Laurence H. Tribe, Tyler Professor of Constitutional Law,
Harvard Law School*
I am honored to have been invited to appear before this
Subcommittee of the Senate Judiciary Committee to shed whatever light I
can on the extremely important, and hopefully not too timely, topic of
the Senate's role in the consideration of presidential nominations to
the Supreme Court of the United States. I say ``hopefully not too
timely'' because I think it wise of the Senate, with such guidance as
the Senate Judiciary Committee through the agency of this Subcommittee
can provide, to focus its attention now--not when a vacancy arises or a
name is put forward--on the criteria to be applied in the confirmation
process, and particularly on the role of ideology in that process.
---------------------------------------------------------------------------
* For identification purposes only.
---------------------------------------------------------------------------
There is a difficult trade-off here, to be sure. In Washington, as
elsewhere, the squeaky wheel gets the grease. Focusing meaningful
attention on an issue before it becomes a problem, much less a crisis,
is difficult in the best of circumstances. Doing so when the issue is
as abstract and complex as that of confirmation criteria for Supreme
Court justices is more difficult still. Yet waiting until the matter is
upon us, complete with a name or a short list of names, with interest
groups and spinmeisters formidably arrayed on both sides, assures that
the discussion will resemble a shouting match more than a civil
conversation, and that every remark will be filtered through agenda
detectors tuned to the highest pitch. On balance, I believe that
addressing the question of the Senate's proper role under a veil of
ignorance--ignorance as to precisely when a vacancy will first arise,
which of the sitting justices will be the first to depart, and which
name or names will be brought forth by The White House--seems likeliest
to lead to fruitful reflection on how to proceed when the veil is
lifted and we are all confronted with the stark reality of specific
names and all that they might portend for the republic.
It is understandable that, partly because of the seemingly abstract
and speculative character of such a discussion in the absence of any
actual nominee, and partly because the more immediate question actually
facing the Senate Judiciary Committee is how best to evaluate a group
of nominees already put forward by the President to fill various
vacancies in the federal courts of appeals, this Subcommittee has
chosen to cast its inquiry more broadly than a focus on Supreme Court
nominations would indicate and has decided to include in its charge the
question of what role ideology should play in considering federal
judicial nominations generally. For that reason, at the conclusion of
my observations about my principal topic that of Supreme Court
nominations I will offer a few thoughts about the broader question that
is of interest to the Subcommittee. But because I want to preserve to
the degree possible the distinct advantages of separating the general
question of criteria from any particular nominee or set of nominees, I
will carefully avoid saying anything about any pending nomination and
will, until the end of my remarks, discuss only the matter of
nominations to the Supreme Court.
When my book ``God Save This Honorable Court'' was published in
1985 defending an active role for the Senate in the appointment of
Supreme Court Justices, the Court was delicately balanced, with
liberals like William Brennan and Thurgood Marshall offsetting
conservatives like William Rehnquist and Antonin Scalia. Yet, on the
inevitable book tour, I found quite a few otherwise well informed
people wondering why the composition of the Supreme Court was all that
big a deal, and why it shouldn't suffice for the Senate simply to make
sure that the President wasn't packing the Court with cronies and with
mediocrities. Having satisfied itself of the professional
qualifications and character of the President's nominee, some people
wondered, why should the Senate be concerned with that nominee's
philosophical leanings or ideological predispositions?
People seemed to view things differently when they were exposed to
the historical background showing that the Framers contemplated a much
more central role for the Senate in this process, and when they learned
that it was mostly the unwieldiness of having a collective body like
the Senate make the initial nomination that led the Framers, at the
last minute in the drafting process, to entrust the nomination to the
President and to leave the Senate with the task of deciding whether to
confirm or reject; that, even in the final version of the Constitution
as ratified in 1789, the Senate's task was not left wholly passive
(deciding between a thumbs-up and a thumbs-down) but was cast as the
role of giving its ``advice and consent;'' and that, with the exception
of an uncharacteristic lull in the last century, the Senate has
traditionally exercised its advice and consent function with respect to
the Supreme Court in a lively and engaged manner, concerning itself not
simply with the intellect and integrity of the nominee but with the
nominee's overall approach to the task of judging, and often with the
nominee's substantive views on the burning legal and constitutional
issues of the day. Those who initially assumed the Senate need not
concern itself with a nominee's ideology tended to view the matter in a
new light when reminded that, both in the formative days of our
nation's history, under presidents as early as George Washington, and
in recent decades, there has been a venerable tradition in which the
Senate has played anything but a deferential role on Supreme Court
nominations.
All of that registered with people back in 1985, but it wasn't
until the 1987 resignation of Lewis Powell and the confirmation battle
later that year over Robert Bork that the concrete stakes in this
otherwise abstract controversy came to life for the great majority of
the American public. In retrospect, although one can lament the ways in
which some interest groups and politicians--on both sides of the
question, frankly--exaggerated the record bearing on Judge Bork's views
and bearing on what kind of Supreme Court Justice he would have made,
the fact is that his confirmation hearings represented an important
education for large segments of the public on such fundamental matters
as the meaning of the due process and liberty guarantees of the Fifth
and Fourteenth Amendments to the Constitution, the relevance and limits
of the Ninth Amendment's reference to unenumerated rights, the
connection between various ways of approaching the Constitution's text
and history and such particular unenumerated rights as personal privacy
and reproductive freedom, the relationship between a tightly
constrained and literalist reading of the Constitution in matters of
personal rights and a more open-textured and fluid reading of the
Constitution in matters bearing on state's rights, and a host of other
topics of enduring significance.
For my own part, as one of the expert witnesses called to testify
about Judge Bork's constitutional philosophy and about the consequences
for the nation were he to gain an opportunity to implement that
philosophy as a Supreme Court Justice, I make no apology for anything I
said at the time. Knowing full well that my testimony would put me on
the enemies' lists of some extremely powerful people with very long
memories, I felt it my duty to testify to the truth as I understood it.
I would do the same thing again today. When the Senate finally rejected
the nomination of Robert Bork, many of his allies cried ``foul'' and
have since practiced decades of payback politics. Indeed, they have
even succeeded, with the aid of some revisionist history, in adding to
the vocabulary the highly misleading new verb, ``to Bork''--meaning,
``to smear a nominee with distorted accusations about his or her record
and views''--as though the predictions of the sort of justice Robert
Bork would have become were in some way misleading or otherwise unfair.
But the truth, as Judge Bork's post-rejection writings made amply
clear, was just as his critics had indicated. Unless being confirmed
would have caused him to undergo a radical conversion--something on
which the nation has a right not to gamble--his rejection, and the
subsequent confirmation of Justice Kennedy in his stead, meant one less
member on the far right wing of the Court and left Justice Scalia
(later with Justice Thomas) holding down the starboard alone. The
nation had held a referendum on the Borkian approach to reading the
Constitution of the United States, and the Borkian approach had
decisively lost. And, lest it be supposed that I review this history
simply to reprise a political episode that was painful for all
concerned, I should make plain that my purpose is altogether different.
It is to remove the fangs from the verb ``to Bork'' and to restore some
perspective, lest anyone be misled into beginning the debate over the
Senate's proper role with the erroneous premise that the Senate should
be less than proud of the last instance in which it rejected a Supreme
Court nominee on ideological grounds.
Today, it takes very little effort to persuade any informed citizen
that the identity of who serves on the Supreme Court of the United
States matters enormously--matters not simply to the resolution of
these large questions of how the Constitution is to be approached and
how its multiple ambiguities are to be addressed, but as well in the
disposition of the most mundane, and yet basic, questions of how we
lead our lives as Americans. Whether laws enacted for the benefit of
the elderly or the disabled are to be rendered virtually unenforceable
in circumstances where the violator is a state agency and the victim
cannot obtain meaningful redress without going to federal court;
whether people stopped in their cars for minor offenses like failing to
have a seatbelt properly attached to a child's car seat may be
handcuffed and taken by force to the police station where they are
arrested and booked and held overnight; whether police may use sense-
enhancing technologies like special heat detectors to peer through the
walls of our homes in order to detect the details of what we do there;
whether, having recognized that everything we do in the privacy of our
homes counts as an intimate detail when it comes to protecting us from
various kinds of search and surveillance, judges will nonetheless
continue to let state legislatures regulate the most intimate sexual
details of what we do behind closed doors with those we love; whether
government may forbid the kind of research that might prove essential
to the prevention and cure of devastating degenerative diseases
whenever that research uses stem cells or other tissues from embryos
created in clinics for infertile couples--embryos that would otherwise
be discarded without making such life-generating new knowledge
possible; what kinds of campaign finance restrictions are to be
permitted when the broad values of democracy seem pitted against the
specific rights of individuals and corporations to use their wealth to
purchase as much media time as money can buy; who is to be the next
President of the United States--these are just some of the questions
whose answers have come to turn on a single vote of a single Supreme
Court Justice.
The battle that was fought over the nomination of Judge Bork to
become Justice Bork was fought because the general approach to
constitutional interpretation that he seemed to represent attracted him
to some but frightened an even larger number. Most dramatic among the
anticipated consequences of his confirmation would have been the
addition of his vote and voice to the far right wing of the Court on
such issues as reproductive freedom, which the Constitution of course
never mentions in so many words. His confirmation, people came to
recognize despite his avowals of open-mindedness on all such matters,
would have meant the certain demise of Roe v. Wade, a decision whose
most recent application, in last year's ``partial birth abortion'' case
from Nebraska, was, after all these years, still 5 to 4--as are a large
number of crucial decisions about personal privacy, gender
discrimination, sexual orientation, race-based affirmative action,
legislative apportionment, church-state separation, police behavior,
and a host of other basic issues.
After the Supreme Court's highly controversial and I believe
profoundly misguided performance last December in the case of Bush v.
Gore--in which I should acknowledge I played a role as author of the
briefs for Vice President Gore and as oral advocate in the first of the
two Supreme Court arguments in the case--it's difficult to find anyone
who any longer questions why it matters so much who serves on the
Court. The significance of Bush v. Gore in this setting doesn't depend
on anybody's prediction of who would have won the vote-count in Florida
had the counting gone on without the Supreme Court's dramatic and
sudden interruption on December 9, 2000, or of who would have been
chosen the next President by Congress this January 6 if the Supreme
Court had let the constitutional processes operate as designed and if
competing electoral slates had been sent from Tallahassee, Florida to
Washington, D.C. The great significance of the case is to underscore
that, by a margin of a single vote, the branch of our government that
is least politically accountable-wisely and designedly so, when matters
of individual and minority rights or of basic government structure are
at stake--treated the American electorate and the electoral process
with a disdain that a differently composed Court would have found
unthinkable. So it was that, when push came to shove, and the Supreme
Court's faith in democracy was tested, the Supreme Court blinked. It
distrusted the people who were doing the counting, it distrusted the
state judges, it distrusted the members of Congress to whom the dispute
might have been thrown if it hadn't pulled down the curtain. And the
Court could get away with it, partly because nobody in the House or
Senate, to be brutally honest, relished the thought of discharging the
constitutional responsibility of deciding which electoral votes to
count and then facing his or her own constituents--and because the
people were growing weary of the no longer very sexy or novel topic of
dimpled ballots and hanging chads, and Christmas was just around the
corner, and, after all, everyone knew that the election was basically
too close to call anyway. Lost for some in all of that realism, I fear,
was the high price our democracy paid for the convenience of a Court
that was willing--no, not just willing, positively eager--to take those
burdens from our shoulders and simply decree a result. Among the
results is an unprecedented degree of political polarization in the
Court's favorability rating with the public--a rating that now stands
roughly twice as high among Republicans as among Democrats, surely an
ominous gap for the one institution to which we look for action
transcending politics.
This isn't the time or place to debate the details of Bush v. Gore,
a subject about which I have written elsewhere; I stress the case
because it shows at least as dramatically as any case possibly could
just how much may depend on the composition of the Court; how basic are
the questions that the Court at times decides by the closest possible
margins; and how absurd are the pretensions and slogans of those who
have for years gotten away with saying, and perhaps have deceived even
themselves by saying, that the kinds of judges they want on the Court,
the ``restrained'' rather than ``activist'' kinds of judges, the kinds
of judges who don't ``legislate from the bench,'' are the kinds
exemplified by today's supposedly ``conservative'' wing of the Court,
led by Chief Justice Rehnquist and supported in area after area by
Justices O'Connor, Scalia, Kennedy, and Thomas. Those are, of course,
the five justices who decided the presidential election of 2000. They
are, as well, the five justices who have struck down one Act of
Congress after another--invalidating federal legislation at a faster
clip than has any other Supreme Court since before the New Deal--on the
basis that the Court and the Court alone is entitled to decide what
kinds of state action might threaten religious liberty, might
discriminate invidiously against the elderly or the disabled, or might
otherwise warrant action by Congress in the discharge of its solemn
constitutional power under Section 5 of the Fourteenth Amendment to
determine what legislation is necessary and appropriate to protect
liberty and equality in America.
Some might be tempted, after watching the Court perform so poorly
in the pit of presidential politics, and after witnessing it substitute
its policy judgments for those of Congress in one legislative arena
after another, to imagine that, if we could only wave a magic wand and
remove all ideological considerations from judicial selection--both on
the part of the President in making nominations and on the part of the
Senate in the confirmation process--somehow the Olympian ideal of a
federal judiciary once again above politics and beyond partisan
reproach could be restored. For several reasons, that is a dangerous
illusion. First, there's no way for the Senate to prevent the President
from doing what Presidents from the beginning of the republic have
asserted the right to do, and what some Presidents have done more
successfully than others: pick nominees who will mirror the President's
preferred approach to the Constitution's vast areas of ambiguity.
Second, in dealing with those areas of ambiguity, there may or may not
be any right answers, but there most assuredly are no unique or
uncontroversial answers; invariably, in choosing one Supreme Court
nominee rather than another, one is making a choice among those
answers, and among the approaches that generate them. And third, with a
Supreme Court that is already so dramatically tilted in a rightward
direction, anything less than a concerted effort to set the balance
straight would mean perpetuating the imbalance that gave us not only
Bush v. Gore but the myriad decisions in the preceding half-dozen years
in which the Court thumbed its nose at Congress and thus at the
American people.
In an accompanying memorandum that I prepared for distribution this
April to a number of members of the Senate, I explore in greater detail
how these recent Supreme Court encroachments on congressional authority
have come about and what they signify. For purposes of my statement
today, suffice it to say that such encroachments are the antithesis of
judicial restraint or modesty; that the justices who have engineered
them are the most activist in our history; that holding them up as
exemplars of jurists who would never dream of ``legislating from the
bench'' is, to put it mildly, an exercise in dramatic license; and that
the judgments the Senate will have to make about the inclinations and
proclivities of prospective members of the Supreme Court must be
considerably more nuanced than the stereotypical slogans and bumper
stickers about activism vs. restraint, and even liberalism vs.
conservatism, can possibly accommodate.
Some scholars, including most prominently University of Chicago Law
Professor Cass Sunstein, who will also be testifying before you at this
hearing, have powerfully argued that an active, nondeferential, role
for the Senate in evaluating Supreme Court nominees is called for,
quite independent of Bush v. Gore, by the way in which the federal
judiciary in general, and the Supreme Court in particular, have been
systematically stacked over the past few decades in a particular
ideological direction- a direction hostile, for example, to the
enactment ofprotective congressional legislation under Section 5 of the
Fourteenth Amendment, and hostile as well to other ostensibly
``liberal'' or ``progressive'' judicial positions, on topics ranging
from privacy to affirmative action, from states' rights to law
enforcement. For Professor Sunstein, who will of course speak most
accurately and fully for himself, the active role the Senate ought to
play is exactly as it would have been had Bush v. Gore never been
decided.
Other scholars, most prominently Yale University Law Professor
Bruce Ackerman, argue that Bush v. Gore has thrown the process of
judicial appointment into what Professor Ackerman calls
``constitutional disequilibrium,'' so that, instead of two independent
structural checks on a necessarily unrepresentative and politically
unaccountable Supreme Court, we are now down to just one. Because, in
his view, the current Court must be acknowledged to have ``mediated''
the ``President's relationship to the citizenry''--by helping put him
in office by a 5 to 4 vote--``only the Senate retains a normal
connection to the electorate,'' and this demands of that body, as
Professor Ackerman sees it, that it shoulder an unusually heavy share
of the burden of democratic control, by the people acting through the
political branches, of the judicial branch to which we ordinarily look
to hold the balance true. Translated into an operational prescription,
the Ackerman position would recommend that the Senate simply refuse to
confirm any new justices to the Court before President Bush, as
Professor Ackerman puts it, ``win[s] the 2004 election fair and square,
without the Court's help.'' As a fallback, Professor Ackerman would
urge the Senate to consider any nominations President Bush might make
to the Court during his current term on their own merits, but without
what Ackerman describes as ``the deference accorded ordinary
presidents.''
Although I am intrigued by Professor Ackerman's suggestion, it
seems to me the wrong way to go, either in its strongest form or in its
fallback version. The strongest form would make sense, I think, only if
we were convinced that the justices who voted with the majority in Bush
v. Gore acted in a manner so corrupt and illegitimate, so devoid of
legal justification, that one could say they essentially installed
George W. Bush as president in a bloodless but lawless coup. But if we
believed that, then the remedy of not letting the leaders of that coup
profit from their own wrong of denying them the solace of like-minded
successors as they depart the scene--would be far too mild. If we
thought the Bush majority guilty of a coup, we should have to conclude
that they were guilty of treason to the Constitution, and that they
should be impeached, convicted, and removed from office.
Believing that what the Bush v. Gore majority did was gravely wrong
but not that it amounted to a coup or indeed anything like it--
believing that the majority justices acted not to install their
favorite candidate but out of a misguided sense that the nation was in
grave and imminent peril unless they stopped the election at once--one
would have to look to the Ackerman fallback position. But all it tells
us is something that I argued was the case anyway as early as 1985--
that the Senate should not accord any special deference to nominations
made by any President to the Supreme Court. Indeed, I go further than
does Professor Sunstein in this respect. As I understand his position,
he would have the Senate withhold such deference for reasons peculiar
to the recent history of the nation and of appointments to the federal
bench and especially to the Supreme Court over the past few decades.
Had we not lived through a time of Republican Presidents insistent on,
and adept at, naming justices who would carry on their ideological
program in judicial form, sandwiching Democratic Presidents
uninterested in, or inept at, naming justices similarly attuned to
their substantive missions, Professor Sunstein would apparently urge
that the Senate give the President his head in these matters and serve
only in a backseat capacity, to prevent rogues and fools, more or less,
from being elevated to the High Court.
In a world in which each position on the Supreme Court might be
given to some idealized version of the wisest lawyer in the land--the
most far-sighted and scholarly, the most capable of clearly explaining
the Constitution's language and mission, the most adept at generating
consensus in support of originally unpopular positions that come to be
seen as crucial to the defense of human rights--perhaps we could afford
in normal times to accept a posture of Senatorial deference, with
exceptions made in special historical periods of the sort some believe
we have been living through. But if we ever lived in a world where such
a universal paragon of justice could be imagined, and in which the
kinds of issues resolved by Supreme Court Justices were not invariably
contested, often bitterly so, between competing visions of the right,
that day has long since passed.
Today, regardless of whether past Presidents have acted or failed
to act so as to produce a Supreme Court bench leaning lopsidedly in a
rightward direction, and regardless of whether a majority of the
current Court has acted in such a way as to render the President whom
it helped to elect less entitled to deference than usual in naming the
successors of the Court's current members, the inescapable fact is that
the President will name prospective justices about whom he knows a
great deal more than the Senate can hope to learn -justices whose paper
trail, if the President is skillful about it, will reveal much less to
the Senate than the President thinks he knows. Given his allies and
those to whom he owes his political victory, as well as those on whom
he will need to depend for his re-election, the incumbent President, if
those constituencies expect him to leave his mark and therefore theirs
upon the Court, will try to name justices who will fulfill the agenda
of those constituencies--in the case of President Bush, the agenda of
the right--without seeming by their published statements or their
records as jurists to be as committed to that agenda as the President
will privately believe them to be. Presumably, the incumbent President
will look for such nominees among the ranks of Hispanic jurists, or
women, or both, in order to distract the opposition and make resistance
more painful. And certainly this President, like any other in modern
times, will select nominees who have already mastered or can be coached
in the none too difficult game of answering questions thoughtfully and
without overt deception but in ways calculated to offend no-one and
reveal nothing.
In this circumstance, to say that the burden is on those who hold
the power of advice and consent to show that there is something
disqualifying about the nominee, that there is a smoking gun in the
record or a wildly intemperate publication in the bibliography or some
other fatal flaw that can justify a rallying cry of opposition, is to
guarantee that the President will have the Court of his dreams without
the Senate playing any meaningful role whatsoever. Therefore, if the
Senate's role is to be what the Framers contemplated, what history
confirms, and what a sound appreciation for the realities of American
politics demands, the burden must instead be on the nominee and,
indeed, on the President. That burden must be to persuade each
Senator--for, in the end, this is a duty each Senator must discharge in
accord with his or her own conscience--that the nominee's experience,
writings, speeches, decisions, and actions affirmatively demonstrate
not only the exceptional intellect and wisdom and integrity that
greatness as a judge demands but also the understanding of and
commitment to those constitutional rights and values and ideals that
the Senator regards as important for the republic to uphold.
On this standard, stealth nominees should have a particularly hard
time winning confirmation. For proving on the basis of a blank slate
the kinds of qualities that the Senate ought to demand, with a record
that is unblemished because it is without content, ought to be
exceedingly difficult. Testimony alone, however eloquent and
reassuring, ought rarely to suffice where its genuineness is not
confirmed by a history of action in accord with the beliefs professed.
And testimony, in any event, is bound to be clouded by understandable
reservations about compromising judicial independence by asking the
nominee to commit himself or herself too specifically in advance to how
he or she would vote on particular cases that might, in one variant or
another, come before the Court. Interestingly, we do not regard sitting
justices as having compromised their independence by having written
about, and voted on, many of the issues they must confront year in and
year out; the talk about compromising judicial independence by asking
about such issues sometimes reflects unthinking reflex more than
considered judgment. But on the assumption that old habits die hard,
and that members of the Senate Judiciary Committee will continue to be
rather easily cowed into backing away from asking probing questions
about specific issues that might arise during the nominee's service on
the Court, it should still be possible to formulate questions for any
nominee, including tough follow-up questions, at a level of generality
just high enough so that the easy retreat into ``I'm sorry, Senator, I
can't answer that question because the matter might come before me,''
will be unavailing. And, to the extent such slightly more general
questions yield information too meager for informed judgment, the
burden must be on the nominee to satisfy his or her interlocutors that
the concern underlying the thwarted line of questioning is one that
ought not to disturb the Senator. That satisfaction can be provided
only from a life lived in the law that exemplifies, rather than
eschewing, a real engagement with problems of justice, with challenges
of human rights, and with the practical realities of making law
relevant to people's needs. When a nominee cannot provide that
satisfaction -when the nominee is but a fancy resume in an empty suit
or a vacant dress, perhaps adorned with a touching story of a hard-luck
background or of ethnic roots--any Senator who takes his or her oath of
office as seriously as I know, deep down, all of you do, should simply
say, ``No thanks, Mr. President. Send us another nominee.''
What this adds up to is, of course, a substantial role for ideology
in the consideration of any Supreme Court nominee. It would be naive to
the point of foolhardiness to imagine that the President will be tone-
deaf to signals of ideological compatibility or incompatibility with
his view of the ideal Supreme Court justice; ideology will invariably
matter to any President and must therefore matter to any Senator who is
not willing simply to hand over to The White House his or her proxy for
the discharge of the solemn duty to offer advise and consent.
As a postscript on the distinct subject of circuit court nominees,
it seems worth noting that, although such nominees are of course
strictly bound by Supreme Court precedents and remain subject to
correction by that Court, and although there might therefore seem to be
much less reason for the Senate to be ideologically vigilant than in
the case of the Supreme Court, three factors militate in favor of at
least a degree of ideological oversight even at the circuit court
level.
First, well under 1% of the decisions of the circuit courts are
actually reviewed by the Supreme Court, which avowedly declines to
review even clearly erroneous decisions unless they present some
special circumstance such as a circuit conflict. Especially if the
circuit courts tend toward a homogeneity that mirrors the ideological
complexion of the Supreme Court, that tribunal is exceedingly unlikely
to use its discretionary power of review on certiorari to police lower
federal courts that stray from the reservation in one direction or
another; it will instead focus its firepower on bringing the state
courts into line and resolving intolerable conflicts among the lower
courts, state and federal.
Second, there are a great many gray areas in which Supreme Court
precedents leave the circuit courts a wide berth within which to
maneuver without straying into a danger zone wherein further review
becomes a likely prospect. Even though no individual circuit court
judge is very likely to use that elbow room in order to move the law
significantly in one direction or another without a check from the
Supreme Court, the overall balance and composition of the circuit court
bench can have a considerable effect, in momentum if nothing else, on
the options realistically open to the Supreme Court and thus to the
country.
Third, in the past few decades, the circuit courts have
increasingly served as a kind of ``farm team'' for Supreme Court
nominations. On the Court that decided Brown v. Board of Education in
1954 there sat not a single justice who, prior to his appointment to
the Supreme Court, had ever served in a judicial capacity. Governors,
Senators, distinguished members of the bar, but no former judges.
Today, however, rare is the nominee who has not previously served in a
judicial capacity, most frequently on a federal circuit court. On the
current Court, only the Chief Justice lacked prior judicial experience
when he was first named a justice; and, of the other eight justices,
all except Justice O'Connor, who had served as a state court judge,
were serving on federal circuit courts when appointed to the Court. The
reasons for this change are many; they include, most prominently, the
growing recognition that ideology matters and that service on a lower
court may be one way of detecting a prospective nominee's particular
ideological leanings. Whatever the reasons, the reality has independent
significance, for it means that any time the Senate confirms someone to
serve on a circuit court, it may be making a record that, in the event
the judge should later be nominated to the Supreme Court, will come
back to haunt it. ``But you had no trouble confirming Judge X to the
court of appeals for the Y circuit,'' supporters of Supreme Court
nominee X are likely to intone. Keeping that in mind will require the
Senate to give fuller consideration to matters of ideology at the
circuit court level than it otherwise might.
The primary ideological issue at the circuit court level, however,
should probably remain the overall tilt of the federal bench rather
than the particular leanings of any given nominee viewed in isolation.
In a bench already tilted overwhelmingly in one direction--today, the
right--a group of nominees whose ideological center of gravity is such
as to exacerbate rather than correct that tilt should be a matter of
concern to any Senator who does not regard the existing tilt as
altogether healthy.
And one needn't be particularly liberal to have concerns about the
existing tilt. Just as a liberal who recognizes that people who share
his views might not have all the right answers ought to be distressed
by a federal bench composed overwhelmingly of jurists reminiscent of
William J. Brennan, Jr. or William O. Douglas--or even by a federal
bench composed almost entirely of liberals and moderates and few
conservatives--and just as such a liberal should doubt the wisdom, in
confronting such a bench, of adding a group of judges who would
essentially replicate that slant, so too a conservative who is humble
enough to recognize that people who share her views might not have a
lock on the truth should feel dismayed by a federal bench composed
overwhelmingly of jurists in the mold of Antonin Scalia or Clarence
Thomas--or even by a federal bench composed almost entirely of
conservatives and moderates and few liberals--and ought to doubt the
wisdom, in dealing with such a bench, of adding many more judges cut
from that same cloth. The fundamental truth that ought to unite people
across the ideological spectrum, and that only those who are far too
sure of themselves to be comfortable in a democracy should find
difficult to accept, is that the federal judiciary in general, and the
Supreme Court in particular, ought in principle to reflect and
represent a wide range of viewpoints and perspectives rather than being
clustered toward any single point on the ideological spectrum.
Indeed, even those who feel utterly persuaded of the rightness of
their own particular point of view should, in the end, recognize that
their arguments can only be sharpened and strengthened by being tested
against the strongest of opposing views. Liberals and conservatives
alike can be lulled into sloppy and slothful smugness and self-
satisfaction unless they are fairly matched on the bench by the
worthiest of opponents. It may even be that the astonishing weakness
and vulnerability of the Court's majority opinion in Bush v. Gore, and
of the majority opinions in a number of the other democracy-defying
decisions in whose mold it was cast, are functions in part of the
uniquely narrow spectrum of views--narrower, I think, than at any other
time in our history--covered by the membership of the current Court--a
spectrum which, on most issues, essentially runs the gamut from A
through C. On a Court with four justices distinctly on the right, two
moderate conservatives, a conservative moderate, two moderates, and no
liberals, it's easy for the dominant faction to grow lazy and to issue
opinions that, preaching solely to the converted, ring hollow to a
degree that ill serves both the Court as an institution and the legal
system it is supposed to lead. It is thus in the vital interest of the
nation as a whole, and not simply in the interest of those values that
liberals and progressives hold dear, that the ideological imbalance of
the current Supreme Court and of the federal bench as a whole not be
permitted to persist, and that the Senate take ideology intelligently
into account throughout the judicial confirmation process with a view
to gradually redressing what all should come to see as a genuinely
dangerous disequilibrium.
Chairman Schumer. Thank you, Professor Tribe, for excellent
and truncated testimony. And I would recommend everybody read
yours and all the other testimonies here.
Our next witness is Professor Stephen B. Presser. Professor
Presser's primary post is the Raoul Berger Professor of Legal
History at the Northwestern University School of Law. He
received his undergraduate and law degrees from Harvard
University and clerked on the United States Court of Appeals
for the D.C. Circuit. He is a Fulbright Senior Scholar at the
University College in London and serves as a professor in the
Kellogg School of Business, where he teaches some of the
Nation's leading executives in the Executive Master's of
Business Administration Program. He has also published numerous
books and articles on constitutional law.
Professor Presser, thank you.
STATEMENT OF STEPHEN B. PRESSER, RAOUL BERGER PROFESSOR OF
LEGAL HISTORY, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, CHICAGO,
ILLINOIS
Mr. Presser. Thank you, Mr. Chairman. It is an honor to be
here and a delight to appear before my own home State Senator
up there on the panel.
We are here really because of then-Governor Bush's campaign
promise that he would appoint judges who would interpret the
law rather than make it, and his statement that his judicial
models were Justices Scalia and Thomas. These two are the
Justices most closely associated with the interpretive
philosophy of effectuating the original understanding of the
meaning of the Constitution, and these two are those who most
consistently demonstrate the judicial philosophy Hamilton
outlined in Federalist No. 78.
Now, there have been suggestions that more judges like
Scalia and Thomas would be a danger to our Republic, that they
have some sort of far-right-wing agenda, that they are
undemocratic, that they are judicial activists who would, if
multiplied, threaten our civil rights. Nothing, I think, could
be further from the truth. There can be no danger posed by men
and women who conceive of the judicial role as Hamilton
conceived it, as implementing the will of the sovereign people.
President Bush more recently indicated, ``Every judge I
appoint will be a person who clearly understands the role of a
judge is to interpret the law, not to legislate from the
bench,'' as Senator Sessions and others pointed out a little
bit earlier. Paraphrasing from the Federalist, Bush stated that
``the courts exist to exercise not the will of men, but the
judgment of law. My judicial nominees will know the
difference.''
If this is the ideology of President Bush's likely
appointments, there is no terror in it. This is the traditional
manner of interpreting the Constitution and laws, and it is all
that Scalia and Thomas and most other Federal judges have had
as a judicial philosophy. In this ideology, there is no danger
unless one fears fidelity to the rule of law itself. And it
should be emphasized, in our Republic the rule of law is
nothing more than the formally expressed will of the people.
Hamilton wrote that it took a person of fit character to be
a Federal judge, and that such people could not be found in
great numbers. They had to have not only great knowledge of the
law, but also to have the courage of their convictions and the
ability to resist popular pressure that might lead them to
ignore their constitutional duties.
This Senate, exercising its constitutional advise and
consent function, must constantly be on guard against those who
would seek to influence the judiciary for particular partisan
purposes and who would seek to move the judiciary from its
constitutional role as a neutral arbiter of the laws and the
Constitution, the last point that Professor Tribe made, and I
agree completely.
Unfortunately, many comments, even some made here, seem
calculated politically to manipulate the judicial selection
process. It is important to understand just how the Framers
conceived of the senatorial role in advising and consenting on
judicial nominees. There was an important role to play, but the
Senate was not, has never been, and should not be co-
nominators.
The Senate's role is discussed by Hamilton in Federalist
No. 76, where he makes clear that in the appointments process
the Senate should be concerned primarily with the virtue and
honor of candidates. Hamilton states that the concurrence of
the Senate is required in order to be an excellent check upon a
spirit of favoritism in the President, and to prevent the
appointment of unfit characters from state prejudice, from
family connection, from personal attachment, or from a view to
popularity.
Hamilton also notes that the scheme of Senate approval will
reduce the chance that appointments will be made by the
President simply on the basis of ``his private inclinations and
interests.'' No one has suggested that these are President
Bush's motives, and it is impossible to understand how a pledge
to appoint judges who will operate pursuant to a judicial
philosophy that implements popular sovereignty and the rule of
law could be the abuse of Presidential power Hamilton had in
mind.
Now, of course, the Senate does have a very important role
to play in ascertaining that those appointed to the judiciary
are fit characters and persons of integrity, honor and virtue.
But Hamilton's comments mean that the Senate should not use its
own preferences for the production of particular results in the
courts, as opposed to the following of proper procedures for
determining the law as a litmus test for judicial appointments.
The Senate should not use partisan political ideology to
select judges. Instead, the Senate should insist on proper
judicial philosophy for nominees. Indeed, the genius of the
separation of powers in America is that law is different from
politics, and liberty and rights in this country are best
protected by maintaining that separation. It is difficult, but
it is enormously important, and Professor Tribe referred to the
problem as well.
Really, the issue here is not left or right, radical or
reactionary, or even liberal or conservative. The issue is the
separation of powers under the Constitution and whether a
nominee adheres to it or not. I urge this Subcommittee and the
Senate to preserve what Judge Learned Hand called our common
venture, the exercise of sovereignty by the American people and
their right to make their own laws and Constitution. The
philosophy of judging outlined by President Bush is no danger
to that popular sovereignty. It is the only means of
implementing it and the rule of law itself.
Thank you.
[The prepared statement of Mr. Presser follows:]
Stephen B. Presser, Raoul Berger Professor of Legal History,
Northwestern University School of Law
My name is Stephen Presser, and I am the Raoul Berger Professor of
legal History at Northwestern University School of Law. I hold a joint
appointment with the Kellogg Graduate School of Management at
Northwestern University, and I also teach in Northwestern's Weinberg
College of Arts and Sciences, in the History Department. I have been
teaching and writing about American legal history for the last twenty
seven years, I am the senior author of a casebook on American Legal
History and the coauthor of a casebook on Constitutional Law, as well
as a book on Supreme Court Justice Samuel Chase and one on
Constitutional Law theory. I have been privileged to testify before
many committees of the House and Senate on Constitutional issues. I
appear before you today, at the invitation of the Committee, to help
you consider the role of ideology in the judicial selection process.
Ideology and Judicial Philosophy
we should first try to understand what is meant by ``ideology'' in
the context of these hearings. The word has a variety of definitions,
but I will adopt one simple one from the dictionary, ``a systematic
body of concepts, especially about human life or culture.'' \1\ It
might also be helpful, initially, to draw a distinction between what we
might describe as an ideology of substance or results, and an ideology
of process. An ideology of results might be an appropriate means of
evaluating the elected officials in a government, particularly those in
the executive and the legislature, but an ideology of process would be
a more important means of evaluating the behavior of the judiciary. We
speak about such an ideology of process when we discuss what we more
commonly refer to as ``judicial philosophy,'' and it is that we are
really concerned with in these hearings.
---------------------------------------------------------------------------
\1\ Merriam Webster's Collegiate Dictionary 575 (10th
ed. 1996).
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The question of the appropriate judicial philosophy for our country
is one of the most crucial concerns for determining the fate of our
republic, and thus I regard this hearing as among the most important I
have been invited to attend. You have heard and will be hearing from a
variety of witnesses from the academy, from practice, and from the
political arena, and perhaps I can best serve you by sticking primarily
with the perspective of the Framers, which is that I know best.
The Framers believed that it was important, from time to time, to
return to first principles, and that is what we are doing this morning.
The two basic principles of the American political system are the
sovereignty of the people and the rule of law, and both figure
intimately in the question of judicial philosophy. As I understand it,
there is only one judicial philosophy of which the Framers' approved,
and that is to be found in Federalist 78, the famous justification for
judicial review written by Alexander Hamilton, in 1788.\2\
---------------------------------------------------------------------------
\2\ James Madison, Alexander Hamilton, and John Jay, The Federalist
Papers 436 (First published 1788, Penguin Books Reprint, 1987, Isaac
Kramnick, editor)
---------------------------------------------------------------------------
The Judicial Philosophy Suggested in the Federalist
Hamilton had to respond to critics of the proposed federal
constitution who were concerned that it gave too powerful a role to
federal judges, and that, in particular, federal judges might use their
great power to impose their own view of what the law should be on the
American people. The critics of the Constitution were particularly
worried that federal judges might obliterate the authority of the state
courts and the state governments, and replace the recently achieved
independent role of the states as primary domestic lawmakers with an
all-powerful central government.\3\
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\3\ For a collection of the contemporary arguments for and against
the Constitution, see generally Bernard Bailyn, editor, The Debate on
the Constitution (New York: Library of America, 1993) (In two volumes).
---------------------------------------------------------------------------
Hamilton responded to this criticism by emphasizing that it was not
the job of judges to make law, that their role under the Constitution
was simply to enforce the Constitution and laws as they were written,
according to their original understanding. By doing so, Hamilton
explained, federal judges would be acting as agents of the sovereign
people themselves, and would do their part in implementing the rule of
law. It was true that judges might sometimes be called upon to declare
statutes invalid because of the dictates of the Constitution, that is,
to declare, in the words we use today, that particular laws were
``unconstitutional,'' but their role in implementing the will of the
people as set forth in the Constitution required no less. The
Constitution itself set certain limits on what legislatures could do,
Hamilton explained, and when the legislatures exceeded those limits
they ceased to act pursuant to the will of the people. Instead of being
the agents of the people, as the Constitution dictated, in such
circumstances the legislature would wrongly be exercising greater power
than was authorized. It was then the job of the people's other agents,
the Courts, to reign in the legislatures.\4\
---------------------------------------------------------------------------
\4\ Federalist 78, supra note 2, at 437-440.
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When that kind of judicial review was done, Hamilton explained, the
courts would not be exercising ``will,'' but merely ``judgment.'' \5\
The only will that was important was the ``will'' of the sovereign
people themselves as set forth in the Constitution, or laws passed
pursuant to the Constitution, and the only job of judges was to enforce
that expression of the will of the people. Hamilton's justification for
judicial review, based on the sovereignty of the people, also
implemented another important political ideal of the constitution's
framers, the separation of powers. It was well understood, pursuant to
the theories of the Baron de Montesquieu, as valid then as they are
today, that liberty could not be preserved unless judges were barred
from legislating, law-making was left to the legislature and the people
themselves, and the executive did no more than carry out the directives
of the legislature and the Constitution. As Hamilton wrote in
Federalist 78, quoting Montesquieu's Spirit of Laws, ``there is no
liberty if the power of judging be not separated from the legislative
and executive powers.'' \6\
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\5\ Id., at 440.
\6\ Id., at 437.
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President Bush's Proposed Judicial Philosophy
Considering what Hamilton had to say in Federalist 78, and
considering what Montesquieu wrote, we are in a better position to
understand the questions that are before this subcommittee today. We
are here, basically, because of certain campaign promises that then
Governor Bush made when he was running for the office he now holds. He
explained that he wanted to appoint judges who would interpret the law
rather than make it, and he further explained that his models for the
type of judge he would appoint were the current Supreme Court Justices
Antonin Scalia and Clarence Thomas.\7\ These two are the Justices on
the court who have been most closely associated with the interpretive
philosophy of effectuating the original understanding of the meaning of
the Constitution, and these two, it would seem, are those who come
closest to most consistently demonstrating the judicial philosophy
Hamilton limned in Federalist 78.\8\
---------------------------------------------------------------------------
\7\ See, e.g. David L. Greene and Thomas Healy, ``Bush Sends Judge
List to the Senate,'' Baltimore Sun, May 10, 2001, p. 1A (Indicating
that the judges the President ``admires most'' are Antonin Scalia and
Clarence Thomas.)
\8\ For Scalia's statement of his judicial philosophy, see Antonin
Scalia, A Matter of Interpretation (Princeton University Press, 1997),
and for Thomas's judicial philosophy see Scott Douglas Gerber, First
Principles: The Jurisprudence of Clarence Thomas (New York University
Press, 1999).
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There have been suggestions in the press, and it is likely that
there will be testimony offered to you, that more judges like Scalia
and Thomas would somehow represent a danger to our Republic, that they
have some sort of ``far right wing'' agenda, that they are dangerous
judicial activists who would, if multiplied, pose a fundamental danger
to our civil rights as Americans. Nothing could be further from the
truth. There can be no danger posed by men and women who conceive of
the judicial role as Hamilton conceived it, as implementing the will of
the sovereign people. George W. Bush summed up his perspective on
judicial appointments when he indicated, ``Every judge I appoint will
be a person who clearly understands the role of a judge is to interpret
the law, not to legislate from the bench. Paraphrasing from The
Federalist, Bush stated that ``the courts exist to exercise not the
will of men, but the judgment of law. My judicial nominees will know
the difference.'' \9\
---------------------------------------------------------------------------
\9\ Volume 37, Number 19, Public Papers of the Presidents (Remarks
of President George W. Bush Announcing Nominations for the Federal
Judiciary, May 14, 2001).
---------------------------------------------------------------------------
If this is the judicial philosophy, or the ideology of President
Bush's likely appointments, surely there is no terror in it. This is
the traditional manner of interpreting the Constitution and laws, and
it is all that Scalia and Thomas, and, indeed, many other federal
judges past and present have had as a judicial philosophy. In this
philosophy or ideology there is no danger, unless one fears fidelity to
the rule of law itself. And, it should be emphasized, in our republic
the rule of law is nothing more than the demonstrated will of the
people. Hamilton stressed that it took a person of ``fit character'' to
be a federal judge, and that such people could not be found in great
numbers. They had to possess not only great knowledge of the law but
also to possess the courage of their convictions and the ability to
resist popular pressures that might lead them to ignore their
Constitutional duties. Indeed, it is important for us to remember here
that the Framers were well aware that judging in a manner consistent
with the rights guaranteed by the constitution could be an unpopular
course when passions were aroused, and thus Hamilton believed that
steps were necessary to make federal judges as independent as possible.
That's what lifetime good behavior tenure was designed to ensure, and
that's why the provision against reducing judicial salaries was placed
in the Constitution.
Advising and Consenting with Regard to Judicial Nominees
This hallowed legislative body, the United States Senate,
exercising its Constitutional advice and consent function, must
constantly be on guard against those who would seek to influence the
judiciary for particular partisan purposes, and who would seek to move
the judiciary from its constitutional role as a neutral arbiter of the
laws and the Constitution. Unfortunately, many comments, even some made
in these hearings, seem calculated politically to manipulate the
judicial selection process, and seem designed to frustrate the
appointment of judges who might refuse to follow a politically popular
course when the Constitution and laws might provide otherwise.
It is important to understand just how the Framers conceived of the
Senatorial role in advising and consenting on judicial nominees. This
is discussed by Alexander Hamilton in Federalist 76, where he indicates
that the scheme of delegated power under the constitution rests upon
the implication ``that there is a portion of virtue and honor among
mankind which may be a reasonable foundation of confidence'' in public
officials.\10\ Making even clearer that in the appointments process the
Senate should be concerned primarily with the virtue and honor of
candidates, Hamilton explicitly indicates that the concurrence of the
Senate is required for appointments under the Constitution in order to
be ``an excellent check upon a spirit of favoritism in the President,
and to tend greatly to prevent the appointment of unfit characters from
State prejudice, from family connection, from personal attachment, or
from a view to popularity.'' \11\
---------------------------------------------------------------------------
\10\ Federalist 76, in Madison, Hamilton, and Jay, supra note 2, at
431.
\11\ `` Id., at 430.
---------------------------------------------------------------------------
Hamilton also notes that the scheme of Senate approval will reduce
the chance that appointments will be made by the President simply on
the basis of ``his private inclinations and interests.'' \12\ As far as
I know no one has suggested that these are President Bush's motives,
and I find it impossible to understand how a pledge to appoint judges
who will operate pursuant to a judicial philosophy that implements
popular sovereignty and the rule of law could be the abuse of
Presidential power Hamilton had in mind. Indeed, judges faithful to the
Constitution and laws, of a kind that President Bush proposes, are the
possessors of the kind of wisdom, honor and integrity Hamilton thought
crucial in nominees.
---------------------------------------------------------------------------
\12\ Ibid.
---------------------------------------------------------------------------
The Senate has a role to play in ascertaining that those appointed
to the judiciary are ``fit characters,'' and persons of integrity,
honor, and virtue. But if Hamilton's comments in Federalists 76 and 78
mean anything, they mean that the Senate should not use its own
partisan political preferences for the production of particular results
in the courts, as opposed to the following of proper procedures for
determining the law, as a litmus test for judicial appointments. The
Senate should not use partisan political ideology to select judges,
instead the Senate should insist on proper judicial philosophy for
nominees. Indeed, the genius of the separation of powers in America, I
have come to understand over three decades of practicing and teaching
law, is that law is supposed to be different from politics, and liberty
and rights in this country are best protected by maintaining that
separation.
It worries me, then, when I read, in the press, suggestions that
the Senate should be on its guard against Bush's judicial nominees
because they are ``right wing ideologues'' or ``judicial activists''
who would present a danger to the enforcement of our precious
constitutional heritage, or our civil rights.\13\ It is common for
Democrats to accuse Republicans of being tools of the ``far right,''
and for Republicans to regard Democrats as ``left wing'' extremists,
but these political terms of excoriation obscure rather than illuminate
what is at stake when judicial appointments are being discussed.
---------------------------------------------------------------------------
\13\ Even my friend and fellow-witness at this hearing, University
of Chicago Law Professor Cass Sunstein, has been quoted as stating that
``There is a danger the federal judiciary could be dominated by right-
wing ideologues.'' M.E. Sprengelmeyer, ``Judge Nominee Called
Extremist,'' Rocky Mountain News, May 10, 2001, page 24A.
---------------------------------------------------------------------------
Alas, even though some Senators have tried to suggest that what
they want to see is ``moderates'' appointed as judges, I don't think
even that term is useful here.\14\ The idea of judicial ``moderates''
is not merely obfuscatory because in politics the ``moderates'' are
always you or the people you agree with, while your opponents are
always ``extremists.'' The real problem is that judicial ``moderation''
in implementing the will of the people may not be a virtue. The issue
here is not left or right, radical or reactionary, or even liberal or
conservative, the issue is the separation of powers under the
Constitution, and whether a nominee adheres to it or not. One who
believes in adherence to the constitution, is of course, in a sense a
conservative, since he or she is conserving constitutional values.
Still, one who conserves constitutional values and the separation of
powers, as Montesquieu pointed out, is also a liberal because he or she
is preserving the liberty that can only exist where judges do not
legislate.
---------------------------------------------------------------------------
\14\ For example, the Chair of this subcommittee, Senator Schumer,
has been quoted as stating, ``Judges [nominated by the President] will
have to be moderate.'' See, e.g., Ron Fourier, ``Switch Tarnishes
Bush's Image,'' Chattanooga Times/ Chattanooga Free Press, May 25,
2001, pg. A1 (AP Wire Story).
---------------------------------------------------------------------------
There is Nothing to Fear from the President's Judicial Philosophy
It cannot be denied that there are substantive elements involved in
the current struggle over judicial appointments. We all understand, I
think, that there is a partisan divide over issues that could well be
described as ideological, even if the proper judicial philosophy should
not be a subject of partisan rancor. The fear of those who now seek to
block President Bush's appointments is that if he is permitted to
nominate judges of a philosophical bent close to those of Thomas and
Scalia, they will participate in decisions that will bar affirmative
action, interfere with the separation of church and state, and outlaw
abortion. I understand those fears, but I do not share them for two
reasons. First, I think that Thomas and Scalia's perspective on these
issues is in accord with the original understanding of the
constitution, and, second, I think that any new judicial appointments
on the lower federal courts, or even on the United States Supreme
Court, would be unlikely significantly to alter the law regarding these
topics.
With-regard to the first point, Thomas and Scalia have indicated
what appears to be a belief in a color-blind constitution, an
understanding that any governmental discrimination on the basis of race
ought to be prohibited. This, I think, is the perspective of Dr. Martin
Luther King, who believed that we should judge persons by the ``content
of their character,'' and not ``the color of their skin,'' \15\ and,
indeed, that was the goal of the Fourteenth Amendment itself. The
Fourteenth Amendment after all, is couched in terms of ``equal
protection of the laws'' not special advantage. This is not a radical
or reactionary perspective, it is simple equality, or, perhaps,
``Simple Justice.'' \16\
---------------------------------------------------------------------------
\15\ The famous words are from Dr. King's ``I have a Dream''
speech, delivered at the Lincoln Memorial, in Washington, on August 28,
1963. See, e.g., Deborah Gillan Straub, African American Voices 211
(1996).
\16\ See, e.g., Richard Kluger, Simple Justice: The History of
Brown v. Board of Education and Black America's Struggle for Equality
(Random House, paperback edition, 1977).
---------------------------------------------------------------------------
Thomas and Scalia have been reluctant to follow some of their
brethren in broadly construing the establishment clause to bar all
official involvement with religion, as they did, for example, when they
dissented from a 1992 ruling that barred non-sectarian prayer at a
middle school graduations \17\ and from a more recent ruling regarding
student prayer at a high school football game.\18\ In doing so, of
course, Thomas and Scalia were merely following centuries of American
tradition, which emphasized the role of the sacred in undergirding
American government and life. More importantly, they were emphasizing
that in matters of religion, the Constitutional scheme barred the
federal government from establishing a national sect, but left the
state and local governments free to promote the policies they deemed
proper.
---------------------------------------------------------------------------
\17\ Lee v. Weisman, 505 U.S. 577 (1992).
\18\ Santa Fe Independent School District v. Doe, 530 U.S. 290
(2000).
---------------------------------------------------------------------------
This was the same perspective that animated and animates Scalia and
Thomas's positions on the issue of abortion. They believe that this is
not a question that the federal constitution addresses, and that the
matter is best left in the hands of state governments, where the
Constitution originally placed it.\19\
---------------------------------------------------------------------------
\19\ See, e.g. Planned Parenthood c. Casey, 505 U.S. 833, 1002
(Scalia, J., dissenting) (``We should get out of this area, where we
have no right to be, and where we do neither ourselves nor the country
any good by remaining.'')
---------------------------------------------------------------------------
This last set of concerns may also help us understand what causes
the anxiety over the President's potential nominees. For most of the
past sixty-four years there has been a tendency on the part of the
federal government to extend its regulatory reach, and for the federal
courts to support such expanded federal power. We have seen, in recent
years, some signs of willingness on the part of the Supreme Court to
once again remind us that the powers of the federal government are
limited and enumerated, and to manifest this willingness by declaring
some federal statutes unconstitutional on the grounds that they
exercise powers not granted to Congress.\20\ Because I believe that the
original constitutional scheme was to make the state and local
governments the primary exercisers of legislative power I don't find
this worrisome, but those who believe that the federal government ought
to be the exclusive guarantor of our rights might disagree. I can't
sympathize with that view, because I believe, as the Framers did, that
the most important right of the people is to legislate for themselves,
and I believe that this is best done by the governments closest to the
people, except in matters of clearly national concern.
---------------------------------------------------------------------------
\20\ See, e.g. U.S. v. Lopez, 514 U.S. 549 (1994) (Holding
unconstitutional the Federal Gun-Free School Zones Act, on the grounds
that it was unauthorized by the Constitution's commerce clause), U.S.
v. Morrison, 529 U.S. 598 (2000) (Holding, inter alia, that portions of
the federal Violence Against Women Act failed to pass constitutional
muster under the commerce clause).
---------------------------------------------------------------------------
This right of the people to legislate for themselves, is, of
course, the same thing that is involved in the Constitution's mandating
of the separation of powers, and in the wish of President Bush that
judges not-legislate. But to return to the reasons not to fear the Bush
nominees. Even if the President were to be successful in getting
through the Senate precisely those nominees of his choosing, and the
nominees most committed to the original understanding and the belief
that judges should not legislate, it is by no means clear that any,
much less all of the Constitutional principles said to be endangered
would be overturned.
The first point that needs to be made in this regard is that
predictions of what people will do when they ascend the bench are
notoriously inaccurate. President Madison appointed Joseph Story,
thought to be a firm Jeffersonian, who turned out to be Marshall's
staunchest ally on the Supreme Court bench, and, for all practical
purposes, a committed nationalist.\21\ President Eisenhower was
frequently quoted as saying that he only made two mistakes as President
and that they were both sitting on the United States Supreme Court. He
was referring to his appointments to the court of William Brennan and
Earl Warren, because they proceeded to decide cases in a manner with
which he apparently thoroughly disagreed.\22\ Most recently Justice
Souter seems to have evolved a constitutional jurisprudence clearly at
odds with the first President Bush's asserted preferences for judges
would interpret the Constitution according to the original
understanding. It is for this reason--the unpredictability of judicial
performance--that the safest course is probably to focus on the
competence, integrity, virtue and honor of nominees, since these seem
to be qualities least subject to change over time, and least affected
by becoming judges.
---------------------------------------------------------------------------
\21\ For Story's career, see, e.g., R. Kent Newmyer, Supreme Court
Justice Joseph Story: Statesman of the Old Republic (Paperback ed.,
1986).
\22\ See, e.g. Lawrence Baum, The Supreme Court 41 (3d ed. 1989).
---------------------------------------------------------------------------
The second point regarding the lack of danger posed by Bush
nominees to current Constitutional doctrines is related somewhat to the
first, and is the difficulty of judges of any stripe in overruling
established law. It is perhaps significant that the Supreme Court's
1992 ruling, in Planned Parenthood c. Casey,\23\ which upheld Roe v.
Wade,\24\ the case finding in the 14th Amendment an unenumerated right
under some circumstances for termination of pregnancies, was made by a
Court that included 8 Republican appointments, and the five-person
majority in that case were all Republican nominees. Indeed, most
recently, the Supreme Court, which, at this writing has seven
Republican nominees and two Justices nominated by a Democratic
President, found that a state statute banning partial-birth abortion
failed to pass Constitutional muster.\25\ The empirical case that
Republican appointees are a danger to the legality of abortion simply
has not been made. Similarly composed Supreme Court majorities have
upheld decisions involving affirmative action and applying the First
Amendment strictly to separate state and local government from
religion, though narrow majorities have also sought to give religious
organizations the same free-exercise of speech rights as secular
organizations, but this should hardly be cause for worry by the friends
of free expression.
---------------------------------------------------------------------------
\23\ 505 U.S. 833 (1992).
\24\ 410 U.S. 113 (1973).
\25\ Stenberg v. Carhart, 530 U.S. 914 (2000).
---------------------------------------------------------------------------
A final point to be made about the limited power of potential Bush
nominees is that judges adhering to the original understanding, or
those committed to exercising judgment rather than will, or those who
know that it is the job of a judge to interpret rather than to make
law, if placed on lower federal courts will follow the dictates of the
United States Supreme Court. There is no more basic principle of our
federal judicial system then that that binds the Courts of Appeals and
the District Courts to follow the interpretations laid down by the
Supreme Court. As long as that Court adheres to current doctrines
regarding abortion, race, or religion, Bush nominees to the lower
courts will follow them.
Conclusion: Preserving Learned Hand's ``Common Venture''
I do not suggest that the law or even the Constitution should not
change over time, as the needs of the American people shift with
economic, political, or social development. Such change, however, in
our system, is supposed to come from legislatures or from
Constitutional Amendment; and not through judges acting as legislators.
As Learned Hand, perhaps the greatest judge never to sit on the Supreme
Court, remarked, inveighing against the notion that members of that
Court should make law:
For myself it would be most irksome to be ruled by a bevy of
Platonic Guardians, even if I knew how to choose them, which I
assuredly do not. If they were in charge, I should miss the
stimulus of living in a society where I have, at least
theoretically, some part in the direction of public affairs. Of
course, I know how illusory would be the belief that my vote
determined anything; but nevertheless when I go to the polls I
have a satisfaction in the sense that we are all engaged in a
common venture.\26\
\26\ Learned Hand, The Bill of Rights 73-74 (Harvard University
Press, 1958).
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I urge this subcommittee and the Senate as a whole to preserve that
``common venture,'' the exercise of sovereignty by the American people,
and their right to make their own laws and Constitutions. The
philosophy of judging outlined by President Bush is no danger to that
popular sovereignty. It is the only means of implementing it and the
rule of law itself.
Chairman Schumer. Thank you, Professor Presser.
Our next witness is Professor Cass Sunstein. He is also
from the State of Illinois, so you might want to say hello to
him, Senator Durbin.
Professor Sunstein is presently a member of the University
of Chicago's Department of Political Science, as well as the
law school. He graduated in 1975 from Harvard College, and in
1978 from Harvard Law School magna cum laude. He clerked for
Justice Thurgood Marshall, and before joining the faculty of
the University of Chicago Law School he served as an attorney-
adviser in the Office of Legal Counsel in the U.S. Department
of Justice.
He is the author of many articles and books, including
After the Rights Revolution: Reconceiving the Regulatory State,
Constitutional Law, The Partial Constitution, Administrative
Law and Regulatory Policy, and the recently released One Case
at a Time: Judicial Minimalism on the Supreme Court. He is now
working on various projects involving the relationship between
law and human behavior.
Professor Sunstein, thank you for coming and we look
forward to your testimony.
STATEMENT OF CASS R. SUNSTEIN, KARL N. LLEWELLYN DISTINGUISHED
SERVICE PROFESSOR OF JURISPRUDENCE, UNIVERSITY OF CHICAGO, LAW
SCHOOL AND DEPARTMENT OF POLITICAL SCIENCE, CHICAGO, ILLINOIS
Mr. Sunstein. Thank you, Mr. Chairman. It is an honor to be
here, and I am going to try in these remarks to be as specific
as I can because it is easy to get kind of tangled up in
abstractions on this issue.
If we step back a bit, I think everybody agrees that
ideology, in the sense of general approach or likely pattern of
decisions, matters. There is no disagreement about that. If
there was a nominee who thought that the Bill of Rights didn't
apply to the States, or the Constitution didn't protect private
property, or that segregation was acceptable at the hands of
the State or Federal Government, almost everyone would agree
that that nominee shouldn't be confirmed.
The President and the Senate are in accord on the
importance of ideology. Republicans and Democrats agree with
that. Political ideology, of course, doesn't matter. It doesn't
matter who you voted for. The general approach to the
Constitution and laws, of course, matters. That is not a
disputed question.
Under current conditions, I suggest it is perfectly
appropriate for independents, Republicans and Democrats to
attempt to ensure a deferential judiciary that respects
Congressional prerogatives. The current Federal judiciary, I
suggest, is all too willing to invalidate Federal enactments.
This is an issue that has gotten no attention thus far today,
zero. It is the most important development within the last 10
years on the Federal judiciary; that is, we have a Supreme
Court and lower Federal court judges who are willing to limit
Congressional power in a way unprecedented in the sense that we
haven't seen it in the last 50 years.
We could deal a fair bit with numbers, and I think I am not
going to give you numbers, but just to suggest that the Court
has invalidated legislation that has commanded astonishing
bipartisan support with the very recent past. The Violence
Against Women Act, the Religious Freedom Restoration Act, the
Age Discrimination in Employment Act, and the Americans with
Disabilities Act--all of these in whole or in significant part
have been invalidated by a Supreme Court and a lower Federal
judiciary that is suffering on occasion from the vice of
hubris.
My remarks will come in three parts. I will say a little
bit about the constitutional role of the Senate, a little bit
about the current Federal judiciary, and then a little bit
about the appropriate Senate rule under current conditions;
that is, conditions of the year 2001 as opposed to 1970.
With respect to the Constitution, the text, understood in
its context, clearly contemplates an aggressive role for the
Senate in looking at ideology, understood as general approach.
federalism was a disputed issue at the time, of course, and the
advice and consent function is no mere rubber stamp. The idea
is that the Senate has a role in giving or denying consent, and
also in advising, if it chooses and if the President chooses to
listen, the President as well. This is not just a matter of
paper; this is an important constitutional function.
With respect to the structure of the Constitution, there is
a further point. There is all the difference in the world
between the Senate's role in advising and consenting to
Presidential appointments in the executive branch and
Presidential appointments in the judicial branch.
I will suggest that I believe the Senate was entirely
correct to confirm two honorable men, Attorney General Ashcroft
and Solicitor General Olson, notwithstanding the controversy
over their points of view. These are disputed issues and the
President was entitled to have a wide berth there. I would
submit the same thing with respect to other currently disputed
Presidential nominees within the executive branch. President
Bush is entitled to a great deal of room to maneuver.
The Federal judiciary is a whole different ball of wax, not
least because the Federal judiciary often acts as an arbiter of
controversies between Congress and the President, an issue
which may come up again with respect to the area of campaign
finance reform, where the Congress and the President may have a
different view. Where the Federal judiciary has this arbitral
role, the ordinary presumption of very strong deference just
doesn't apply.
The original history of the Constitution strongly confirms
this view. The word used by the Framers was ``security.'' That
is what the role of advice and consent was intended to give.
Alexander Hamilton was a very great man. He was also probably
the strongest defender of Presidential prerogatives at the time
of the Framing. What he said is important, but it should be
taken with many grains of salt.
In any case, the Nation's practice over the last 200-plus
years has converged on a role for ideology. If President
Clinton had nominated someone who believed that the
Constitution doesn't protect private property or the
Constitution guarantees a right to marry for homosexuals, there
is no question there would have been an outcry. And to make
those sorts of issues a basis for an outcry would have been
entirely acceptable. Senator Hatch would have done that and he
would have been within his constitutional domain to do that.
We now have a Federal judiciary that is very different from
the Federal judiciary of 30 years ago. At that point, it would
have been appropriate to complain about liberal judicial
activism--a Supreme Court that had on it Justices Brennan,
Marshall and Blackmun, all of whom were liberals; a lower
Federal judiciary that had people in the mold of Brennan,
Marshall and Blackmun.
These are in many ways distinguished people, Brennan,
Marshall and Blackmun. I clerked for Justice Marshall. I
disagree strongly with their view about the appropriate
approach to the Supreme Court. I believe they were rightly
criticized as liberal judicial activists.
Right now, we have a Supreme Court that has a heavy right
wing, a heavy center, and no left at all. We don't have a
single Justice who marches to the same tune as that set by
Brennan, Marshall and Blackmun. Even for those who disagree
with that tune or don't think it sounds quite right, this is a
loss for the country.
The two characteristics of the Federal judiciary now,
signaled maybe most prominently by the federalism cases, are,
first, that it is quite willing to strike down Federal
statutes, in some ways extraordinarily willing to do that, and
it is willing to strike down Federal statutes from a particular
direction; that is, the most prominent new departures by the
Court, when it isn't just respecting old precedent, are
departures in the direction set by, let's just call it the
conservative right.
Indeed, I read the Republican Party platforms back to 1980
on the plane here and there is an eery resemblance between the
directions being marked out by the most conservative Justices
on our Supreme Court and our most conservative judges on the
lower courts and the statements in the Republican Party
platform.
It would be just too happy a coincidence if it turned out
that the Republican Party platform perfectly tracked the
original understanding of the Framers of the Constitution, and
that coincidence I will just say in shorthand can't be
vindicated by reference to history.
The re-molding of the Federal judiciary from the last 30
years has been deliberate and self-conscious. President Reagan
was very concerned to ensure a restructured Federal judiciary
and succeeded in that. He was self-conscious and effective.
President Clinton, by contrast, was concerned to work with
the Republican Senate partly just because of his self-interest,
and he appointed centrists, not liberals. Justice Breyer and
Justice Ginsburg are extremely distinguished nominees. They are
not at all like Brennan and Marshall or Blackmun. They have a
very different approach to the law and the Constitution. It is
an approach that I personally approve of.
I can't think of a single nominee by President Clinton to
the lower Federal courts who genuinely counts as a liberal. He
appointed centrists, not liberals. That is to his credit, I
believe, but it involved a re-molding of the Federal judiciary.
Of course, it is right that the current Senate owes the
President a large measure of respect and a measure of
deference. But if we look at the trend lines own the Federal
judiciary and what is likely to happen if President Bush is
allowed to do whatever he wants, I don't think that Republicans
are going to like that very much either.
Many Republicans don't like affirmative action programs and
campaign finance reform. Most Republicans who don't like those
things don't believe that the future of affirmative action
programs and campaign finance reform should be set by the
Federal judiciary.
Many Republicans believe that commercial advertising
shouldn't be regulated by the state, that it is none of the
state's business. Few Republicans believe that the Constitution
of the United States forbids State legislatures from regulating
commercial advertising. Justices Scalia and Thomas have
signaled their strong desire to strike down affirmative action
programs, campaign finance, and regulation of commercial
advertising.
There is no question that their directions would draw into
question, as they have just done, the Clean Water Act and the
Endangered Species Act, and certain provisions at least of the
Clean Air Act. This is objectionable not because the results
are objectionable, but because it is an inappropriate role for
the Supreme Court in our constitutional system.
Justice Scalia, I should say, my former colleague at the
University of Chicago, is probably the best writer on the Court
since Justice Jackson, and the Nation is much better off with
his voice than without his voice. The same can be said for
Justice Thomas, who has added a great deal to the Supreme Court
partly because he has points of view and arguments, like
Justice Scalia, that are very different from those of anyone
else on the Court.
What is desirable is not a litmus test or an exclusion of
people with particular points of view, but respect for
intellectual diversity. And I fear that my fellow Illinoisan
and friend, Professor Presser, is suggesting that his
particular approach to the Constitution has a kind of unique
claim to validity, as if the Federal judiciary should be
monopolized by a particular interpretive approach. That is not
the way a Federal judiciary operates in a democracy and it is
appropriate for the Senate to assure that it doesn't happen.
To end, let me suggest that in this particular era we need
a form of mutual accommodation between the Senate and the
President to ensure not a litmus test for anyone in particular,
but an appropriate degree of diversity, not racial or ethnic or
based on gender, but intellectual diversity so that the Federal
courts are not monopolizes by any particular interpretive
approach.
We need, even more than that, a deferential judiciary that
is humble and cautious and respectful of the prerogatives of
the democratic branches of Government. The idea that the
Supreme Court should interpret law and not make it is correct.
That idea ought not to be used by those who believe that the
Constitution, fairly interpreted, is a kind of weapon to be
wielded against the elected branches of Government.
[The prepared statement of Mr. Sunstein follows:]
Statement of Cass R. Sunstein, Karl N. Llewellyn Distinguished Service
Professor of Jurisprudence University of Chicago, Law School and
Department of Political Science
Mr. Chairman and Members of the Subcommittee:
I am grateful to have the opportunity to appear before you today to
discuss the issue whether ``ideology'' should matter in the process of
appointing and confirming federal judges.
My basic conclusion is simple. ``Ideology'' should certainly
matter, both for the President and for the Senate. At least this is so
if ``ideology'' means the expected approach, and general patterns of
votes, of a potential judge. Almost everyone would agree that the
President should not nominate, and the Senate should not confirm,
someone who thinks that the Constitution does not protect private
property, or permits schools to be segregated on the basis of race, or
allows government to suppress political dissent. Because of his unique
constitutional position, the President's choices are certainly due a
large measure of deference. But it is perfectly appropriate for the
Senate to ask whether a nominee's general approach, or likely pattern
of votes, fits within the acceptable range of views, given the current
nature of the federal judiciary, and existing trends within the federal
courts as a whole.
To offer somewhat more detail: In as era in which the federal
judiciary is dominated by left-wing judges, interpreting the
Constitution to fit with their own views of public policy, it would be
perfectly appropriate for Senators to insist that the President appoint
people who will have a more modest view of the judges' role in the
constitutional order. In an era in which the federal judiciary has a
good deal of diversity, is respectful of its own limitations, and has
no particular ``tilt,'' it would be appropriate for the Senate to allow
the President to appoint the judges he prefers, so long as they are
competent and have views that do not go beyond the pale. But in an era,
like our own, in which the federal judiciary is showing too little
respect for the prerogatives of Congress, an excessive willingness to
intrude into democratic processes, and a tendency toward conservative
judicial activism, it is fully appropriate for the Senate to try to
assure more balance, and more moderation, within the federal courts.
My testimony will come in three parts. Part I briefly discusses the
constitutional background. Part II discusses the nature of the federal
judiciary. Part III discusses the appropriate posture, from the Senate,
toward nominees by President Bush.
I. The Constitutional Background \1\
The Constitution fully contemplates an independent role for the
Senate in the selection of Supreme Court Justices. That independent
role certainly authorizes the Senate to consider the general approach,
and likely pattern of votes, of potential judges.
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\1\ This section borrows heavily, and often verbatim, from David A
Strauss and Cass R Sunstein, The Senate, the Constitution, and the
Confirmation Process, 101 Yale LJ 1491 (1992). In order to promote
readability, I have not included footnotes, which can be found in that
essay, attached as an appendix to my testimony.
---------------------------------------------------------------------------
Article II, Section 2 provides that the President ``shall nominate,
and by and with the Advice and Consent of the Senate, shall appoint . .
. Judges of the supreme Court.'' A first glance, these words assign two
distinct roles to the Senate--an advisory role before the nomination
has occurred and a reviewing function after the fact. The consent
requirement, if the Senate takes it seriously, places pressure on the
President to give weight to senatorial advice as well. At the same
time, the advisory function makes consent more likely. The clause seems
to envision a genuinely consultative relationship between the Senate
and the President. It seems to create a deliberative process, jointly
conducted, concerning the composition of the Court.
In the particular context of judicial appointments, there is an
additional and highly compelling concern, one that stems from
constitutional structure. It may be granted that the Senate ought
generally to be deferential to Presidential nominations involving the
operation of the executive branch. For the most part, executive branch
nominees must work closely with or under the President. The President
is entitled to insist that those nominees are people with whom he is
comfortable, both personally and in terms of basic commitments and
values. It is for this reason, among others, that the Senate's
decisions to confirm Attorney General John Ashcroft and Solicitor
General Theodore Olson seem to be entirely correct.
The case is quite different, however, when the President is
appointing members of a third branch. The judiciary is supposed to be
independent of the President, not allied with him. It hardly needs
emphasis that the judiciary is not intended to work under the
President. This point is of special importance in light of the fact
that many of the Court's decisions resolve conflicts between Congress
and the President. A Presidential monopoly on the appointment of
Supreme Court Justices thus threatens to unsettle the constitutional
plan of checks and balances.
History supports this view of the text and structure. The
Convention had four basic options of where to vest the appointment
power: it could have placed the power (1) in the President alone, (2)
in Congress alone, (3) in the President with congressional advice and
consent, or (4) in Congress with Presidential advice and consent. Some
version of each of these options received serious consideration.
The ultimate decision to vest the appointment power in the
President stemmed from a belief that he was uniquely capable of
providing the requisite ``responsibility.'' A single person would be
distinctly accountable for his acts. At the same time, however, the
Framers greatly feared a Presidential monopoly of the process. They
worried that such a monopoly might lead to a lack of qualified and
``diffused'' appointees, and to patronage and corruption. The Framers
also feared insufficient attentiveness to the interests of different
groups affected by the Court. The compromise that emerged-the system of
advice and consent-was designed to counteract all of these various
fears.
a. the early agreement on congressional appointment
It is important to understand that during almost all of the
Convention, the Framers agreed that the Senate alone or the legislature
as a whole would appoint the judges. The current institutional
arrangement emerged in the last days of the process. On June 5, 1787,
the standing provision required ``that the national Judiciary be
[chosen] by the National Legislature.'' James Wilson spoke against this
provision and in favor of Presidential appointment. He claimed that
``intrigue, partiality, and concealment'' would result from legislative
appointment, and that the President was uniquely ``responsible.'' John
Rutledge responded that he ``was by no means disposed to grant so great
a power to any single person. The-people will think we are leaning too
much towards Monarchy.''
James Madison agreed with Wilson's concerns about legislative
``intrigue and partiality,'' but he ``was not satisfied with referring
the appointment to the Executive.'' Instead, he proposed to place the
power of appointment in the Senate, ``as numerous eno' to be confided
in-as not so numerous as to be governed by the motives of the other
branch; and as being sufficiently stable and independent to follow
their deliberative judgments.'' Thus, on June 5, by a vote of nine to
two, the Convention accepted the vesting of the appointment power in
the Senate.
On June 13, Charles Pinckney and Roger Sherman tried to restore the
original provision for appointment of the Supreme Court by the entire
Congress. Madison renewed his argument and the motion was withdrawn.
The issue reemerged on July 18. Nathaniel Ghorum claimed that even
the Senate was ``too numerous, and too little personally responsible,
to ensure a good choice.'' He suggested, for the first time, that the
President should appoint the Justices, with the advice and consent of
the Senate- following the model set by Massachusetts. Wilson responded
that the President should be able to make appointments on his own, but
that the Ghorum proposals were an acceptable second best. Martin and
Sherman endorsed appointments by the Senate, arguing that the Senate
would have greater information anda point of special relevance here-
that ``the Judges ought to be diffused,'' something that ``would be
more likely to be attended to by the 2d. branch, than by the
Executive.'' Edmund Randolph echoed this view.
In the end, the Ghorum proposal was rejected by a vote of six to
two. At that point, Ghorum suggested, as an alternative, that the
President should nominate and appoint judges with the advice and
consent of the Senate. On this the vote was evenly divided, four to
four.
Madison then proposed Presidential nomination with an opportunity
for Senate rejection, by a two-thirds vote, within a specified number
of days. Changing his earlier position, Madison urged that the
executive would be more likely ``to select fit characters,'' and that
``in case of any flagrant partiality or error, in the nomination, it
might be fairly presumed that \2/3\ of the 2d. branch would join in
putting a negative on it.'' Pinckney spoke against this proposal, as
did George Mason, who argued: `` Appointment by the Executive is a
dangerous prerogative. It might even give him an influence over the
Judiciary department itself.''
The motion was defeated by six to three. By the same vote, the
earlier Madison proposal, in which the Senate would appoint the
Justices, was accepted.
The issue next arose on August 23. Morris argued against the
appointment of officers by the Senate, considering ``the body as too
numerous for the purpose; as subject to cabal; and as devoid of
responsibility.'' But it was not until September 4 that the provision
appeared in its current form. Morris made the only recorded
pronouncements on the new arrangement and seemed to speak for the
entire, now unanimous assembly. Morris said, ``As the President was to
nominate, there would be responsibility, and as the Senate was to
concur, there would be security.'' The Convention accepted the
provision with this understanding.
b. the meaning of the shift to presidential appointment with advice and
consent by the senate
There is no evidence of a general agreement that the President
should have plenary power over the appointments process. On the
contrary, the ultimate design mandated a strong role for the Senate in
the form of the advice and consent function. In this way, it carried
forward the major themes of the debates. With respect to the need for a
Presidential role, the new system ensured ``responsibility'' and
guarded against the risk of partiality in the Senate. With respect to
resistance to absolute Presidential prerogative, the principal concerns
included (1) a fear of ``monarchy'' in the form of exclusive
Presidential appointment; (2) a concern for ``deliberative judgments";
(3) a belief that ``the Judges ought to be diffused,'' that is, diverse
in terms of their basic commitments and alliances; (4) a fear of
executive ``influence over the Judiciary department itself"; and (5) a
desire for the ``security'' that a senatorial role would provide. It is
clear that these concerns reflected a belief that the Senate could
consider what we would now call ``ideology.''
As several of the comments suggest, the Senate's role was to be a
major one, allowing the Senate to be as intrusive as it chose. Even
Hamilton, perhaps the strongest defender of Presidential power,
emphasized that the President ``was bound to submit the propriety of
his choice to the discussion and determination of a different and
independent body.'' Of course, the President retained the power to
continue to offer nominees of his selection, even after an initial
rejection. He could continue to name people at his discretion.
Crucially, however, the Senate was granted the authority to continue to
refuse to confirm. It also received the authority to ``advise.''
These simultaneous powers would bring about a healthy form of
checks and balances, permitting each branch to counter the other. That
system was part and parcel of general deliberation about Supreme Court
membership. The Convention debates afford no basis for the view that
the Senate's role was designed to be meager. On the contrary, they
suggest a fully shared authority over the composition of the Court.
That shared authority was to include all matters that the Senate deemed
relevant, including the nominee's point of view.
c. the early practice
The practice of the Senate in the early days of the republic and
thereafter attests to the same conclusion. George Washington's
nomination of John Rutledge, then Chief Justice of South Carolina, as
Chief Justice of the United States is a revealing case in point.
Rutledge's challenge to the Jay Treaty, negotiated by Washington with
Great Britain, played a pivotal role in the confirmation process. The
Jay Treaty was challenged by the Republicans as a concession to Britain
but approved by the Federalists as a way of keeping the peace. Rutledge
attacked the treaty in a prominent speech in Charleston. The
Federalists sought to block the Rutledge appointment on
straightforwardly political grounds. Hamilton, a leader of the support
for the Jay Treaty, led the opposition to Rutledge. The Senate
ultimately rejected Rutledge in part for political reasons, by a vote
of fourteen to ten.
Nor was the Rutledge rejection unique. In 1811, the Senate rejected
Madison's appointment of Alexander Wolcott, partly on the basis of
political considerations. In 1826, President Adams' appointment of
Robert Trimble was nearly rejected on political grounds. The 1828
nomination of John Crittenden, a Whig, was ultimately prevented through
postponement, and squarely on ideological grounds. Similar episodes
occurred in the first half of the nineteenth century. In fact, during
the nineteenth century, the Senate blocked one of every four nominees
for the Court, frequently on political grounds.
The Senate has at times insisted on the ``advice'' segment of its
constitutional mandate. In 1869, President Grant nominated Edwin
Stanton after receiving a petition to that effect signed by a majority
of the Senate and the House. In 1932, the Chair of the Judiciary
Committee, George W. Norris, insisted on the appointment of a liberal
Justice to replace Oliver Wendell Holmes. Greatly influenced by a
meeting with Senator William Borah, President Hoover eventually
appointed Benjamin Cardozo to the Court. The Senator persuaded
President Hoover to move Cardozo, then at the bottom of the President's
list of preferred nominees, to the top.
More recently, the ``ideology'' of judges has played a role in the
Senate's consideration of many Supreme Court nominees, including David
Souter, Robert Bork, Clarence Thomas, Ruth Bader Ginsburg, Stephen
Breyer, Anthony Kennedy, and others. Both Republicans and Democrats
have considered the general approach and likely pattern of votes of
Presidential nominees, including nominees for the lower courts. It
would not be excessive to say that in the last twenty years, a
bipartisan consensus has emerged on the relevance of ``ideology,'' so
much so that no Senator, and no outside observer, has seriously argued
that it does not matter.
Constitutional text, history, and structure strongly suggest that
the Senate is entitled to assume a substantial role. There are
analogies to proposed legislation and treaties, and to the Presidential
veto. No one thinks that the Senate must accept whatever bill or treaty
the President suggests simply because it is a ``competent'' proposal;
it would be odd indeed to claim that the President must sign every bill
before looking closely at the merits. Under the Constitution, the role
of the Senate in the confirmation process should be approached
similarly.
II. The Contemporary Federal Judiciary
None of the foregoing discussion suggests that in all periods, the
Senate should give careful consideration to the ``ideology'' of
prospective judges. If the federal judiciary were appropriately
diverse, and if it were showing appropriate respect for the
prerogatives of the elected branches of government, there would be
great reason to defer to presidential choices. If the Court were left-
of-center, and pressing its own will in the guise of constitutional
interpretation, the Senate should certainly respect any presidential
efforts to redress the balance. But we are in the midst of a different
and quite unusual situation. This is a period of conservative judicial
activism, in which federal judges appear far from reluctant to reject
the judgments of other branches of government. The Supreme Court is
leading this unfortunate tendency, but the lower federal courts are
entirely willing to strike down acts of Congress as well.
Because this is a period of conservative judicial activism, it is
very different from other eras. For example, the period from 1935 to
1950 was generally one of judicial caution, in which the Court tended
to uphold whatever the elected branches did. The period from 1958 to
1968 saw a great deal of left-wing judicial activism. We might even say
that the Rehnquist Court is the conservative counterpart to the Warren
Court, showing an even greater willingness to strike down legislation.
In terms of sheer competence, no one should doubt that the current
Supreme Court is unusually distinguished. But there are two disturbing
facts about the current Court and indeed the current federal judiciary
as a whole. First, it does not defer to democratically elected
branches. Second, it shows a distinctive ideological tilt. It is fair
to say that it has a heavy right wing, a heavy center, but no left at
all. Let me take these points in sequence.
The simplest fact about the Rehnquist Court is that it has struck
down more federal laws per year than any other Supreme Court in the
last half century. Indeed, the Rehnquist Court has been significantly
more aggressive in invalidating federal statutes that the Warren Court
itself. Because the Supreme Court struck down only one federal statute
between the founding and 1856, there is a good chance that the
Rehnquist Court is the all-time national champion, in terms of its
sheer willingness to strike down federal statutes.\2\ Many of the
statutes invalidated by the Court have had strong bipartisan support
within Congress, and in many of the relevant cases, there was a
powerful argument on behalf of constitutionality.
---------------------------------------------------------------------------
\2\ Of course the raw numbers do not tell us everything we have to
know. Perhaps the Court was correct to invalidate a good deal of
federal legislation; perhaps Congress has been, in the relevant period,
enacting a number of unconstitutional statutes. To evaluate these
claims, we need to go behind the numbers. But I believe a careful
inspection of the cases shows that too much of the time, this Court is
far from respectful of democratic prerogatives.
---------------------------------------------------------------------------
Consider a few simple illustrations:
The Rehnquist Court has reinvigorated the commerce
clause as a serious limitation on congressional power, for the
first time since the New Deal itself.\3\ As a result, a number
of existing federal statutes have been thrown into
constitutional doubt.
---------------------------------------------------------------------------
\3\ US v. Lopez, 514 US 549 (1995); US v. Morrison, 120 S Ct 1740
(2000).
---------------------------------------------------------------------------
The Rehnquist Court has sharply limited congressional
authority under section 5 of the fourteenth amendment, in the
process striking down key provisions of the Americans With
Disabilities Act, the Religious Freedom Restoration Act,\4\ and
the Violence Against Women Act,\5\ all of which received
bipartisan support. In fact section 5 of the fourteenth
amendment has a narrower reach than at any time in the nation's
history, because of the Rehnquist Court's decisions.
---------------------------------------------------------------------------
\4\ City of Boerne v. Flores, 521 US 507 (1997).
\5\ US v. Morrison, 120 S Ct 1740 (2000).
---------------------------------------------------------------------------
The Rehnquist Court has imposed serious barriers to
campaign finance legislation \6\--with Justices Scalia and
Thomas suggesting that they would be prepared to strike down
almost all legislation limiting campaign contributions and
expenditures.\7\ Many people do not believe that campaign
finance legislation is a good idea. But many of those who would
question it in principle (as I do) also believe that this is
not a subject to be settled by federal judges.
---------------------------------------------------------------------------
\6\ FEC v. National Conservative PAC, 470 US 480 (1985).
\7\ See Nixon v. Shrink Missouri Government PAC, 120 S Ct 897
(2000) (Thomas, J., joined by Scalia, J., dissenting).
---------------------------------------------------------------------------
The Rehnquist Court has thrown affirmative action
programs into extremely serious doubt,\8\ raising the
possibility that public employers, public schools, and public
universities will not be able to operate such programs. Many
people reasonably doubt the sense, wisdom, and fairness of
affirmative action programs. But those who have these doubts
usually do not believe that the issue should be resolved by
federal judges, as it now threatens to be.
---------------------------------------------------------------------------
\8\ Adarand Constructors v. Pena, 515 US 200 (1995); Metro
Broadcasting v. FCC, 497 US 547 (1990).
---------------------------------------------------------------------------
The Rehnquist Court has given heightened protection to
commercial advertising, to the point where advertising does not
have much less constitutional protection than political
dissent.\9\
---------------------------------------------------------------------------
\9\ See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 US 484
(1996).
---------------------------------------------------------------------------
In many cases, the Rehnquist Court has interpreted
regulatory statutes extremely narrowly, choosing the
interpretation that gives as little as possible to victims of
discrimination, pollution, and other misconduct.
On the basis of all this, there can be no doubt that this is a
quite activist Court-activist in the sense that it does not have a
modest conception of its role in the constitutional design.\10\
---------------------------------------------------------------------------
\10\ The idea of ``judicial activism'' is an unusually vexed one,
above all because any claim that the judges are ``activist'' seems to
depend on accepting a certain theory of legitimate interpretation. If
originalism is the right approach to constitutional law, then Justice
Scalia is no activist. If democracy-reinforcement is the right approach
to interpretation, then Earl Warren was hardly an activist. Here is the
problem: If we need to agree on a theory of interpretation in order to
know whether judges are activist, discussion of the topic of
``activism'' will become extremely difficult and in a way pointless. A
disagreement about whether judges are activist will really be a
disagreement about how judges should be approaching the Constitution;
and the notions of activism and restraint will have added nothing.
Following Judge Richard Posner, I am using a neutral definition here. A
court is activist when and to the extent that it is willing to strike
down legislation or other acts and decisions by other branches of
government. On this view, to call a court activist is not necessarily
to condemn it. It is on this view that the Rehnquist Court counts as
the most activist in the nation's history, simply because and to the
extent that it has struck down more federal laws, on an annual basis,
than of its predecessor courts. To be sure, this statistic does not
tell us everything we need to know. But it is highly suggestive about
current tendencies and trends.
---------------------------------------------------------------------------
Now to the issue of ``tilt.'' It is notable that the Supreme Court
has moderates but no liberals--no one who stands as a jurisprudential
successor to Justices William Brennan and Thurgood Marshall. The so-
called ``liberal wing'' actually consists of two moderate, precedent-
respecting Republicans (John Paul Stevens and David Souter) and two
moderate Democrats who are respectful of precedent and represent
centrist thinking (Ruth Bader Ginsburg and Stephen Breyer). The Court
has no liberals in the sense that none of its members would follow in
the path set by Brennan and Marshall.\11\
---------------------------------------------------------------------------
\11\ This is lamentable not because I believe that this is the
correct path (in fact I strongly disagree with the path marked out by
Justices Brennan and Marshall), but because a Court that lacks anyone
committed to it is missing something important--just as a Court lacking
the views of Scalia and Thomas would be missing something important.
---------------------------------------------------------------------------
If we put the Court's activist inclinations together with its tilt,
we reach a simple conclusion: The Court is all too willing to federal
statutes, and the statutes that it is willing to strike down are
usually those that diverge from a conservative orthodoxy. It is
unsettling but true to find a considerable overlap between the general
directions charted by the current Court and the general directions
charted by Republican Party platforms over the last two decades. There
can be no doubt that the transformation in the federal judiciary,
produced over the last twenty years, has been a product of political
forces, and in particular of a self-conscious effort, by Republicans in
the White House and the Senate, to ensure a judiciary of a certain
stripe. This effort to transform the federal judiciary has been quite
successful--in part because President Clinton, to his credit, generally
made centrist appointments, on the Supreme Court and on the lower
courts. In fact it is hard to think of any non-centrist appointment by
President Clinton within his eight years in the White House. By
contrast, President Bush and particularly President Reagan made a
sustained effort to appoint young, conservative judges, many of whom
continue to have a dominant influence on the lower courts, charting its
basic directions.
III. The Senate's Current Role
If President Bush follows the path set by his predecessors, and if
the Senate remains passive, what might the future look like' We could
easily imagine a situation in which federal judges
strike down affirmative action programs, perhaps
eliminating such programs entirely;
strike down campaign finance reform;
invalidate portions of the Endangered Species Act and
the Clean Water Act;
reinvigorate a controversial understanding of the
Second Amendment, so as to disable Congress and the states from
enacting gun control legislation;
elevate commercial advertising to the same basic
status as political speech, thus preventing controls on
commercials by tobacco companies (among others);
further reduce congressional power under the commerce
clause;
generally limit democratic efforts to prevent disabled
people, women and the elderly from various forms of
discrimination;
significantly extend the reach of the ``takings''
clause, thus limiting environmental and other regulatory
legislation;
ban Congress from allowing citizens to sue to ensure
enforcement of the law;
and much more.
From the constitutional point of view, what would be most
troublesome about such a future would not be the results. It would be
the large transfer of power from democratic branches to the federal
judiciary. For people of varying political commitments, this transfer
of power should be quite troublesome. The conservative attack on
``liberal judicial activism'' is now out of date, but it had a great
deal of merit. Conservative judicial activism is not better.
Should anything be done about the situation? In an ideal world,
neither Democrats and Republicans would have to think, most of the
time, about the political convictions of judicial nominees. In such a
world, both Republicans and Democrats would insist on high-quality
judges who would decide cases based on legal grounds that could be
accepted by people with diverse views. As I have suggested, rule by
left-wing judges is as bad as rule by right-wing judges. In the 1970's,
I believe that Republicans were right to attack undemocratic, overly
ambitious rulings of the Warren Court. Yet by focusing so carefully on
judicial appointments, recent officials have also produced undemocratic
judiciary, one with far too little respect for the prerogatives of the
elected branches.
If President Bush seeks judges with political missions, there is
only one remedy. As a minimal step, the Senate should be prepared to
block any effort by Mr. Bush to fill the courts with people of a
particular ideological stripe. Of course the Senate has the power to
refuse to consent to a presidential appointment; and the Senate should
deny its consent to nominees who cannot demonstrate that they have a
healthy respect for democratic prerogatives, and will refuse to
participate in any general effort to engraft new constitutional
limitations on congressional power. Justices Scalia and Thomas have
been distinguished members of the Court, and their voices deserve to be
heard. But a federal judiciary that follows their lead would make
unacceptable inroads on democratic self government. The Senate should
not permit this to happen.
Under the Constitution, the Senate also has power to provide
``advice'' to the president. As we have seen, the Constitution's
framers intended the Senate's ``advice and consent'' role to provide
security against what they greatly feared: an overreaching president
willing to dominate the judiciary. The Senate should reclaim its
advisory role,collaborating to ensure the creation of a modest, and
properly balanced, federal judiciary. The Senate would be well within
its rights to insist on a role in ``advising'' the President about the
appropriate mix of federal judges, on the lower courts as well as the
Supreme Court. It would be most surprising if mutual agreeable
accommodations could not be worked out.
A clarification: If the Court lacked anyone with Justice Scalia's
views, and if it was tilted to the left, it would be appropriate to
confirm someone like Justice Scalia, and perhaps even appropriate to
insist on someone like Justice Scalia. A successful effort by
Democrats, to create a left-wing judiciary with similar hubris, would
properly meet with an aggressive Republican response.
Conclusion
In the context of the judiciary, the idea of ``ideology'' is a
complicated one. Some people seem to think that they really know how to
interpret the Constitution, and speak and write as if everyone who
disagrees has an ``ideology.'' But it is better to think that there are
several reasonable approaches to interpreting the Constitution, and
that in a democratic society, it is desirable to ensure a reasonable
mix.
No one really doubts that ``ideology,'' in terms of general
approach, or patterns of likely votes, is relevant to the nomination
and confirmation of federal judges. Everyone would consider certain
views out of bounds. In the present circumstances, it is appropriate
for the Senate to impose a high burden of proof on presidential
nominees, in order to ensure that the federal judiciary has an
appropriate mix of views, and does not accelerate the current trend
toward an unacceptably aggressive role for federal judges in the
constitutional order.
Chairman Schumer. Thank you, Professor Sunstein, for
excellent testimony once again.
Our next witness is Professor Eugene Volokh. Professor
Volokh now serves as professor of law at the University of
California at Los Angeles. He teaches and has widely published
on constitutional law, including religious freedom, civil
rights, and freedom of speech. Professor Volokh received his
undergraduate and law degrees from UCLA, and after clerking on
the Ninth Circuit Court of Appeals he clerked for Associate
Justice Sandra Day O'Connor on the Supreme Court of the United
States.
Professor Volokh?
STATEMENT OF EUGENE VOLOKH, PROFESSOR OF LAW, UNIVERSITY OF
CALIFORNIA AT LOS ANGELES, LOS ANGELES, CALIFORNIA
Mr. Volokh. Thank you very much. It is great pleasure to be
here.
I wanted to make a few points, all of which converge on my
basic point, which is that the Supreme Court as it is today is
a fundamentally mainstream institution with mainstream views.
And the conservatives, such as they are called, on the Supreme
Court are also mainstream in their views, albeit, of course, as
one might gather, somewhat toward the conservative side of the
mainstream.
This, in fact, echoes something that I think Mr. Cutler had
said earlier that, in fact, the Supreme Court today does
exhibit the virtues of moderation that people been asking for.
And let me try to support this with particular facts about the
Court's recent record.
The Constitution is indeed a shield to be used by the
people against the Government. At the same time, it is an
empowering of the Government, it is a creation of the
Government. There is no doubt that both the Federal Government
and the State governments are properly the repositories of
great power. There is equally no doubt the Constitution
constrains them, and that the courts in our system of
government enforce some of those constraints.
Those constraints come from the Bill of Rights and those
constraints come from the structural provisions of the
Constitution. It is quite clear that the text of the
Constitution was intended to impose some pretty serious
structural constraints in the name of shielding the people
against the Federal Government on the Federal Government. That
is clear from the text, from the original meaning, and it has
been pretty much a fundamental part of our constitutional
structure.
The Supreme Court enforces both the Bill of Rights and the
structural constraints. It enforces them against the Federal
Government and against the State governments. In recent years,
it has struck down at a somewhat higher rate Federal laws than
before. I think at a somewhat lower rate has it struck down
State courts than, say, the Warren Court had. But it is
certainly supposed to enforce the constraints against both
kinds of government.
It is interesting if you look at Federal statutes held
unconstitutional by the Rehnquist Court, not including this
term just because they weren't included in this last, there
have been about 30. Fifteen of them have involved Bill of
Rights protections, and the Supreme Court concluded, often in a
way that cut across political lines, that certain Federal laws
violated those rights.
Ten of the 15 involved the First Amendment. In fact,
Justice Kennedy, for example, who is a conservative on the
Court in many respects, has taken a rather broad view of free
speech. Justice Breyer has taken a rather narrow view of free
speech. Chief Justice Rehnquist and Justice O'Connor have also
taken a fairly narrow view, whereas Justices Souter and Thomas
have a somewhat broader view.
So in those areas I think we will all agree--we may
disagree as to the particular decisions that were rendered, but
I think we will all agree that it is quite proper for the Court
to enforce the constitutional constraints against both the
Federal Government and State governments. That is its role in
our system.
Likewise, I would say that it is proper for the Court to
enforce the indubitable structural constraints that the
Constitution imposes on the Federal Government. Of the 30
cases, about 5 have involved separation of powers provisions,
things like the Export-Import Clause and such, and about 10 of
them have involved the question of substantive Federal power.
These are, in some respects, the most controversial ones.
But, again, my first point is that the restraints on Federal
power are part of the Constitution. They were clearly
understood by the Framers. They, in fact, believed they were to
be the most important part of the shield that the Constitution
erects in order to protect against the Federal Government. And
I think it would be improperly activist for the Court to
ignore, to willfully set aside these clear constitutional
constraints, although, of course, there can be debate about the
proper definition of the scope of those constraints.
My second point is that if you look at the Court today, it
is composed of two wings with questions of Federal power,
setting aside the Bill of Rights provisions, but substantive
power. One wing would say that the Federal Government has
pretty much 100 percent of the power, and the other one would
say the Government has pretty much 95 percent of the power.
Now, there have been some pretty prominent debates
naturally in the course of litigation, especially cases that
come before the Supreme Court, they are going to be at the
cusp, at the boundary, at the place of debate just by the
nature of the way the cases come before the Supreme Court. But
the remaining 95 percent of the stuff is almost never debated.
It is quite clear that the Federal Government has substantial
powers over manufacture of goods, over commerce in goods,
interstate and intrastate commerce in goods, much broader power
than was generally understood throughout American history. But
probably it is proper that it now has this broader power
because, in fact, the scope of commerce has expanded so much.
The question is does it have all the power. Do those
provisions of the Constitution that constrain Federal power,
the enumerated powers provisions--are they, in fact, a nullity?
Should they just be completed ignored or should they be given a
certain degree of meaning?
Now, the way I have framed this issue, you probably have
some sense of where I probably would come out on this, but I
would quite acknowledge that the view of the four liberals on
the Court of the 100-percent Federal power provision, I think,
is a mainstream position. There are arguments in favor of that.
The view of the other side is also eminently a mainstream
position.
It does involve the striking down of certain Federal
statutes, and that is not something that the Court should ever
do lightly. Nonetheless, it seems to me that it is something
that is well within the mainstream, well within the
understanding of the Framers of the Constitution, as well as
the understanding of American constitutional tradition.
Let me just mention a couple of specific points on this.
First of all, if you look at the cases which involve the
conclusion that the Federal Government just lacks certain
enumerated powers--the Lopez case involving the Gun-Free School
Zones Act, the Morrison case involving the Violence Against
Women Act, the City of Boerne case involving the Religious
Freedom Restoration Act--all of them involved actually really
quite substantial recent expansions of the asserted claims of
Federal power.
Historically, the Court has rarely struck down
Congressional acts because Congress has generally been very
careful to really pay attention to things that involve
interstate commerce, or at least commerce. When you are talking
about the regulation of non-commercial activity that has been
traditionally part of the scope of State power rather than
Federal power, it makes sense that the Court would look to the
Constitution and conclude that there are certain restraints on
the Federal Government there.
It is interesting, by the way, to note that one of those
decisions, the Boerne decision, was, on the question of Federal
powers, 7-0. Two Justices didn't reach it, and of the seven
Justices, Justices Stevens and Ginsburg took the view that
Congress had exceeded its powers.
Sovereign immunity decisions rest on somewhat different
issues. I think that there are much more serious criticisms
that could be leveled against them, as well as defenses. But
they also come from a tradition of over 100 years of explicit
judicial understanding and substantial Framing-era evidence
that, rightly or wrongly -and by the way, I am no fan as a
policy matter of sovereign immunity--the Framers understood the
state as retaining certain limited immunities against damages
remedies under Federal statutes. So, again, these are very
mainstream decisions.
Likewise, some of the decisions on the Bill of Rights side
that Professor Sunstein criticizes are also very mainstream
decisions. In fact, the notion that the Constitution has
something to say about restrictions on speech and association,
even if enacted in the name of campaign finance reform, the
notion that it has something to say about commercial
advertising, and the notion that it has something to say about
affirmative action and racial preferences hardly is
controversial or outside the mainstream notion.
On commercial advertising, Justice Stevens, alongside of
Justice Thomas, have been serious advocates of the notion that
freedom of speech includes the freedom of speech that is aimed
to persuade people to buy products. On campaign finance speech
restrictions and association restrictions, likewise there have
been strong voices on both the left and the right in favor of
the notion that the First Amendment does protect those rights;
likewise with regard to racial preferences and affirmative
action.
So it seems to me one can agree or disagree as a policy
matter with some of the things the Court has been saying, but
this is an eminently mainstream Court. It is mainstream in the
sense that it takes seriously the notion of using the
Constitution as a shield, a modest shield, but still as a
shield against government power, both Federal and State.
It is mainstream in the fact that it acknowledges the
Federal Government has tremendous powers, powers that are much
greater than had been understood many times in the past, but at
the same time powers that are in some measure limited. So it
seems to me whatever one might say about this, this is a
mainstream Court and the conservative wing of the Court is also
firmly part of the mainstream.
[The prepared statement of Mr. Volokh follows:]
Statement of Eugene Volokh, Professor of Law, University of California,
Los Angeles
Mr. Chairman, Senator Sessions, thank you for inviting me to
address this very important topic. My name is Eugene Volokh, and I'm a
professor of law at the University of California at Los Angeles.
The chief point I'd like to make today is that the Supreme Court's
recent jurisprudence, including the views of the Court's more
conservative members, has been firmly within the mainstream of American
constitutional thought. One may agree or disagree with this
jurisprudence, but one has to acknowledge that it's entirely
mainstream.
The substantive federal power decisions (United States v. Lopez,
514 U.S. 549 (1995), City of Boerne v. Lopez, 521 U.S. 507 (1997), and
United States v. Morrison, 529 U.S. 598 (2000)) are excellent examples
of this sort of mainstream, eminently justifiable constitutional
decisionmaking. The Constitution clearly sets up a federal government
of enumerated powers-this is one of the fundamentals of James Madison's
scheme. That's clear from the text of the document, and from all the
contemporaneous historical evidence.
By very mildly reining in federal power, the Supreme Court has
simply reaffirmed this fundamental constitutional principle. In fact,
in one of these cases, Boerne, even Justices Stevens and Ginsburg
agreed that the Congress had overreached its enumerated powers. And in
Jones v. United States, 529 U.S. 848 (2000), all nine Justices (in an
opinion written by Justice Ginsburg) took the view that applying a
federal arson statute to ``traditionally local criminal conduct'' with
no connection to commercial activity would at least pose a very serious
constitutional problem.
Moreover, even in Lopez and Morrison, the debate was between the
more liberal Justices' position that Congress has powers that are 100%
unlimited (except by the Bill of Rights), and the more conservative
Justices' position that Congress has powers that are 95% unlimited.
Congress still has tremendous powers, even in areas of traditional
state influence. The Court simply recognized that at some point even
Congress's great powers go too far. The decisions are important, but
they are mostly symbolic constraints. They do not seriously interfere
with Congress's power to legislate.
Likewise, the state sovereign immunity decisions are part of a
tradition that goes back a century and a half. There's a contentious
historical debate about how the Constitution should be interpreted on
this question; I don't know which side is right on this matter. But
though as a policy matter I do not like sovereign immunity, it's clear
to me that the Court's decisions follow a longstanding tradition, and
are consistent with the great majority of the precedents.
Though the Rehnquist Court has not tried to transfigure the legal
system by overturning state laws anywhere nearly as much as the Warren
Court did, it has been striking down federal laws more often than past
courts have. But this is largely because there are now more federal
laws than in the past, especially in constitutionally sensitive areas.
Before the advent of the Internet, most speech restrictions (except
in the specialized area of radio and television broadcasting) were
imposed by states. Congress had never passed the Book Decency Act or
the Movie Decency Act. But when Congress stepped in to restrict speech
in the new nationwide (and international) medium of the Internet,
naturally the Court stepped in, and imposed on Congress the same rules
that it had long imposed on the states.
Until recent years, violent crime-except in the context of clearly
interstate transactions-was largely seen as a state matter. But when
Congress enacted laws such as the Gun-Free School Zones Act or the
Violence Against Women Act, the Supreme Court had to step in and
consider whether Congress had overreached the constitutional
boundaries. That is the Court's job, and the further Congress tries to
reach, the more likelihood there will be that there is indeed
overreaching.
Chairman Schumer. Thank you, Professor Volokh.
Our next witness is Marcia Greenberger. She is the founder
and co-president of the National Women's Law Center. She is a
recognized expert on sex discrimination and the law, and has
participated in the development of key legislative initiatives
and litigation protecting women's rights, particularly in the
areas of education, employment and health. She has been counsel
in landmark litigation establishing new legal precedents for
women and the enforcement of laws prohibiting discrimination in
employment, education, athletics and health, and is the author
of numerous published articles, including a chapter on key
legal and policy issues in one of the first medical texts on
women's health published in 1998.
She received her B.A. with honors in 1967 and her J.D. cum
laude in 1970 from the University of Pennsylvania. In 1972, she
started and became the director of the Women's Rights Project
at the Center for Law and Social Policy, which became the
National Women's Law Center in 1981.
Thank you very much, Ms. Greenberger, for coming.
STATEMENT OF MARCIA D. GREENBERGER, CO-PRESIDENT, NATIONAL
WOMEN'S LAW CENTER, WASHINGTON, D.C.
Ms. Greenberger. Thank you, Senator Schumer. I appreciate
the invitation of the Committee to testify today.
As you said, I come as co-president of the National Women's
Law Center, which has since 1972 been integrally involved in
the major efforts to secure and defend women's legal rights.
With me is Judith Appelbaum, the Center's vice president and
director of employment opportunities.
We cannot imagine a more important topic, of course, for
the rights of women, their very health and safety, and for all
people in this country. I have a fuller written statement that
I would appreciate being submitted to the record.
Chairman Schumer. Without objection, it is in the record.
Ms. Greenberger. Thank you.
Well, in answering the question, should ideology matter,
let me begin with illustrations of the real people behind some
of those cases and principles that have been discussed earlier
and the way those actual peoples' lives have been affected by
the judicial philosophy of the Justices who have ruled on their
fate.
Let me say, first of all, in recent years, often by 5-4
decisions and with vigorous dissents, we have seen the judicial
philosophy of Justices take away key rights and the very
authority of Congress to protect those rights for countless
Americans.
Take Patricia Garrett, a registered nurse who was demoted
by the hospital she worked for after missing work in order to
receive radiation and chemotherapy treatments for breast
cancer. Five Justices on the Supreme Court denied her the
ability to hold her employer accountable under the Americans
with Disabilities Act. These five Justices said Congress'
effort in passing that Act to protect her and other disabled
Americans like her was unconstitutional.
Or take Christy Brancala, a young woman who was sexually
assaulted on her college campus. The same five-member majority
of the Supreme Court, again with four Justices bitterly
dissenting, denied her the right to sue her attackers, a right
that Congress had wanted her to have under the Violence Against
Women Act it passed.
The witness just preceding me talked about these positions
as being well within the mainstream. Sometimes, of course, the
mainstream is in the eye of the beholder, and if the courts are
filled with judges and justices who take one particular
position, perhaps that turns that position more into a
mainstream position than one might have ever expected in the
past.
But certainly for the women across the country who worked
their hearts out to get the Violence Against Women Act passed,
and their male allies in Congress and across the country who
recognized the dramatic effect that violence against women has
on women's ability to move freely across this land, to engage
in work, to effect interstate commerce, and the mountains of
legislative history that this Senate and the House amassed when
it passed the Violence Against Women Act, they were shocked to
find five Justices saying that Congress had no constitutional
authority to make those findings, could not see the effect of
violence against women and its dramatic connection to the
Commerce Clause, let alone the kind of discrimination that
women faced in courts in trying to assert their rights that
many State attorneys general presented to the Supreme Court in
support of the constitutionality of the Violence Against Women
Act.
That same razor-slim majority has denied others, women and
men, the ability to hold their employers accountable for age
discrimination in the workplace, if they happen to work for a
State agency. The judicial philosophy driving these five judges
could be extended, I fear, to limit the rights of our citizens
under many other bedrock laws. And I will say again these are
laws that women fought for, with men, laws like the Equal Pay
Act and the Family Medical Leave Act, to name just two.
Individual rights, our most fundamental rights, are at
risk. If the Supreme Court has a shift of even one key Justice
and if lower courts are filled with judges who are antagonistic
to Roe v. Wade, millions of women could see their health and
even their lives placed at risk.
Clean air and clean water have been mentioned. I want to
add to the list medical privacy. Statute after statute have
been narrowed. Employment discrimination rights, education
opportunities--these are all things that we thought Congress
had passed, intending to protect all of us, and we have seen
judges, and especially now also the Supreme Court narrowing
those rights.
So does judicial philosophy and ideology on the courts
matter? Of course it matters in the most fundamental way to
each of us, to our children, no matter where we live all across
the country.
As has been discussed, taking judicial philosophy account
in judicial confirmations is nothing new. It is obviously
nothing new in terms of the history of our country and the role
of the Senate. It is certainly nothing new with respect to the
President in his selection of those nominees.
We now, as has also been discussed, have a President who
has said in a very straightforward way that he is looking at
judicial philosophy in selecting his own nominees. Mr. Cutler
described earlier a time that he would like to harken back to,
a time when President Eisenhower did not look at judicial
philosophy as the touchstone of his selections.
He, as some have pointed out, may have regretted the fact
that he didn't look at judicial philosophy and give it more
weight, since it has been described as his saying it was some
of the biggest mistakes that he made. But that obviously also
affected the role that the Senate chose to play, not the
constitutional prerogatives that the Senate could have asserted
if the times were different, as they so clearly are now.
I want to also refer to another scholar who had been
mentioned earlier today, Professor Charles Black. He said the
Constitution permits, if it does not compel, the taking of a
second opinion from a body just as responsible to the
electorate and just as close to the electorate as is the
President. And this second opinion, as Professor Black and many
others have shown, should be formed independently. As has also
been discussed, the judiciary is our third and independent
branch, independent from the executive and from the
legislature, and it should not be the province of either one.
I want to make a couple of other points, given how critical
the issues are today, and that is in the scrutiny that the
Senate owes the American people for the nominees for lifetime
appointment to the judicial branch of Government, it is of
critical importance that any doubts that a Senator may harbor
about a nominee's judicial philosophy in the critical areas
that have been outlined today and many others must be resolved
in favor, as Senator Byrd has said, of the interests of our
country and its future.
No individual person has a right to a lifetime appointment
to our bench, but the American people have a right to expect
that their elected representatives will protect their
constitutional and legal protections that have been at the core
of what has made this country the democracy that it is.
As a part of the record, I have asked that a report that
the National Women's Law Center presented, ``The Supreme Court
and Women's Rights: Fundamental Protections Hang in the
Balance,'' be included in the record. That goes into much
greater detail about some of these rights that are hanging in
the balance.
I do want to just say a couple of other quick things about
the scrutiny. When nominees come before the Senate, it is, as
we have heard in most dramatic detail today, so clear that
people mean very different things when they talk about not
wanting to see an activist Court or respecting precedent.
We have heard generalized statements about being in the
mainstream or following precedent, but we see just by the
testimony that preceded me how differently individuals
interpret those very general phrases. It is essential that in
these hearings the judicial philosophy, as distinct from
positions on specific cases to come before those judges if they
are confirmed, be explored.
I want to say that in looking at and taking the measure of
a nominee, some key lessons must be learned from the past.
First, a nominee's previous writings and statements should be
taken seriously. Confirmation conversions where nominees claim
that they did not mean what they said or they said it just to
be provocative should be viewed with strict and most skeptical
scrutiny.
Moreover, if a nominee has little or no record on relevant
issues, that nominee bears the burden of assuring the Senate
that his or her judicial philosophy is acceptable. This is
particularly important when, as now, the President has made
clear that he is looking for judicial nominees who fit a
particular mold.
The White House and the Justice Department have the
opportunity and ability to thoroughly vet the judicial
philosophy of the potential nominees, and it is important that
the Senate do the same. Thus, a judicial nominee who appears in
his or her confirmation hearing to be a blank slate is likely
to have revealed him or herself to administration vettors to be
nothing of the kind.
As one legal scholar put it, ``No judge is a blank slate.
Every judge has views on important issues before assuming the
bench, and those preexisting beliefs influence decisions.
Whether stated or not, the views still exist. Thus, a judicial
candidate's refusal to answer questions does not communicate
open-mindedness, just secrecy.''
I hope that time does permit a review of some of the
discussion of what happened in the judicial nomination and
confirmation hearings of Judge Bork, and ultimately Clarence
Thomas as well, and especially in the context of Clarence
Thomas, where his very generalized answers about not having
positions on key issues such as Roe v. Wade and coming to the
Court with a completely open mind and having never even
discussed Roe v. Wade at any point that he could remember, even
though that decision had come down when he was in law school,
played a very prominent role in his confirmation.
He assured this Senate he did not have an ideology to take
to the Court, and 8 months after being on the Supreme Court
voted to overturn Roe v. Wade and has repeatedly and
consistently said that he thinks that Roe was wrongly decided.
Reporters have since cited sources saying that in their work
with Clarence Thomas to prepare for the confirmation hearings,
he was directed to say nothing about his views on Roe v. Wade,
lest if he were more open with the Senate it would have
interfered with his ultimate confirmation.
It is essential that risks, in short, and the concerns of
potential nominees be placed not at the feet of the American
public to bear, but rather that the burden be on the nominee to
assure the Senate that they belong and earn and deserve that
lifetime appointment.
Thank you.
[The prepared statement of Ms. Greenberger follows:]
[Additional material is being retained in the Committee
files.]
Statement of Marcia D. Greenberger, Co-President, National Women's Law
Center
My name is Marcia Greenberger, and I appreciate your invitation to
testify today. I am Co-President of the National Women's Law Center,
which since 1972 has been at the forefront of virtually every major
effort to secure and defend women's legal rights. With me is Judith
Appelbaum, the Center's Vice President and Director of Employment
Opportunities.\1\
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\1\ I would also like to acknowledge the assistance of two Center
legal fellows, Nicole Deddens and Susannah Voigt, in the preparation of
this testimony.
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I. Introduction: Why the Senate's Confirmation Role Is Critical
The issue that is before the Subcommittee today is one that is of
central importance to the American people. What is at stake is nothing
less than the composition, for decades to come, of one of the three
separate and equal branches of our government. While more public
attention is generally focused on the process of selecting the
occupants of the other two branches--through the Presidential and
Congressional elections--the judiciary has at least as much impact on
the lives of citizens, through its role in interpreting and applying
the laws of the land that govern us, including the fundamental rights
and liberties protected by the Constitution. Moreover, because members
of the judicial branch are appointed with lifetime tenure, the scrutiny
that they receive during the nomination and confirmation process is the
only form of accountability for them that our system provides, short of
the extreme--and extremely rare--remedy of impeachment. That is why the
way in which the Senate carries out its constitutional role in the
confirmation of judges is of such paramount importance of all
Americans.
For women, and the fact for all Americans, over the last 30 years
the federal courts have allowed important advances to be made in the
elimination of barriers to equal opportunity for all. Through their
interpretations of the equal protection and privacy guarantees of the
Constitution and of federal statutes aimed at eradicating sex
discrimination and arbitrary barriers to the advancement of women,
minorities, the disabled and older Americans, the federal courts have
given life to the protections our laws provide for important rights and
liberties--including the right to equal opportunity in the workplace,
in education, and indeed in all facets of society, as well as a woman's
right to choose to terminate a pregnancy. The role of the Supreme Court
in protecting women's rights, with some barely surviving by 5 to 4
margins, and the ways in which many hard-fought gains have been
weakened by slim majorities of the Court in recent years, are the
subject of a National Women's Law Center report entitle The Supreme
Court and Women's Rights: Fundamental Protections Hang in the Balance,
which is attached to this testimony and which I would like to submit
for the record. This report documents in detail how a shift of even
just one vote on the Court could turn back the clock for women's core
legal rights.
While our report focuses on the Supreme Court, it important to
recognize the enormous power that lower federal courts, especially the
Courts of Appeals, also wield over these and other critical issues. The
vast majority of cases in the federal system are never accepted for
review by the Supreme Court, and the highest level of review available
is a Court of Appeals.\2\ Indeed, the number of cases heard by the high
court has declined in recent years.\3\ Moreover, while some have
suggested that lower court nominations require less scrutiny because
these courts are constrained by Supreme Court precedents, the Supreme
Court's jurisprudence in many areas leaves a great deal of latitude for
lower courts. For example, the Supreme Court's decision in Planned
Parenthood v. Casey, 505 U.S. 833 (1992), adopted a highly subjective
standard that allows states to impose restrictions on abortion as long
as they do not place an ``undue burden'' on a woman who seeks to
terminate her pregnancy. When is a burden ``undue''? The Supreme Court
gave little guidance, and some lower court judges decided that even
substantial obstacles placed in a woman's path were not ``undue. `` A
full eight years elapsed between the time the Supreme Court established
the standard and the time it first reviewed any lower court's
application of it in 2000, and countless women had their right to
choose irrevocably lost by erroneous lower court rulings in the
meantime. On other issues, some judges have gone so far as to disregard
precedents of the Supreme Court altogether.\4\
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\2\ While 54,088 cases were acted on in 1999 by the 12 Courts of
Appeals, only 83 cases were argued before the Supreme Court in 1999.
See, SUPREME COURT OF THE UNITED STATES, 2000 YEAR END REPORT ON THE
FEDERAL JUDICIARY, ; JUDICIAL BUSINESS OF THE UNITED STATES
COURTS: 2000 ANNUAL REPORT OF THE DIRECTOR, ; See also, Edward A. Purcell, Jr.
Reconsidering the Frankfurtian Paradigm: Reflections on Histories of
Lower Federal Courts, 24 L. & SOC. INQUIRY 679, 722 (1999) (citing
statistics that suggest that over 95% of decisions by the court of
appeals are final); Ashutosh Bhagwat, Separate But Equal? The Supreme
Court, The Lower Federal Courts, and the Nature of the ``Judicial
Power,'' 80 B.U.L.REV. 967, 984-5 (2000) (demonstrating that as a
practical matter federal courts are not and have not been under the
close supervision of the Supreme Court since ``the threat of review by
the Supreme Court is extremely limited, given practically and
voluntarily adopted constraints on the Court's docket, and the huge
volume of federal litigation '').
\3\ See, e.g., Arthur D. Hellman, The Shrunken Docket of the
Rehnquist Court, 1996 S. CT. REV. 403; David M. O'Brien, Join-3 Votes,
the Rule of Four, the Cert. Pool, and the Supreme Court's Shrinking
Plenary Docket, 13 J.L. & POL. 779, 807 (1997); ADMINISTRATIVE OFFICE
OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES 71 (2001).
\4\ See, e.g., Hopwood v. State of Texas, 78 F.3d 932 (1996), in
which a panel of the Fifth Circuit, explicitly declining to follow the
Supreme Court's ruling in Regents of Univ. of Cal. v. Bakke, 438.S. 265
(1978), held that race-based affirmative action can never be used to
further diversity in institutions of higher education, id. at 944;
United States v. Dickerson, 166 F.3d 667, 692 (4th Cir.
1999), rev'd 120 S.Ct. 2326 (2000) where the appeals court held that,
contrary to 30 years of precedent, the Court's decision in Miranda v.
Arizona, 384 U.S. 436 (1966), was not binding in federal courts. The
Supreme Court subsequently reversed this decision by a 7-2 vote.
Dickerson v. United States, 120 S.Ct. 2326 (2000).
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Lower court appointments also take on particular significance in
light of the current composition of many of those composition of many
of those courts. A majority of the Courts of Appeals are comprised of
majorities that reflect a conservative judicial philosophy. And the
extreme views of some Circuits, especially the Fourth, on the
fundamental legal issues of the day have been the subject of extensive
commentary.\5\ A tilt to the right has been exacerbated by the Senate's
refusal to confirm an inordinately high number of qualified nominees--
some 36 in all--to the Courts of Appeals during the last eight years,
thus disrupting the balancing process that normally takes place over
time as Administrations change. There are now over 30 open seats on the
Courts of Appeals. If these seats are filled with conservatives who
make it thought the Federalist Society screening process, and who fit
the mold of Justices Scalia and Thomas (whom President Bush has cited
as appropriate judicial role models), the overall ideological tilt of
the federal judiciary will shift even further to the right, with
serious repercussions for all those who look to the courts for the
protection of civil rights, women's rights, individual liberties, and
other fundamental values of our society. We will see even fewer of the
splits among the Circuits that normally trigger Supreme Court review,
and less of the kind of debate among different judicial perspectives
within panels of Circuit judges that can affect the outcome of cases
and the development of the country's jurisprudence.
---------------------------------------------------------------------------
\5\ See e.g., Brooke A Masters, Battle Brewing Over 4th
Circuit Nominees, The Washington Post, May 5, 2001, A1 (``Considered
the nation's most conservative appeals court, the 4th
Circuit has drawn national attention for its decisions limiting federal
power, upholding death sentences and narrowing the rights of citizens
to file environmental and civil rights law suits.''); Associated Press,
Helms Set to Back Nominee, Richmond Times-Dispatch, May 3, 2001, B4
(noting that the 4th Circuit is ``the nation's most
conservative appeals court'').
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Moreover, the very ability of Congress to protect the American
people is on the line. When the courts take an unduly narrow view of
the constitutional authority of Congress to pass legislation--as the
Supreme Court has done, to cite just a few examples, in striking down
the civil rights remedy in the Violence Against Women Act,\6\
invalidating the right of plaintiffs under the Americans with
Disabilities Act \7\ and the Age Discrimination in Employment Act \8\
to hold state employers accountable for their discrimination, and
striking down the Gun-Free School Zones Act \9\--they wipe away years
of hard legislative effort, ignore what often amounts to ``mountains''
of legislative history,\10\ substitute their judgment for that of
Congress (prompting Justice Breyer, in one dissent, to protest, ``The
Congress of the United States is not a lower court'' \11\). and,
because such rulings are based on the Constitution, leave little
opportunity for Congress to repair the damage. And while Congress can
and does enact ``restoration acts'' to undo the damage when the Court
misconstrues the language and intent of its statutes, as it has had to
do repeatedly for Title VII of the Civil Rights Act (prohibiting
discrimination in employment on the basis of race, sex, religion or
national origin), Title IX of the Higher Education Amendments
(prohibiting sex discrimination in education), as well as the laws
prohibiting discrimination on the basis of race, national origin, age
and disability, these legislative battles--as Members of this Committee
know all too well--consumer enormous amounts of time and energy that
could be better spent on moving forward a positive agenda for the
American people.
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\6\ U.S. v. Morrison, 529 U.S. 598 (2000).
\7\ Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356
(2001).
\8\ Kimel v. Fla. Bd. of Regents, 528 U.S. 61 (2000).
\9\ U.S. v. Lopez, 514 U.S. 549 (1995).
\10\ U.S v. Morrison, 529 U.S. 598, at 628 (2000) (Souter, J.,
dissenting).
\11\ Bd. of Trustees of Univ. of Ala. v. Garrett, 121 S.Ct 955, at
973 (2001) (Breyer, J., dissenting).
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For all of these reasons, with all that is at stake, the framers of
the Constitution wisely lodged the responsibility to appoint federal
judges not exclusively with the President, but with the Senate as well.
And having had that heavy responsibility conferred on this body, each
member of the Senate must carry out his or her ``advise and consent''
duty in a way that will protect and defend our most precious rights and
principles. It is to that subject that I now turn.
II. The Senate's Role in Judicial Confirmations
a. the senate's co-equal, independent role
The ``advise and consent'' language of the Constitution itself, and
the history of the framers' adoption of this formulation, make it clear
that the Constitution creates and independent role and set of
responsibilities for the Senate in the confirmation process.\12\ And,
as in so many other ways, the framers of the Constitution were right.
The judiciary, after all, is independent from the Executive and
Legislative branches, and indeed is sometimes called upon to resolve
disputes between the two. If the President were given a superior role
in judicial appointments, it would upset the neutrality of the
judiciary and the system of checks and balances of which it is a part.
Unlike Cabinet members or other appointments to the Executive branch,
judges do not work for the President or serve at the pleasure of the
President only while he (or someday, she) is in office. So while it may
be appropriate for Senators to give deference to a President's choices
of the personnel who will work for him and implement his policies in
the departments and agencies of the federal government--and even then,
deference is not a blank check--it would be entirely inappropriate to
give deference to the President's selection of judicial candidates.
---------------------------------------------------------------------------
\12\ See e.g., Donald E. Lively, The Supreme Court Appointment
Process: In Search of Constitutional Roles and Responsibilities, 59
S.CAL. L. REV. 551, 552-556 (1986); Henry Paul Monaghan, The
Confirmation Process: Law or Politics?, 101 HARV. L. REV. 1202, 1204
(1988); Gary J. Simson, Thomas's Supreme Unfitness--A Letter to the
Senate on Advise and Consent, 78 CORNELL L. REV. 619, 648-49 (1993);
David A. Strauss & Cass R. Sunstein, The Senate, The Constitution, and
the Confirmation Process, 101 YALE L.J. 1491, 1494-1501 (1992). See
generally, Charles L. Black, Jr., A Note on Senatorial Consideration of
Supreme Court Nominees, 79 YALE L.J. 657 (1970); Richard D. Freer,
Advice? Consent? Senatorial Immaturity and the Judicial Selection
Process, 101 W. VA. L. REV. 495; Albert P. Melone, The Senate's
Confirmation Role in Supreme Court Nominations and the Politics of
Ideology Versus Impartiality, 75 JUDICATURE 68 (1991); William G. Ross,
The Functions, Roles, and Duties of the Senate in the Supreme Court
Appointment Process, 28 WILLIAM & MARY LAW REVIEW 633 (1987); .
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The late Charles L. Black, Jr., said it well in an article in the
Yale Law Journal in 1970. After arguing that a Senator should let the
President have wide latitude in filling executive branch posts (``These
are his people; they are to work with him''), Professor Black
continues:
Just the reverse, just exactly the reverse, is true of the
judiciary. The judges are not the President's People. God
forbid! They are not to work with him or for him. They are to
be as independent of him as they are of the Senate, neither
more nor less.\13\
\13\ Charles Black, A Note on Senatorial Consideration of Supreme
Court Nominees, 79 Yale L.J. 657, at 660 (1970) (emphasis in original).
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At bottom, no judicial nominee enjoys a presumption in favor of
confirmation. Rather, as numerous legal scholars have shown, it is the
nominee who carries the burden of convincing the Senate that he or she
should be confirmed, and any doubts should be resolved against
confirmation.\14\ Articulating this shared view, Professor Chemerinsky
has written:
\14\ See e.g., Charles L. Black, Jr., A Note on Senatorial
Consideration of Supreme Court Nominees, 79 Yale L.J. 657 (12970);
Erwin Chemerinsky, October Tragedy, 65 S. CAL. L. REV. 1497 (1992);
Henry P. Monaghan, The Confirmation Process: Law or Politics?, 101
HARV. L. REV. 1202 (1988) David A. Strauss & Cass R. Sunstein, The
Senate, The Constitution, and the Confirmation Process, 101 YALE L.J.
(1992).
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Under the Constitution there is no reason why a President's
nominees for Supreme Court are entitled to any presumption of
confirmation. The Constitution simply says that the President
shall appoint federal court judges with the advice and consent
of the Senate. The Senate is fully entitled to begin with a
presumption against the nominee and confirm only if persuaded
that the individual is worthy of a lifelong seat on the Supreme
Court.\15\
\15\ Erwin Chemerinsky, October Tragedy, 65 S. CAL. L. REV, 1497,
1509 (1992)
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No person has an entitlement to a lifetime seat on the federal
bench, and if a nominee cannot clearly satisfy the Senate that he or
she meets all of the criteria for confirmation, the American people
should not be asked to bear the risk of entrusting that individual with
the reigns of judicial power. As Senator Robert Byrd said in the debate
over the elevation of Justice Rehnquist to Chief Justice, ``The benefit
of any doubt should be resolved in favor of the people of the States.''
\16\ He elaborated in the debate over the nomination of Clarence Thomas
to the Court: ``If there is a cloud of doubt, this is the last chance .
. . . if there is a doubt, I say resolve it in the interest of our
country and its future, and in the interest of the Court.'' \17\
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\16\ 132 Cong. Rec. S12,784 (1986) (statement of Senator Byrd).
\17\ 137 Cong. Rec. S14,633-44 (1991) (statement of Senator Byrd).
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The history of Supreme Court confirmations reflects the Senate's
own understanding of its proper role as an independent--indeed,
assertive--partner in the confirmation process. During its first
hundred years, between 1789 and 1900, 20 of 85 Supreme Court nominees
did not make it to the bench--they were rejected, withdrawn, or not
acted upon.\18\ Between 1895 and 1969, during a period in which many
Administrations did not use judicial philosophy as a driving selection
criterion, just one nominee was rejected.\19\ But in the last 30 years,
there has been a return to the original pattern, as five Supreme Court
nominations have failed, with an additional two prevailing only after
intense battles in the Senate.\20\
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\18\ JOHN MASSARO, SUPREMELY POLITICAL: THE ROLE OF IDEOLOGY AND
PRESIDENTIAL MANAGEMENT IN UNSUCCESSFUL SUPREME COURT NOMINATIONS iX-X
(1990)
\19\ See id.; Richard D. Freer, Advice? Consent? Senatorial
Immaturity and the Judicial Selection Process, 101 W. VA. L. REV. 495,
498 (noting that President Hoover's 1930 nomination of Chief Judge John
J. Parker of the Fourth Circuit was the only Supreme Court nomination
rejected by the Senate between 1896 and 1969).
\20\ Richard D. Freer, Advice? Consent? Senatorial Immaturity and
the Judicial Selection Process, 101 W. VA. L. REV. 495, 498.
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b. the standards senators should apply
In light of all that is at stake, and the Senate's constitutional
responsibility to determine who will be entrusted with life tenure on
the bench, the Senate must scrutinize the fitness of Judicial nominees
with extraordinary care. In addition to meeting the necessary
requirements of honesty, integrity, character, temperament and
intellect, to be confirmed to a federal judgeship a nominee should be
required to demonstrate a commitment to protecting the rights of
ordinary American citizens and the progress that has been made on civil
rights and individual liberties, including those core constitutional
principles that protect women's legal rights under the Equal Protection
Clause and the right to privacy (which includes contraception and
abortion) as well ass the statutory provisions that protect women's
legal rights in such fundamental areas as education, employment, and
health and safety.\21\
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\21\ As articulated by some 200 law professors in a May 8, 2001
letter to the Senate, attached hereto, the Senate should evaluate every
judicial nominee to ensure that he or she is found to: have an
exemplary record in the law; bring an open mind to decision-making,
with an understanding of the real-world consequences of their
decisions; demonstrate a commitment to protecting the rights of
ordinary Americans and not place the interests of the powerful over
those of individual citizens; have fulfilled the professional
obligation to work on behalf of the disadvantaged; have a record of
commitment to the constitutional role Congress plays in promoting these
rights and health and safety protections, and ensuring recourse when
these rights are breached.
---------------------------------------------------------------------------
There is widespread agreement among scholars and commentators that
it is absolutely appropriate, and indeed necessary, for Senators to
inquire into, and base their confirmation votes on, judicial nominees'
positions and views on these and other substantive areas of law.\22\
---------------------------------------------------------------------------
\22\ See e.g., Charles L. Black, Jr., A Note on Senatorial
Consideration of Supreme Court Nominees, 79 YALE L.J. 657 (1970); Erwin
Chemerinsky, October Tragedy, 65, S. CAL. L. REV. 1497 (1992); James E.
Gauch, Comment, The Intended Role of the Senate in Supreme Court
Appointments, 56 U. Chi. L. Rev. 337 (1989); Constitutional Roles and
Responsibilities, 59 S. CAL L. REV. 551 (1986); Albert P. Melone, The
Senate's Confirmation Role in Supreme Court Nominations and the
Politics of Ideology Versus Impartiality, 75 JUDICATURE 68 (1991);
William Rehnquist, The Making of a Supreme Court Justice, HARV. L.
REC., Oct. 8, 1959; William G. Ross, The Functions, Roles, and Duties
of the Senate in the Supreme Court Appointment Process, 28 WILLIAM &
MARY LAW REVIEW 633 (1987); David A. Strauss & Cass R. Sunstein, The
Senate, the Constitution, and the Confirmation Process, 101 YALE L.J.
1491 (1992).
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Professor Charles Black, reasoning that a judge's judicial work is
necessarily ``influenced and formed by his whole lifeview, by his
economic and political comprehensions, and by his sense, sharp or
vague, of where justice lies in respect of the great questions of his
time,'' concludes that a nominee's ``policy orientations are material--
and. . .can no longer be regarded as immaterial by anybody who wants to
be taken seriously, and are certainly not regarded as immaterial by the
President--it is just as important the Senate think them not harmful as
that the President think them not harmful.'' He summariezes:
The Constitution certainly permits, if it does not compel, the
taking of a second opinion on this crucial question, from a
body just as responsible to the electorate, and just as close
to the electorate, as is the President. It is not wisdom to
take the second opinion in all fullness of scope? \23\
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\23\ Charles L. Black, Jr., A Note on Senatorial Consideration of
Supreme Court Nominees, 79 YALE L.J. 657, 658 (1970).
Before he was a member of the Court, Chief Justice Rehnquist
reprimanded the Senate for its passive role in Supreme Court
confirmation proceedings in an article published in Harvard Law Record
in 1959. He quoted with approval a speech made by Senator Borah on the
Senate floor during the confirmation debate on John J. Parker in which
---------------------------------------------------------------------------
the Senator Said:
They (the Supreme Court Justices) pass upon what we do.
Therefore, it is exceedingly important that we pass upon them
before they decide upon these matters. I say this is great
sincerity. We declare a national policy. They reject it. I feel
I am well justified in inquiring of men on their way to the
Supreme Court something of their views on these questions.\24\
---------------------------------------------------------------------------
\24\ William Rehnquist, The Making of a Supreme Court Justice,
HARV. L. REC., 7-10 (Oct. 8, 1959).
This is nothing new; there is ample historical precedent for the
Senate to consider ideology, policy views, and judicial philosophy in
considering judicial nominations--dating back to George Washington's
nomination of John Rutledge as Chief Justice in 1795 and his rejection
by the Senate on the basis of his views on the Jay Treaty.\25\ When
President Wilson nominated Louis Brandies to the Court, in 1916, strong
opposition was expressed based on his history of fighting for the
regulation of factories and other progressive economic causes.\26\ When
President Lyndon Johnson proposed to elevate justice Abe Fortas to
Chief Justice in 1968, his confirmation proceedings focused heavily on
his prior rulings (and those of the Warren Court majority) that
strengthened the rights of the accused and First Amendment protection
of obscenity, and a filibuster blocked his elevation to Chief
Justice.\27\ It is worth noting that during the Fortas debate, Senator
Thurmond made the following remarks:
---------------------------------------------------------------------------
\25\ James E. Gauch, Comment, The Intended Role of the Senate in
Supreme Court Appointments, 56 U. CHI. L. REV. 337, 358-363 (1989).
\26\ Paul A. Freund, Appointment of Justices: Some Historical
Perspectives, 101 HARV. L. REV. 1146, 1151-1152.
\27\ ROBERT A. KATSMAN, CONGRESS AND THE COURTS 24-25 (1997).
Questions about Fortas' financial dealings, which led to his
resignation from the Court, were not raised until later, in 1969. HENRY
ABRAHAM, JUSTICE PRESIDENTS AND SENATORS: A HISTORY OF THE U.S. SUPREME
COURT APPOINTMENTS FROM WASHINGTON TO CLINTON 219 (1999)
It is my opinion further, that if the Senate will turn down
this nomination we will thus indicate to the President and
future Presidents that we recognize our responsibility as
senators. After all, this a dull responsibility. The President
merely picks or selects or chooses the individual for a
position of this kind and the Senate or chooses the individual
for a position of this kind background, into his character and
integrity, and into his philosophy, and determining whether or
not he is a properly qualified person fill the particular
position under consideration at the time.\28\
---------------------------------------------------------------------------
\28\ 114Cong. Rec. 28774 (1968) (statement of Sen. Thurmond)
(emphasis added).
A number of other prominent Senators, of both parties, also have
expressed the view that the philosophy of a nominee is an appropriate
subject of Senate inquiry and an appropriate basis for a Senator's
---------------------------------------------------------------------------
vote. For instance, Senator Robert Byrd has said,
[I] is asserted that Senate inquiries into a nominee's fitness
for office [are] limited to qualifications, but that others
areas of obvious concern, notable his or her personal
philosophy or ideology, are off limits to Senate scrutiny. It
is a corollary of proponents of this view that the Senate is
obligated to place its stamp of approval on a nominee so long
as he or she can demonstrate the requisite minimum
qualifications for the office in question. All of these
assertions have been made time out of memory but, unlike love
they do not become better or truer the second or third time
around. Indeed, if anything, their repetition offends propriety
because they are transparent appeals to political expediency
and opportunism and intended to deter the responsible exercise
of the advice and consent function.\29\
---------------------------------------------------------------------------
\29\ 133 Cong. Rec. S10,829-01 (daily ed. July 29, 1987) (statement
of Sen. Byrd).
---------------------------------------------------------------------------
Similarly, Senator Lott has said:
We should look not only at their education, background, and
qualifications, but also--particularly when it comes to circuit
judges--what is their philosophy with regard to the judiciary
and how they may be ruling. We have a legitimate responsibility
to ask those questions. . .again these are not insignificant.
There are big time, lifetime, high paid jobs that are going to
affect our lives, and if we do not know who they are, if we do
not ask questions, then we will be shirking our
responsibilities.\30\
---------------------------------------------------------------------------
\30\ 142 Cong. Rec. S9,418 (daily ed. Aug. 1, 1996) (statement of
Sen. Lott).
Senators therefore have a duty to study a nominee's record and to
probe during the confirmation hearing in order to form a judgment about
what kind of jurist the nominee will be, based on judicial philosophy
and the nominee's views on what Professor Black called ``the large
issues of the day.'' This does not mean asking a nominee for his or her
personal views on questions of religion or morality or how he or she
has voted on ballot measures in the privacy of the voting booth. It
does mean, as reflected in past practice, probing into a nominee's
views on the correctness of important Supreme Court precedents
establishing the right to privacy and its application in Roe v. Wade,
or the appropriate standard of scrutiny under the Equal Protection
Clause for sex- or race-based classifications, or the scope of
Congress' authority under the Commerce Clause or the Fourteenth
Amendment to enact civil rights protections. It also means that a
nominee's writings or statements should be taken seriously.
Confirmation conversions should be viewed with ``strict scrutiny.''
Carrying out the Senate's responsibility also means that if a
nominee has little or no relevant record, he or she bears the burden of
assuring the Senate of his or her commitment on key issues and
principles. This is particularly important when, as is currently the
case, there is a President in office who has made clear that he is
looking for judicial nominees of a particular type, in this case those
in the mold of Justices Thomas and Scalia. The White House and Justice
Department have the opportunity and ability to thoroughly vet potential
nominees, before they are sent to the Senate, to ensure that those
nominees do indeed fit the President's judicial philosophy
requirements. Thus, it is fair to assume that a judicial candidate who
appears in his or her confirmation hearing to be a blank slate has
revealed him- or herself to Administration vetters to be nothing of the
kind. The Senate, then, must satisfy itself as to the nominee's views
on critical issues. As one scholar put it:
No judge is a blank slate; every judge has views on important
issues before assuming the bench and those preexisting beliefs
influence decisions. Whether stated or not, the views still
exist. Thus, a judicial candidate's refusal to answer questions
does not communicate open-mindedness, just secrecy.\31\
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\31\ Erwin Chemerinsky, October Tragedy, 65 S. CAL. L. REV. 1497,
1506 (1992).
Nominees who refuse to provide insights into their judicial
philosophy have failed to meet their burden.
These points can be illustrated with a brief look at the
confirmation hearings of Clarence Thomas to the Supreme Court (before
Anita Hill's allegations of sexual harassment surfaced), and
specifically what happened when he was asked about his views on Roe v.
Wade. Then-Judge Thomas had a prior written record of his views on Roe
but attempted to explain them away during his hearing. Asked about his
enthusiastic praise of an anti-abortion polemic by the Heritage
Foundation's Lewis Lehrman (Justice Thomas had called it ``splendid
''), he explained that he had merely skimmed the article and was
praising it for a different reason. Asked about a report of a White
House Working Group on the Family that he had signed, which was highly
critical of the Supreme Court's protection of privacy and which had
pronounced Roe ``fatally flawed,'' Justice Thomas said that he had
signed the report but had never read it.\32\ Other anti-Roe writings he
disowned by explaining that he wasn't a Supreme Court Justice when he
wrote them, so they had no relevance to what he would do on the
Court.\33\
---------------------------------------------------------------------------
\32\ Nomination of Judge Clarence Thomas to be Associate Justice of
the Supreme Court of the United States: Hearings before the Senate
Comm. on the Judiciary, 102nd Cong. 129-30 (1991)
[hereinafter Thomas Hearings].
\33\ Thomas Hearings at 231-2, 264-67.
---------------------------------------------------------------------------
At the same time, Justice Thomas repeatedly insisted that he had no
ideological agenda on the right to choose and had a completely open
mind. ``I have no agenda,'' ``I don't have an ideology to take to the
Court,'' and ``I retain an open mind,'' he said when asked about Roe
and the right to choose.\34\ Asked by Senator Biden whether the right
to privacy a woman's right to terminate a pregnancy, Justice Thomas
said he could not comment without undermining his impartiality.\35\
Others pressed him again and again, and he simply refused to say what
he thought. And many recall the exchange with Senator Leahy in which
Justice Thomas claimed he had never discussed Roe with anyone, even
though the decision came down when he was in law school.\36\
---------------------------------------------------------------------------
\34\ Thomas Hearings at 180, 296
\35\ Thomas Hearings at 127.
\36\ Thomas Hearings at 222-23.
---------------------------------------------------------------------------
In the face of all of these assurances of a completely open mind, a
mere eight months after this testimony Justice Thomas he joined
Justices Rehnquist, Scalia, and White in a Rehnquist opinion that said,
``We believe that Roe was wrongly decided, and that it can and should
be overruled consistent with our traditional approach to stare decided
in constitutional cases.'' Casey at 944 (emphasis added). And he has
not wavered from this view. Just last year Justice Thomas wrote that
Roe was ``grievously wrong.'' \37\
---------------------------------------------------------------------------
\37\ Stenberg v. Carhart, 530 U.S. 914, 980 (2000) (Thomas, J.,
disenting).
---------------------------------------------------------------------------
Reporters have subsequently documented that prior to Justice
Thomas' confirmation hearing, the White House had made a firm decision
that Justice Thomas must disclose nothing harmful at the hearing, and
specifically that he must not indicate hie opposition to Roe v. Wade
because it could jeopardize his confirmation. One of his handlers
conceded, on the record, that this was a calculated strategy.\38\
---------------------------------------------------------------------------
\38\ JANE MAYER & JILL ABRAMSON, STRANGE JUSTICE: THE SELLING OF
CLARENCE THOMAS 210 (1994).
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I hope that Senators will bear this experience in mind as future
nominees, both to the high court and to the lower federal courts, come
before the Senate. The stakes are too high--especially on such a
closely-divided Supreme Court, and Courts of Appeals that already
reflect an imbalance to the right--to allow nominees to walk away from
their past or to shield their views and ideology from Senate and public
scrutiny.
III. Conclusion
As Senators, you hold the tremendous power and responsibility to
``advise and consent'' on federal judicial nominees. How you exercise
that power and responsibility--the degree to which you are demanding
and thorough in examining the records and views of the nominees that
come before you, and the extent to which you are willing to assert you
Constitutional prerogative to say ``no'' when appropriate-- will have a
tremendous impact on the lives of American citizens for many years to
come.
Chairman Schumer. Thank you, Ms. Greenberger.
Our final witness is Mr. Clint Bolick. Mr. Bolick currently
serves as vice president and director of litigation at the
Institute for Justice, which he cofounded in 1991. Mr. Bolick
received his law degree from UC-Davis and his undergraduate
degree from Drew University. In addition to publishing a book
and numerous articles on constitutional law topics, Mr. Bolick
has successfully litigated on behalf of school choice programs
and inner-city businesses.
Mr. Bolick, your entire statement will be put in the
record, and proceed as you wish.
STATEMENT OF CLINT BOLICK, LITIGATION DIRECTOR, INSTITUTE FOR
JUSTICE, WASHINGTON, D.C.
Mr. Bolick. Thank you for the honor of testifying today. I
can't claim to be from any of your States, but we do try to
file lawsuits there as often as possible.
Chairman Schumer. Don't we know it.
[Laughter.]
Mr. Bolick. The dangers of using ideology as a sole
criterion to evaluate judicial nominees can be illustrated in
the cases of two sitting Supreme Court Justices. When one was
nominated, he was opposed by left-wing special interest groups
who vilified him for being anti-women and insufficiently
supportive of civil rights. Another nominee, a former law
professor, was opposed by consumer groups who believed he would
vote consistently to uphold business interests.
Those judicial nominees who were opposed for being too
right-wing were, of course, Justices David Souter and Stephen
Breyer. Now, in hindsight, those Justices have shown themselves
to be so liberal that perhaps in those two cases only we should
have listened to those groups and opposed the nominations.
But the point is that it is a hazardous enterprise to try
to extrapolate judicial philosophy from scattered academic
writings or lower court rulings. It is even more hazardous for
the Senate to take its cue from ideological organizations that
themselves are so far outside the mainstream that they could
ever have considered David Souter and Stephen Breyer to be too
conservative.
That is especially true for the overwhelming bulk of this
committee's work in the area of the judiciary, which is, of
course, not Supreme Court nominations but appointments to
district and appellate courts. This Committee and the Senate
are being called upon by special interest groups to create what
amounts to a judicial blockade, elevating ideological
considerations to an unprecedented veto role in the
confirmation process.
These groups have voiced wholesale opposition not to a
specific nominee, but to an entire group of highly qualified
judicial nominees solely on ideological grounds. If they
succeed, it will plunge this Nation into a judicial crisis of
historic proportions.
I fear that this hearing is an attempt to place an academic
fig leaf on this campaign of judicial obstructionism. That
would jettison 200 years of Senate practice whereby judicial
nominees for lower courts consistently have been greeted with a
presumption of confirmation, even in times of divided
Government.
Some are now saying that the Senate should abandon any
pretense of bipartisanship and play tit for tat, or as the
Chairman used the term before, and I prefer that one,
``gotcha'' politics. The last Senate, like previous Senates,
slowed confirmations in the President's last year, but it seems
that the level of statesmanship descends to a new low each
time.
Now, the slowdown is threatened to occur not in the
President's final year but in his first year. That is exactly
the type of brazen partisanship that the American people
dislike. And I assure that if it persists, they will know about
it and will respond.
Why should lower court nominees not be judged solely on the
basis of ideology? For a simple reason, because renegade judges
can and are reined in by higher courts. A lower court judge
cannot overturn Roe v. Wade or uphold prayer in the schools or
overturn Miranda rights. Occasionally, they have tried, and the
Supreme Court, this supposedly conservative, activist Supreme
Court, has rejected such efforts.
That is why Senators like Joe Biden have declined to invoke
ideological litmus tests for lower court judgeships, focusing
on qualifications and an assurance that nominees are not so
ideologically driven that they cannot faithfully apply the
Constitution and precedents of the U.S. Supreme Court. The
Senate should not heed the demands of special interest groups
to jettison those time-honored standards.
We find ourselves today paradoxically in a time of both
quietude and crisis regarding the judiciary, quietude because
the majority of Americans are satisfied with our courts. Unlike
in times past when the people perceived the courts as straying
too far to the left or right, attempts to make the judiciary an
issue in the last election proved unavailing. A recent New York
Times poll found that a majority of Americans think that Bush
nominees will be about right, though 14 percent, I might add,
think they will be too liberal.
The reason for this quietude is that the courts are doing a
good job. Gone are the days when courts routinely took over
school and prison systems, assumed the tax power, created
welfare rights, and let criminals out on technicalities.
Our current Supreme Court defies easy categorization. This
supposedly conservative, activist Court struck down a law
banning flag desecration. It placed Roe v. Wade on firmer
jurisprudential ground. It invalidated efforts to restrict gay
rights ordinances. It struck down Virginia Military Institute's
ban on women, and just yesterday it once again upheld campaign
finance reform. Conservatives were among the majority in every
single one of those cases.
Just this month, the Court struck down thermal imaging
searches by a slender 5-4 majority. Thankfully, Justices Thomas
and Scalia were on the Court to provide the vital swing votes
to reach that decision. Our report on the ``State of the
Supreme Court 2000'' finds this Court to be one of the
consistently most pro-individual liberty Courts in the past
century. Moreover, the courts are in balance. Roughly half of
our Federal judges were appointed by Democrats, the other half
by Republicans, and mostly Reagan and Bush judges are retiring.
But we are also in crisis. The number of vacancies is over
100, with roughly one-third classified as judicial emergencies.
The operative number in terms of resolving that crisis is zero,
which is the number of hearings and confirmations so far during
this administration----
Chairman Schumer. Are you complaining about Senator Hatch?
Mr. Bolick. Yes, Senator Hatch did try to move things
along.
--despite the administration's alacrity in nominating
judges and the fact that the American Bar Association has found
each nominee that it has evaluated so far either qualified or
well qualified.
The bipartisan task force on which Lloyd Cutler served on
judicial selection issued a report last year, before it knew
which party would occupy the White House, with recommendations
to solve this judicial crisis. It decried the use of blue slips
which, in its words, ``undermine collective decisionmaking in
an open, deliberative process,'' and it urged confirmation
votes by the full Senate within 60 days of nomination.
In 1997, Senate Patrick Leahy declared, and again I quote,
``Those who delay or prevent the filling of judicial vacancies
must understand that they are delaying or preventing the
administration of justice.'' Those are words for the Senate to
live by.
My group has always believed in a rigorous advice and
consent role for the Senate. At the same time, we did not
oppose a single judicial nominee in the Clinton administration,
not because they weren't liberal, which many of them were, but
because for the system to work requires self-restraint and, for
our group to maintain its integrity, requires us to choose our
battles judiciously.
Now, the Senate's credibility is on the line. I implore
this body to place statesmanship over partisanship in the
confirmation of judges. Please do not allow yourselves to be
enlisted in an unprincipled campaign of judicial
obstructionism.
Thank you.
[The prepared statement of Mr. Bolick follows:]
Statement of Clint Bolick, Litigation Director, Institute for Justice
I offer this statement on behalf of the Institute for Justice, a
libertarian public interest law firm that litigates nationally in
support of individual liberties and limited government.
We have always asserted, in Democratic and Republican
administrations alike, that the Senate's advice and consent role should
be both robust and principled. At the same time, the President is
constitutionally entrusted with the authority to nominate judges; and
in past administrations, the Senate has accorded due deference to the
President to nominate judges who reflect his philosophy. To preserve
the independence of the judiciary and to keep the confirmation process
moving, the Senate has focused primarily on the qualifications and
judicial temperament of nominees to district and appellate judgeships,
confining questions about ideology to nominees' ability and willingness
to abide the constitutional oath and adhere to the rule of law.
What we are now seeing is an effort by left-wing advocacy groups
like People for the American Way and the Alliance for Justice to
elevate ideology to an unprecedented level of consideration. They seek
to manipulate the Senate into abandoning its traditional role and
bringing the judicial confirmation process to the halt, solely on the
grounds that the President is nominating highly qualified judges who
share his philosophy. And I fear that this hearing, far from exploring
important philosophical issues, is really a an attempt to place an
academic fig-leaf on a partisan and fiercely ideological campaign of
judicial obstructionism.
Although my organization is keenly interested in the composition of
the judiciary, I want to state at the outset that the Institute for
Justice did not oppose a single judicial nominee during the eight years
of the Clinton Administration. That is emphatically not because the
Clinton Administration nominated only moderate judges-to the contrary,
Clinton's judicial appointees as a whole, and especially his appointees
to the U.S. Supreme Court, have been demonstrably more liberal than the
judges appointed by Presidents Reagan and Bush.
Rather, the reason that we refrained from opposing Clinton judicial
nominees is selfrestraint. We believe that it is essential to the
integrity of our organization to choose our battles carefully. For
nominees to judgeships in district courts and courts of appeals-whose
decisions are subject to review by higher courts-our touchstone is
whether a judicial nominee is so extreme that his or her willingness
and ability to enforce the rule of law is seriously called into
question.
That is not just our touchstone-it reflects the same approach that
the U.S. Senate has traditionally taken toward lower court judgeships
for 200 hundred years. The approach was summed up in 1994 by Sen.
Joseph Biden, who articulated three attributes that he would consider
for nominees to district courts and courts of appeals:
First, that the nominee has the capacity, competence, and
temperament to be on the court of appeals or a trial court.
Second, is the nominee of good character and free of conflict
of interest?
Third, would the nominee faithfully apply the Constitution and
the precedents of the Supreme Court?
If they meet those three tests, assuming they are not on the
ideological fringe and they are not someone who is so out of
the mainstream that you either question their competence, you
question their character, you question their temperament. . .,
then it seems to me they should be given an opportunity to
fulfill the seat for which they have been named.
This approach reflects well the respective constitutional roles
given to the President to make nominations and for the Senate to advise
and consent. At a time of divided government, the system would grind to
a halt if the Senate refused to confirm nominations based on mere
philosophical differences. Historically, and continuing in recent
years, Republican Senates have confirmed the vast majority of
Democratic administration judicial nominees and vice-versa. If we are
contemplating a sea-change where the Senate delays or denies
confirmation to wellqualified, mainstream judicial nominees on
differences of philosophy-or, more egregiously, to the ideological
whims of a single Senator withholding a ``blue slip''--we had better
contemplate the serious consequences. As Senator Patrick Leahy declared
in 1997, ``Those who delay or prevent the filling of [judicial]
vacancies must understand that they are delaying or preventing the
administration of justice.''
Not only will such tactics paralyze the confirmation process-
creating or exacerbating a judicial crisis-but it will create an
entirely new rule for future confirmations. Democrats have accuse epu
scans o holding up judicial confirmations during the Clinton
ministration, notwithstanding that about 375 judges (almost half the
federal judiciary) were confirmed during that time. The point is that
judicial confirmations have taken longer in each succeeding
administration, leading us to the point of judicial crisis. Adding
greater ideological scrutiny to the process will slow it down even
further.
That comes, remarkably, at a time of relative public quietude
regarding the federal judiciary. Americans seem satisfied with their
courts. And for good reason: the era in which activist judges were
taking over school and prison systems, imposing judicially created
taxes, creating welfare rights, and letting criminals out on
technicalities seems largely behind us. Whenever the public perceives
that the judiciary is straying too far from the public consensuswhether
in the heydey of the Warren Court or when the Rehnquist Court seemed
poised to overturn Roe v. Wade-it can and usually does produce a
democratic correction. In the past election, Vice President Gore tried
gamely to make an issue of judges, but to little avail. To the
contrary, the New York Times recently found that a majority of
Americans believe that President Bush will appoint judicial nominees
who are about right. (Some think his nominees will be too liberal!)
And indeed, President Bush's record so far is remarkably good. His
first group may comprise the most highly qualified group of judicial
nominees ever put forward at a single time. They are a bipartisan group
and richly experienced as judges or attorneys. The American Bar
Association-whose ratings have been referred to by several Democratic
senators as the ``gold standard''-have given ``qualified'' or ``well-
qualified'' ratings to every nominee evaluated so far. In terms of
judicial philosophy, several of the nominees have argued numerous cases
in the Supreme Court and compiled stellar winning records,
demonstrating that they are well within the mainstream of American
jurisprudence.
Nor will the nominees significantly alter the balance in the
judiciary. Roughly half the federal judiciary are Republicans and half
are Democrats. Most of the current retirements are from Republican
judges.
But balance is not what the left-wing advocacy groups are after.
They want to post a sign outside the door of the federal courthouse
reading, ``No conservatives need apply.'' They want this Senate to do
their bidding, denying confirmation to anyone who does not share their
activist agenda. That these groups are themselves anywhere near the
``mainstream'' of public opinion is laughable. The Senate should not
take its lead from such groups.
Nor should it seek to do so indirectly by attempting to clothe
judicial obstructionism with an academic veneer. With due and
tremendous respect to Professor Tribe and Professor Sunstein, their
writings have not been aimed at greater objectivity or balance in
judicial confirmations, but at creating a more liberal judiciary in
accord with their own philosophical predilections.
Their real complaint is with the U.S. Supreme Court, which they
characterize as an activist conservative court. They do not disdain
judicial activism in general-surely they applaud many of the activist
cases of the Warren era-but they dislike a Court that will rein in
other branches of government to vindicate principles such as
federalism, equality under law, and private property rights. Of course,
the Court cannot rein in government if government itself is not testing
the boundaries of activism; and it is precisely the role of the
judiciary, articulated most eloquently in The Federalist No. 78, to
ensure that the other branches of government do not overstep their
constitutional boundaries. Moreover, we need to keep all this in
perspective: after all, this is the Court that struck down laws
prohibiting flag desecration; that invalidated Virginia Military
Institute's ban on female students; that struck down Colorado's
initiative prohibiting gay rights ordinances; and that placed the right
to an abortion on firmer constitutional ground. These are not hallmarks
of a ``right-wing'' Court-although conservative justices voted with the
majority in all of those decisions.\1\
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\1\ Our report, ``State of the Supreme Court 2000,'' can be found
on the Institute for Justice website at www.ij.or.g. We find that the
Rehnquist Court has compiled an excellent overall record on protecting
individual liberties.
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The bottom line, though, is that the academics' advice is a recipe
for partisan and ideological gridlock. Sometimes gridlock is good, but
not when it paralyzes the judiciary, whose role in protecting
fundamental individual liberties is central to our constitutional
system. Presently, there are over 100 judicial vacancies. About one-
third of them have been classified as judicial emergencies. As each day
passes, the specter of judicial obstructionism becomes evergreater a
populist issue, with an appropriate threat of popular backlash.
Facing the threat of gridlock, last year a Task Force on Federal
Judicial Selection issued a report entitled ``Justice Held Hostage:
Politics and Selecting Federal Judges.'' The Task Force was remarkably
bipartisan, including such liberal luminaries as Professor Norman
Dorsen and Elliot Mincberg of People for the American Way. Among other
things, the Task Force finds that the Senate ``should make it a high
priority to take final actions on nominees in a more expeditious
manner.'' It specifically decries the blue-slip process, which ``should
not be allowed to undermine collective decision-making in an open,
deliberative process.'' It urges nominations within 180 days of
vacancies and confirmations within 60 days of nominations. By moving
nominations to a prompt vote by the full Senate we can have a robust
and open debate about ideology in judicial nominations and about
individual nominees' philosophies. And, in the end, I am confident that
we will have the vast majority of judges confirmed.
But so far the operative number is zero, which is the number of
hearings scheduled and confirmations made so far. Instead of having
hearings on the role of ideology in judicial nominations, this
Committee should be moving forward and applying the same rules and
principles it has applied for two centuries.
In the coming days, my organization will remind Senators, and the
public, of comments that Senators made about the judicial crisis, and
the proper role of the Senate, during the previous Administration. We
will work to alert the public to the existence of a de-facto judicial
blockade if one is imposed by this Committee. And, of course, we will
make our most reasoned and passionate arguments in support of nominees
who have manifested a commitment to the rule of law and the principles
of a free society.
In the meantime, we will see what emerges in the Senate. Will this
be a time of statesmanship? Or will senators act as marionettes in a
tableau of judicial obstructionism choreographed by left-wing special
interest groups? Our nation desperately needs statesmanship. I hope
that this hearing will lead us in that direction, but I fear it is a
step in the direction of ever more-rancorous partisanship.
Chairman Schumer. Thank you, Mr. Bolick.
What I am going to do--I checked with Jeff--is call on
Senator Durbin, who hasn't had his chance and has to be going
on, and then we will have a whole series of questions after
that.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you, Mr. Chairman, for this important
hearing which I believe will be a precursor for a national
debate which will ensue over the next several years.
Congressmen, Senators and Presidents come and go. Supreme
Court Justices hang around forever. The hand of Richard Nixon,
who has been gone from this city in an official role, is still
on the Supreme Court 25 years later.
I believe that our Attorney General was able to muster 58
votes in the Senate because he sought the refuge of ``settled
law.'' I don't believe that Supreme Court Justices, even
circuit court judges, can expect the same treatment if they
come before the Judiciary Committee. More penetrating questions
will be asked.
I would like to say to Ms. Greenberger, I think you make an
excellent point when it comes to Clarence Thomas' testimony.
That kind of evasion I don't believe is going to be successful
in the future. People have to be more honest in terms of what
they really believe if they expect to be treated in a
professional manner.
Now, I have watched this Committee since I have been in the
Senate over the last several years and even before, and it was
curious to be on the Judiciary Committee during the years of
the Clinton presidency and watch the grilling that many of his
judicial candidates faced. These candidates had to go through a
``Manchurian Candidate'' drill where they had to parrot their
disdain for judicial activism, in all works and all its pomps,
if they had a chance before this committee.
Then it was interesting to watch as people tried to explain
what judicial activism was. I guess it came down to the fact
that judges had to pledge that they would take a law and
interpret it within its four corners. They would be passive and
reactive and not add a thing to it. That seemed to be the
standard the Republican majority applied.
I don't think anybody anticipated what this Supreme Court
has done, as Professor Sunstein said, which took their disdain
for judicial activism and proceeded to strike down more Federal
laws per year than any Supreme Court in the last half century,
as you have testified.
So it leaves us in an interesting situation, and I would
like to ask Professor Presser if he would address this. He said
in his testimony that we must maintain a separation between law
and politics on the Court. Was that separation breached by the
Supreme Court in either the Brown v. Board of Education
decision or Roe v. Wade, where we had important national issues
that were clearly unresolved by either Congress or the State
legislatures?
Mr. Pressman. Do you want me to answer that now?
Senator Durbin. Sure.
Mr. Pressman. I would separate the two. It seems to me that
the Brown decision is quite supportable under the 14th
Amendment, maybe not under the grounds that the Warren Court
used, but broadly under the notion of a color-blind
Constitution. Yes, I think that decision was very much a
separation of law and politics.
Roe v. Wade I am not so sure about. I think that is an
issue that belongs within the States. I think Scalia is right
about that. It is important to understand that you can protect
women's rights through other means than the Federal courts and
the Federal Government. That is what your State governments--
and you were a State government official for quite some time,
if I remember correctly. That is the job of State governments,
as well as others, local governments too.
Some don't belong in the Federal sphere. Roe v. Wade I
think is one of those cases, but Roe v. Wade is the law of the
land, at least as interpreted in Planned Parenthood v. Casey.
And I don't know of any proposed Federal lower court nominees
who would ever be in a position to overrule that, and the
Supreme Court has made pretty clear that it doesn't intend to
either.Senator Durbin. Professor Tribe, would you address this
issue of judicial activism and whether or not liberal courts
and conservative courts cross that line?
Mr. Tribe. Certainly, Senator Durbin. As I started to say
in my principal testimony, I very much think--and I have
submitted a memorandum to the Senate on this subject--that the
current Court has been the most activist, as measured by either
the statistical frequency of its invalidation of duly enacted
laws passed by Congress or, more sensitively, as measured by
its lack of deference to either Congress' fact-finding
abilities in areas where under the approach of McCulloch v.
Maryland there would be no second-guessing of Congress'
determination about, for example, the connection between
violence against women and the economy and commerce, or in
terms of the ability of Congress to take a somewhat more
generous view of certain rights than those that for
institutional reasons the Court is bound to take.
The Religious Freedom Restoration Act is a perfect example.
Almost unanimously, the House and Senate concluded that the
Supreme Court, in Justice Scalia's opinion in Employment
Division v. Smith, had trampled on religious freedom by
stripping it of its historic protection under earlier Supreme
Court decisions, protection from severe burdens imposed by
neutral rules of general applicability.
And Congress dared, in the name of section 5 of the 14th
Amendment, to say we believe that the religious liberty that is
protected by the 14th Amendment against the state is broader
than what the Court thinks it is. And then it proceeded to
reinstate, in effect, the standards the Court had used before.
But the preamble of the law, in effect, dared the Court to
defend its prerogatives by daring to criticize the Court's
decision in Smith, and the Court lashed back in a decision that
has rightly been described as enlisting the support even of
Justices Breyer and Ginsburg. That didn't make it right. I
think it was an outrageous decision, without any real warrant
in the separation of powers.
I could give examples of age discrimination and
discrimination against the disabled. Marcia Greenberger nicely
humanized them by talking about the individuals involved. It is
no answer in those cases to say, with Professor Volokh, that as
a matter of form the Court was acting within the bounds of the
separation of powers because, after all, it was simply
vindicating the structural limits.
Well, you can call it that, but the question is what
content does that concept have. And even when the Congress does
not stray from the organization chart, as the Court has set it
up, but simply decides to go a little further than the Court
thinks is necessary in the Patent Clarification Act, in Florida
Prepaid and College Savings--these are not all just civil
liberties cases--over and over and over again this Court seems
to think that it is its job to--let's coin a phrase--legislate
from the bench perhaps. Now, it seems to me that is not right
and it is not made right.
Senator Durbin. Or perhaps veto from the bench.
Mr. Tribe. Or veto legislation. Of course, liberal courts
do it as well.
In my view, Roe v. Wade was an entirely justifiable
protection of the fundamental human liberty of women. I know it
is controversial, but to say women can get protected by the
States is really like relegating them to the back of the bus.
I think Lincoln was right when he said the Nation can't
exist half slave and half free, and on certain fundamentals
like this there has got to be a coherent approach. The approach
might be to protect the fetus, although that is not really my
view. It might be to protect the woman, and that is really
where the Court has come out. But one way or the other, the
Constitution speaks to these fundamental questions, and you as
a Senate need to know how a prospective judge or justice would
listen to what the Constitution says, how would that person
understand and approach the great silences and ambiguities of
the Constitution.Senator Durbin. I appreciate that, and I would
just say to Professor Bolick, as well as Professor Sunstein, I
think it is naive to believe that any Judiciary Committee is
going to ignore the ideology of any candidate or any nominee
for the Supreme Court.
I think some of the quotes in Ms. Greenberger's
presentation about Senator Borah and others in the past have
made it clear that it would be naive to believe that we have
faith in the laws that we enact and yet don't care how the men
or women serving on the Court view them. I think that is bound
to be a question of inquiry.
Professor Sunstein, you come to the conclusion that we need
intellectual diversity. One branch of Government should respect
the other branch of Government. I think as a model or a goal,
that is certainly praiseworthy. It is hard to imagine President
Bush saying, you know, on balance, I guess the Supreme Court is
a little conservative, I had better put a liberal on there. I
just can't see that. I doubt that that is going to occur.
It is more likely that he is going to draw from his own
political will to find somebody to put on the Supreme Court,
which then is going to challenge us. Some have said this Court
is a few centrists and a lot of people on the right. It is
going to challenge us to ask whether there is this intellectual
diversity that you have asked for.
So does this put a burden on us to seek balance and
diversity where it may not currently exist?
Mr. Sunstein. Yes. I would distinguish between the Supreme
Court and the lower Federal courts. It would be perfectly
appropriate for the White House and the Senate to work together
to ensure that there is a breadth of opinion within the lower
Federal courts, and that would be very desirable for the
country.
With respect to the Supreme Court of the United States,
President Bush is within his rights to nominate a conservative,
and I don't believe that the Senate should insist that he not
do that. There are two different sorts of conservatives, and it
is important to underline this point because this is something
on which Republican and Democratic Senators really might be
able to agree.
Some conservatives believe that the Court should be very
cautious before it strikes down an act of Congress. Chief
Justice Rehnquist, especially in his early days, really
insisted on that, that it is very important for the Supreme
Court to respect Congress' prerogatives. And much of President
Reagan's rhetoric was really like that. That is a form of
thinking that really cuts across liberal and conservative
lines. It is a deferential, respectful Supreme Court.
There is another kind of conservative who believes that
they have access to what the Constitution really means as
originally understood, and that Constitution protects
commercial advertising, forbids affirmative action programs,
maybe protects the right to bear arms, very broadly understood,
and acts like a weapon against Congress.
Now, for those who believe that campaign finance reform and
affirmative action programs are often bad ideas, it is really a
mixed blessing to want the Supreme Court to vindicate that
view, at least all of the time. So the suggestion is really a
simple one. If President Bush wants to nominate a conservative
for the Supreme Court, he is entirely within his rights to do
that, but please let him nominate a conservative who is very
respectful of the prerogatives of the democratic branches. That
is the kind of conservative that we have seen much too little
of in the last 10 years.Senator Durbin. Thank you. I want to
thank the panel and thank the chairman.
Chairman Schumer. Thank you, Senator Durbin, for some
excellent questioning.
First, we have a few housekeeping measures. Senator
Kennedy's statement should be read into the record. He
explicitly apologizes to the Committee for not being here. He
is on the floor with the patients' bill of rights.
A letter from Professor Yalof and a letter and law review
article from Professor Tulis will be put in the record, without
objection.
First, just preliminarily, both Professors Presser and
Volokh did talk about what is mainstream, what is the right
interpretation, but I didn't see any contradiction in your
testimony that these shouldn't be questions that we should be
asking prospective nominees to the Court.
Is that correct?
Mr. Presser. Before I answer that, I take it that all of
our full statements will be entered into the record.
Chairman Schumer. Yes, indeed. I just want to bring that
out here.
Go ahead.
Mr. Presser. It seems to me that, first of all, as a U.S.
Senator you can ask anybody anything you want in any hearing,
and I admire you for that.
Chairman Schumer. It is not as broad as you think.
Mr. Presser. It seems to me that you are well within
accepted practice if you ask a nominee, tell me about what your
philosophy of judging is, tell me what you think about the role
of precedent, tell me what you think a lower court judge ought
to do. If you get answers to that that suggest that somebody is
way out of what we might regard as the mainstream, I think that
is entirely an appropriate thing to do.
I would go further, and maybe not everybody would agree
with this. It seems to me that you are also within your rights
if you ask about particular issues, and then the nominee would
be within traditional practice if, for the response to certain
questions, he or she indicated, well, that is something that
might come up before me as a judge and I don't want to talk
about, or the perspective that I would take on this is very
different if I were a judge than what I have voiced in prior
positions. But with the parameters that I have laid down, I
think all of that is fair game.
Chairman Schumer. Do you agree with that, Professor Volokh?
Mr. Volokh. I think this is actually a very difficult
question. I think there are great arguments to be made on both
sides. I think that Professor Presser has basically -I think
that his view is a sound one, but I do think there are good
arguments to be made both for a more restrained view of making
sure that one never asks a nominee something that might commit
him in the future, and for the opposite view as well, which is
to probe as closely as possible.
Chairman Schumer. Mr. Bolick, you said ideology shouldn't
be the sole determination of what is a judge. I presume you are
saying that it is a relevant issue when a judge comes before
us. I don't want to get into an argument here of what is
mainstream and what isn't. Obviously, that is different.
I want to get into an argument of what best moves the
process forward to avoid the kind of ``gotcha'' politics that
everyone has decried here. If you ask the American people, does
ideology enter into the process, they will say yes. They would
have said yes before Bush v. Gore. They certainly say it now.
In fact, for the first time we have a real division among
Democrats and Republicans in terms of respect for the Court.
But even leaving that aside, they always think so.
When we vote on judges, when there are controversial votes,
it splits along mostly ideological lines. So to say that
ideology isn't part of it--whoever wants to say that can do it,
but the American people are incredulous, and rightly so,
because we all know just by an observation that it happens.
The question is has our judicial process, the way we do
this, gotten so away from--has it become sort of a kabuki game,
as opposed to talking about these issues right up front, and it
damages the process, it damages the judiciary, and doesn't lead
us to the right people? I would like to have had this hearing
when the opposite occurred, if there were a Democratic
President and a Republican Congress. I think the answers should
be the same.
But it is my inclination, as I said at the beginning, that
ideology, broadly defined--I don't mean are you a Democrat or a
Republican, but your views, and I am going to get to that in a
minute as to what people think would be permissible and
salutary questions.
I take it you don't disagree with that either, Mr. Bolick.
You emphasized the adjective ``solely,'' and I would agree with
that.
Mr. Bolick. That is right, Mr. Chairman, and I would make a
further delineation. I think that the context for a Supreme
Court confirmation is one in which a much more robust exchange
on these issues is extremely relevant because that person does
not speak to a higher authority.
Traditionally, for lower court judges, liberal Senators
have voted for conservative judges and conservative Senators
for liberal judges. That, I believe, is the issue that some
groups are attempting to place on the table right now, and I
think that we would suffer a tremendous problem in the
confirmation process were that to be a larger issue than it is
right now.
Chairman Schumer. Fair enough. What is interesting is the
first panel, both the counsels, seemed to say, well, let's just
look at the excellence of the qualifications. But I think, to a
person, this panel is saying, no, look at some of these other
issues.
Now, the difficulty, in my judgment, is how closely do you
look. To say will you uphold the Constitution, are you a
democrat or do you harbor some other ideology--that is so
obvious that that is not going to get you very far, and that is
just a refuge.
On the other hand, we are getting into don't ask about
specifics. I think, and you folks have more erudition than I
do, that that came about because you didn't want potential
judges to talk about specific cases that they might litigate.
So, yes, if it is a very narrow case that is coming before the
Court and this judge might be part, you would certainly not
want to ask them that.
But there is a range in between, and I would like to ask
people on certain issues whether they think it would be out of
bounds to ask the following. Let's take campaign finance. Would
it be impermissible to ask a potential Supreme Court nominee--
and let's put it at Supreme Court for the moment--do you
believe the First Amendment applies to campaign finance limits?
No one would disagree, correct? That would an OK question to
ask?
Mr. Presser. I might disagree with that. It is important to
bear in mind, Senator--and maybe other panelists can correct me
if I am wrong, but the first Supreme Court nominee actually
ever to appear in person for a Senate hearing, I think, was
Felix Frankfurter, who almost didn't make it because he had a
class to teach at Harvard and decided maybe that was more
important.
The phenomenon of questioning people in person is a very
recent one. Now, if you are going to do it, you must ask
questions about what sort of questions to ask, but the process
worked reasonably well when you just looked at a candidate's
record without having him in front of you. So I am not at all
certain that the process as currently done, especially when it
amounts to a very partisan hearing, is the right thing to do to
preserve the separation between law and politics.
But the campaign finance question that you are asking is
very much one that is likely to come before the Supreme Court,
and I am not sure that one wants to go on record, if one is a
nominee, with a particular position on that.
Mr. Tribe. Could I say something, Mr. Chairman?
Chairman Schumer. Professor Tribe, yes.
Mr. Tribe. First of all, I think that we have all
experienced the end of innocence. It may have been that once
upon a time one of my former colleagues, though I was then, I
guess, an embryo or something, thought it more important to
talk to his class than to appear before the American people as
a prospective Supreme Court Justice. Those days are gone and we
can't return to them. I don't think it would be a wise thing to
return to them. People have awakened to how much is at stake,
and the White House is certainly so sophisticated at the
selection process that for the Senate to say, well, we are
going to go back to the golden days and pretend wouldn't really
work.
Secondly, as to your question, does the First Amendment
apply to campaign finance limits, I would have thought that any
person who would be reluctant to answer that would be
disqualified right away. Of course, the First Amendment
applies. The question of how it applies and what it means is
perhaps what you might then want to ask, and how far we go down
that chain.
Just as Professor Sunstein earlier said, anyone who thought
that the Bill of Rights shouldn't apply to the States through
the 14th Amendment would be outside the ball park, if someone
said, well, the First Amendment applies, Senator, to Federal
finance limits, but not State finance limits because I don't
believe the Bill of Rights is incorporated against the States,
you could say thank you very much, Mr. President, who is your
next nominee?
Chairman Schumer. But it is certainly a legitimate
question. Would anyone, aside from Professor Presser, disagree
with that? I want to get a little more specific. I don't want
to dwell on this because I think, Professor Presser, the idea
that we shouldn't have hearings or shouldn't ask witnesses such
broad-gauged questions like that is probably out of the
mainstream.
Mr. Presser. Well, let me say I don't disagree with what
Professor Tribe said. If it is simply, is this an issue with
First Amendment implications, of course anybody would say yes.
I thought you were suggesting specific statutory provisions.
Chairman Schumer. I am going to get to that.
Mr. Volokh. Senator, I think that Professor Tribe's point
is an excellent one and it ties in to what I was saying.
Setting aside the question of whether it is proper or improper
to ask a question like that, the difficulty is if you ask a
question that is too specific--how would you rule on the
statute--then you might get into an area where a lot of people
would feel uneasy. If you ask it too generally, you are going
to get virtually no useful information.
Chairman Schumer. Correct, but let me ask you this one.
Let's take the next one down the line. Is there anything wrong
with asking, do you agree with Buckley v. Valeo and would you
overrule it if a new case came up? Now, how is that one? I
would want to know the answer if a nominee came before me. I
think Buckley v. Valeo was a bade decision, OK?
Senator Sessions. Are you going to vote against them if
they won't tell you that or if they don't agree with your
interpretation of Buckley?
Chairman Schumer. Are you going to vote against them? I
don't think any single issue would drive me to vote for or
against someone, but I would want to know their overall set of
views. And when we had some of our colleagues here saying don't
have a litmus test--and often that relates to choice and we all
have different views on choice--but a litmus test saying you
must be this way on this issue or I won't vote with you, there
may be some people who feel that way. I don't, but that doesn't
mean I don't want to know their view.
Go ahead, Professor Sunstein.
Mr. Sunstein. I think the problem with that is that someone
might reasonably think I am just not sure whether I agree with
Buckley v. Valeo.
Chairman Schumer. That is fine.
Mr. Sunstein. And they don't want to pre-commit themselves.
So I think they would be entirely within their rights to say I
am not sure, or I have a clue, but I don't want to pre-commit
myself. And then you would be within your rights to say, well,
that is a great answer, that is a bad answer, and that is
relevant.
The trick with these specific questions is they might get
the nominee in inappropriate territory, and there is a limit to
how much you can get if you have someone who is both public-
spirited and clever. You won't get anything out. So the trick
is to come up with something that is neither too specific nor
general.
Let me just float an idea that is in the terrain. I am not
sure if it is a good idea, but it is in the terrain of
something that would work. You might ask someone, are you
someone who has as your most admired people on the Court or the
people whom you tend to think are right--is it Thomas and
Scalia, is it Brennan, Marshall and Blackmun, is it Kennedy and
O'Connor, or is it Breyer and Ginsburg? That is to identify
four kinds of camps and that would be an informative answer. If
they say ``I am a Brennan-Marshall-Blackmun type,'' then the
President is going to be very unhappy with some of his
advisors.
[Laughter.]
Mr. Sunstein. If the person says ``I am a Kennedy-O'Connor
type,'' they are under oath and they are telling you something
quite important, as distinguished from a Thomas-Scalia type. It
is not clear that is the right question specifically, but that
is the direction, I think, rather than a specific question.
Chairman Schumer. But would you say, then, asking about how
people felt about previous cases, established law no longer
being litigated at least at the moment, is a bad idea?
Mr. Sunstein. Well, the Souter hearings were actually very
informative on that because Souter kind of marked himself as a
Justice Harlan type. Justice Harlan was the most conservative
member of the Warren Court, who also believed in a kind of
evolving notion of what the Due Process Clause was. And every
Republican and every Democrat got a clue about what Justice
Souter was like through those questions, which were about old
precedents that weren't really anymore in play. There, you can
get something.
Ms. Greenberger. Let me just say something also, Senator
Schumer. I think one of the dilemmas that your question goes to
is the fact that there was something behind why the nominee was
presented to the Senate for confirmation.
The President and the administration had a reason for
selecting this person, and if this is a person without a
fulsome record, it becomes extremely difficult to really get a
sense of that person's views on the full range of issues that
are going to be of enormous importance.
Nobody is looking, as you pointed out, for a narrow litmus
test, but judicial philosophy, approach to the courts are the
most fundamental questions. And we have also all shown that by
asking generalized questions, you don't get to the rub of where
the real differences lie.
Chairman Schumer. I would go beyond that. I would say
certain times, from what has been written, the nominee that is
looked for is one who doesn't have a record.
Ms. Greenberger. Exactly.
Chairman Schumer. And somebody who has been on the bench
for a long period of time and has ruled on so many things--they
say, well, they will find something and they will go against
them. And so you are getting a trend to get people who have
less of a record, which I think is awful--not awful, but could
have bad problems.
Ms. Greenberger. It is very problematic, and when there is
so much that is hanging in the balance certainly with respect
to the Supreme Court, as everyone has pointed to, with 5-4
decisions going in many different critically important ways,
but with lower courts as well, I think that expecting that
someone will be able to come before this Senate Committee
saying that they can't be required to answer probing questions
is correct on the one hand, but then they also can't expect
that the Senators are going to vote to confirm them.
I know, Senator Sessions, you have asked probing questions
sometimes. There was a district court nominee that you asked
whether that person believed in a constitutional right to sleep
in the parks, and did they believe there was a constitutional
right to welfare, and what was their opinion of the California
civil rights initiative. Those were probing questions.
Senator Sessions. I don't think I asked that.
Ms. Greenberger. Sorry?
Senator Sessions. I don't believe I asked some of those
questions, the last one particularly.
Chairman Schumer. It wouldn't be wrong if you did.
Ms. Greenberger. ``In your opinion, is the California civil
rights initiative constitutional,'' was the quote that I had,
in the context of trying to explore----
Senator Sessions. Well, that is a little different.
Ms. Greenberger. Sorry, then I mischaracterized it. Let me
read it, then, again. ``In your opinion, is the California
civil rights initiative constitutional?'' Well, that was in an
attempt to explore your concerns about judicial activism, as
you defined it. Those are philosophical judicial philosophy
questions that I would expect, from some of the answers of
Professor Presser or Bolick, they would say those were too
specific. And, of course, those were even posed to a district
court nominee, far more constrained even than court of appeals.
Chairman Schumer. Do you think there is anything wrong with
asking those questions? I don't.
Ms. Greenberger. I think that to the extent that there is
this view on the part of Senators that they want to have some
comfort about the judicial philosophy, as you did, Senator
Sessions, in that context, it is up to the nominee to determine
how much of an answer they can give. It is then in your
province to decide whether you are comforted enough about their
judicial philosophy, not only based on their answers but based
on what else you know about them.
If they have no background, if they have no way your
assessing what will happen when they get that lifetime
appointment, when you have got so many stakes at issue, then I
would say at this particular time, given where the courts are,
given the stakes at issue, given the very extreme views of some
of the nominees, given the model of Thomas and Scalia that has
been presented as the driving force for selection by this
administration, then I would submit it is actually the
responsibility of each Senator to assure himself or herself
about judicial philosophy. And if the nominee is reluctant to
answer the questions, then the nominee has not assuaged those
concerns in a way that deserves a lifetime appointment.
Chairman Schumer. Professor Tribe?
Mr. Tribe. Yes, Senator Schumer. One thing that I was a
little disturbed by is how abstract some of this is getting.
When we talk about the nominee for the Supreme Court, I think
we should keep in mind that in recent decades a fairly clear
model has emerged for the path to the Supreme Court.
Back in 1954, in Brown v. Board, not one of the Justices
who sat had previous judicial experience. That doesn't happen
anymore, almost never. Of the current Justices, there is only
one who, when first named to the Court, hadn't already
developed a track record as a judge, and that is the Chief
Justice. Everybody else, except for Sandra Day O'Connor, who
had been on a State court, came through the farm teams of the
circuit courts.
Despite the ability of the U.S. Supreme Court to reverse a
decision of a circuit court, that is why I think instinctively
this Committee recognizes that it better look carefully not
necessarily at the particular philosophy of every single
nominee to a circuit court, but the overall balance, because
that corpus is in all likelihood where the next level is going
to come from.
And when it does, there is an optical illusion that I would
alert you to--I think you are probably aware of it--and that is
when somebody comes here with a track record in a circuit
court, already having been confirmed once, one of the arguments
made by the allies of the nominee is what are you so worried
about? You have already confirmed the person. The person has
already been through the baptism of fire. And, look, they have
only been reversed twice out of umpteen times.
Keep in mind, the U.S. Supreme Court reviews less than 1
percent of the decisions of the circuit courts. It has made
clear that a circuit court decision, even one it thinks is
clearly erroneous, will not be reviewed unless there is a
special reason, like a conflict.
So somebody who goes through that laundering process, in
effect, can emerge smelling like a rose, almost never reversed,
virtually never reviewed. And the person followed the law,
here, here and there, and then sort of the robes come off, as
it were. It seems to me that is an additional reason that you
have to look at every available piece of evidence. How does the
person answer various questions? What did the person write
before becoming a judge? Those are all relevant.
It is odd to me that it should be problematic to ask a
follow-up question about Buckley v. Valeo. Well, if it troubles
you, what part of it troubles you? How would you approach the
application of the Free Speech Clause to money? That that
should be troubling to ask, when it would be perfectly OK for
the person to have written an article about it or a treatise
about it--I think the more you know from someone's writings, of
course, the more trouble they may in because it is hard to
write a lot without offending various people. But the more you
have available, the more legitimately informed your judgment
is, not because you have a litmus test--oh, he didn't answer
right about part 2(b) on Buckley v. Valeo--but you need to
know.
Chairman Schumer. Go ahead, Professor Volokh.
Mr. Volokh. Just a few basic principles that might be
helpful here. One is that there is a certain area, it seems to
me, of the tail wagging the dog here. There were 370-odd
appointments by President Clinton to circuit courts and
district courts, and two Supreme Court appointments. To say we
should spend not just as much effort but as much time on the
lower court judges because they might be appointed, I think
would be a mistake. Likewise, it seems to me that you might
very well say that we don't want to trench quite as much on the
judges with specific questions if somewhat less is at stake,
and there is much, much less at stake with lower court judges.
The second point is I think it is very easy to say, well,
we will ask them a lot of questions, but none will become a
litmus test. You are the politicians and I am just an observer
of the process, but it seems to me it is often a lot harder to
resist something becoming a litmus test than it might seem. You
ask enough questions and enough groups will get galvanized
about this and eventually a litmus test will very quickly
develop.
Now, one possible answer is that is great, that is
democracy in action and we want the interest groups to
galvanize about it, not just Supreme Court Justices, but every
circuit judges, maybe on every district judge; you know, more
robust debate about legal ideas. That is one possibility.
Another possibility is you might find that not only does it
become harder to appoint really illustrious people with long
track records to the Supreme Court, it becomes also harder to
appoint them to other judgeships. As a result, the quality of
the judiciary ends up suffering, as well as the quality of the
process, and the amount of time that you have to devote to it
will dramatically increase.
Chairman Schumer. Ms. Greenberger and then Professor
Sunstein.
Ms. Greenberger. Just a couple of quick points. I have to
say, as intellectually stimulating and challenging as some of
these discussions are, I don't think that what is at stake here
is the ability to engage in robust debate or an intellectual
exercise.
I think to the extent that there are individuals and
organizations who speak out with respect to these nominations,
it is because of their fundamental concerns about what is at
stake. My organization actually has never opposed a lower court
nominee. So in that sense, we have something in common with Mr.
Bolick. But that is not to say that in the future when we are
dealing with the burning issues----
Chairman Schumer. Both litigate before all these judges, so
I can understand.
Ms. Greenberger.--that when we have these burning issues
that we wouldn't speak out, and that people are not looking to
speak out simply because of an interest in an ideologically
challenging debate, but rather because their most fundamental
concerns are at stake.
And I want to say just one other quick thing about lower
courts as opposed to the Supreme Court and the kind of scrutiny
involved. It is a matter of simple common sense that, of
course, the most scrutiny, the most concern, the most at stake
is with respect to Supreme Court nominees. That is obvious.
However many they will be, they will not rival in number by any
means the number of lower court judges that will come through,
and their authority over the lives of all of us is far greater.
But that is also not to say that lower court judges don't have
enormous power and influence in people's lives, as well, and
because they are not at the Supreme Court scrutiny is no longer
warranted for them.
There have been a number of different comments made that I
haven't been able to respond to, but with respect to a lower
court nominee--and there was a discussion about Roe v. Wade and
how could a lower court overturn Roe v. Wade; that is the
province of the Supreme Court. Well, of course, that is true in
one respect.
It took 8 years between the time that the Supreme Court
established an undue burden standard for determining whether
women's constitutional right to choose was being infringed
improperly -that standard of undue burden is a very loose and
very subjective standard that depends obviously on the eye of
the beholder or the particular judge at issue. It took 8 years
before the Supreme Court took another case just last year to
determine whether particular State laws constituted that undue
burden, and five Justices said that it did.
Professor Tribe responded to Professor Presser when he
said, well, women's rights can be protected in other ways
outside of the Federal courts; they could go to the State
courts, they could go to the State government. Well, this is
the 30-year anniversary of Read v. Reed, Ruth Bader Ginsburg's
first great triumph which established that the Equal Protection
Clause gives women a role and an ability to protect their
rights under our Constitution in the Federal courts, and we are
not left just to the State courts or the State government for
that fundamental equal protection challenge.
Mr. Bolick mentioned the Virginia Military Institute case
to say that the Supreme Court today is still upholding that
right. Well, Justice Scalia dissented from the Virginia
Military Institute case, where the State of Virginia would have
said no women need apply to this Institute; they don't have the
kind of emotional oomph to be able to make it in those kinds of
military settings. Fortunately, history has proven him wrong.
Chairman Schumer. Ms. Greenberger----
Ms. Greenberger. I just want to say, and I know I have
taken a lot of time here----
Chairman Schumer. No. I just want to ask you a question.
Ms. Greenberger. But I do want to say that in the rule of
reason about looking at and scrutinizing lower court judges and
the role that they play, the fact that they will not be
supervised by the Supreme Court as a practical matter, the fact
that, in fact, we will have fewer and fewer splits in the
circuits for the Supreme Court to review if we get that kind of
uniformity, all augers for a very important and careful role by
this Senate.
Chairman Schumer. Did you want to say something, Professor
Sunstein?
Mr. Sunstein. Well, we have been focusing a lot on the
confirmation hearings, and you might say that more important is
the kind of process and mutual understanding between the Senate
and the President before the hearings get going. The hearings
do have a kind of ``gotcha'' feel, and aside from the Bork
hearing and maybe the Thomas hearing, it is hard to think of a
hearing that really made much of a difference.
What happened with Breyer and Ginsburg was that President
Clinton was assured that those who didn't want a left-wing
judge on the Supreme Court would be fine with Breyer and
Ginsburg, so they were centrists. What happened with Justice
Kennedy was that President Reagan was pretty well assured that
Justice Kennedy would be acceptable to the Senate.
With lower courts, with respect to what President Clinton
did exactly, he didn't go appointing liberals, partly because
some Senators, as you know, said off the record, no liberals,
Mr. President. And he took that quite seriously, so we have a
real mix of Clinton appointees.
Now, the simple suggestion is the hearings are important,
but in terms of producing deference to Congressional
prerogatives and appropriate intellectual diversity, much, much
more important is the mutual understanding within the Senate
and between the Senate and the White House before nominations
are made.
Chairman Schumer. That is a good point. I would just put
two caveats in there. One, we may be in the position where
there is no consultation. There has been none up to now. There
have been, what, 20 or so nominees? There has been virtually
none. That was what the argument even before the Democrats got
into the majority about the blue slips was all about, not to
give every Senator a veto, but to bring the President and the
White House to come and talk to us.
Second, I have a feeling there is going to be less than in
the situations you have mentioned because the Senate is so
narrowly constituted. Even if Senator so-and-so or a group of
Senators said no conservatives, Mr. Presidents, put moderate
conservatives, no hard-right conservatives, the President still
might take the chance and say, well, all I need to do is win
two or three over from the other side to get it done. When it
is a 55-45 or a 60-40 Senate, I think it lends itself more to
that situation, whereas now we are on a precipice here now.
I have more questions, if the panel doesn't mind, but Jeff
has been waiting patiently. I am going to leave for 2 minutes,
give the questions to him, and then return to some when he is
finished, if that is OK with everybody.
Senator Sessions. Well, it is difficult when you ask a
person about cases if they have been involved in matters where
they have written on it, or maybe written opinions on it. I
think you are in a little bit better shape to probe as much as
that person is willing to discuss. I think respect for that
person would indicate that if they are troubled by the
question, they don't have to answer it.
With regard to those questions, what troubles me is that if
I am asked about campaign finance reform and the First
Amendment, I might tell you I think A, B, C, D. But I get on
the Supreme Court and somebody has submitted two powerful
briefs and I sit down with two of the best law clerk brains, or
three or four or however many they have, in America and we
start tracing the history of Valeo and other cases and we go
through this and you come out with an entirely different
approach.
I have done that many times in my legal career. You ask me
a question and I say that can't be so, and some lawyer comes in
and sits down and says, boss, I am telling you, you know, look
at this case, you forgot about this or that statute. So I think
we have got to respect nominees in that regard.
I think it is unhealthy, Ms. Greenberger, to suggest that
when the Supreme Court ruled one small part of the Violence
Against Women Act unconstitutional on a sovereign immunity
question, an important sovereign immunity question, that they
were somehow against women. I think you may take that too
personally.
Ms. Greenberger. It is hard to----
Senator Sessions. Let me finish. You have talked beyond
your limit several times.
Ms. Greenberger. Sorry.
Senator Sessions. Let me just say I respect that view, but
I think as a former Attorney General of the State of Alabama, I
am aware of the great heritage of the sovereign immunity
principle. The U.S. Congress, to my knowledge, cannot blithely
overrule that by passing a statute.
It strikes me odd that our more liberal speakers are
somehow now complaining that the Supreme Court would dare to
overrule a Congressional act, when historically you have been
much more supportive of that than the conservatives. But I
guess on that question, I don't think it is activism if the
Supreme Court, in fidelity to the Constitution, finds that a
Congressional act violates that Constitution, which is the
supreme law of the land.
Staff just quickly found the way Senator Hatch defined it.
He defined it in more detail, but this is a good summary of it.
He said the test was, with regard to qualification, activism.
He said judicial activists do not abide by the law. ``They are
someone who makes law as a super-legislature and usurps power
from the other two coequal branches.'' Well, that clearly is a
disqualifying thing, if a judge would do that.
Mr. Presser, I agree with you that if a President says he
is going to submit nominees who are going to follow the law,
that is not a big threat to us. I guess the threat is when we
appoint nominees who think they have the right to create law.
I would agree with you, Mr. Sunstein, and I have said this
repeatedly. There were these people who believed that the
Reagan-Bush 12 years were going to destroy the judiciary. It
didn't. Conservatives told me all the time that these Clinton
judges are going to destroy the judiciary, and they haven't.
For the most part, we have had a pretty good bunch of judges
over the last number of years.
We did have a confrontation over classical activism, in my
view. I think the high-water mark of it was when Marshall and
Brennan would dissent on death penalty cases, every death
penalty case before the Supreme Court. They declared that the
Constitution, under cruel and unusual punishment, declared the
death penalty unconstitutional, whereas there are at least
five, maybe more, references in the Constitution within the
corners of the document itself to capital crimes, to being able
to deprive people of life without due process. You could not do
it, but you could, of course, with due process.
That, to me, was classic activism when you had two members
of the Supreme Court prepared to rule on their personal, deeply
held, which I can respect, view against the death penalty to
the extent that they would really do it in the face of the
plain language of the Constitution. So I think the courts are
getting better. I think things are settling down. Whoever said
that comment, I believe, is correct.
I think it is OK for a Senator to ask any question they
desire, but I also think we ought to give consideration to the
nominee with regard to their reluctance to opine on matters
that they are not prepared to opine on or matters that they may
be required to rule on shortly.
I am concerned about the word, and not really sure why we
use the word ``ideology.''
Chairman Schumer. We are not; we are using ``ideology.''
[Laughter.]
Senator Sessions. Ideology. Mr. Cutler and I are in accord
on that; I am glad that we have a Democrat and Republican that
do.
That makes me nervous, and I would ask you, Mr. Tribe, on
this, I know you care deeply about that Presidential election
contest, and you argued it brilliantly. I appreciated very much
your kind comments about Ted Olson, your adversary in that, who
won and got to be Solicitor General. Things happen.
[Laughter.]
Senator Sessions. He certainly wouldn't have if he hadn't
won, I am sure.
[Laughter.]
Mr. Tribe. I think he was on the short list.
Senator Sessions. In your remarks, though, you raised some
concerns in my mind when you suggested that there really is a
dangerous illusion that we can ascertain the law, the Olympian
ideal that law can be above partisan politics. And you
suggested pretty clearly that that is a dangerous illusion. I
do think the good and decent American people believe judges
rule on the law; they don't rule on politics.
Mr. Tribe. Senator Sessions, I am sorry. I said nothing of
the sort. I said I have spent 32 years battling those of my
colleagues who think that law is nothing but politics. I said I
profoundly believe that law is different, but I also believe
law is not something that you can discover like a little robot.
You have to think about it. Does the law, properly understood,
invalidate a provision of the Violence Against Women Act,
which, by the way, didn't involve sovereign immunity. It was a
suit against a private individual. How do we understand the
law?
I think you made a wonderful point when you said that when
a nominee might answer a question saying, well, the way it
looks to me now, here is what I think about Buckley v. Valeo,
that shouldn't lead us to predict that for sure that is the way
that person will forever think about it. If the person has got
a brain, the person is likely to reflect on it.
Just as Robert Jackson once said on the Supreme Court when
he took a position different from one he had taken as Attorney
General, he said the matter does not appear to me now as it
appears to have appeared to me then. That is a common
phenomenon. It is not a confirmation conversion.
Some nominees will do what you suggest, namely they will
say I would rather not talk about that because I might change
my mind. That will tell you something about the nominee.
Senator Sessions. Or their mind may not be formed.
Mr. Tribe. Right, but then you might ask them, OK, think
about it out loud with me. How would you go about it? If they
say I would rather not, then depending on where you are to
begin with, that might lead you to think you don't know enough
about them to confirm them, or you might admire them for their
chutzpa.
But if the person does go along with you and answers these
questions, hopefully you will realize that down the line, with
law clerks and briefs and arguments and a different world, the
thing might look a little different. It doesn't mean you
shouldn't inquire about these things.
Senator Sessions. Well, I did sense in your written remarks
a suggestion that--you quote here, ``If we could only wave a
magic wand and remove all ideological considerations from
judicial selection on the part of the President making
nominations and on the part of the Senate in the confirmation
process, somehow the Olympian ideal of a Federal judiciary,
once again above politics and beyond partisan reproach, could
be restored. For several reasons, that is a dangerous
illusion.''
Mr. Tribe. Exactly.
Senator Sessions. I think all of us on this side of the
table, that side of the table, and every judge and lawyer needs
to work on a daily basis to maintain public respect for law. Do
you think that is a bit of cynicism in your comments?
Mr. Tribe. No. I mean, in context, I don't have any problem
with what I wrote. What I am saying is if the world were
different, if we knew the President didn't care at all about
the substantive approach of a person--what is his view of
federalism, what is his view of privacy--a kind of lottery;
let's take the most brilliant, most witty, most humane lawyer
and then gamble. Then we would have not just moderates and
mainstream people; we would have pretty far right and far left
people. That is a kind of wonderful world. It might be a better
world.
I am saying that is not our world, and the American people
know it. They know that the President typically has a pretty
good idea of the kind of judge that he or she would like.
Senator Sessions. But a judge that is restrained and
principled and adheres to, as best he can consistently, or she,
to the law as written--I think the people understand that. I
think they understand that that is the kind of judge he might
appoint. I think when Al Gore referred to the living
Constitution, I think they knew what kind of judges Al Gore
would appoint.
Mr. Tribe. They think they know----
Senator Sessions. They are going to show less fidelity and
they are going to feel more able to read into that document
what they would like it to say.
Mr. Tribe. Do you read States' rights into it, or do you
read personal rights into it? Justice Scalia and many other
Justices--and I have praised them for this--take a structural
approach to the Constitution. They don't say that everything in
there is written down in so many words. They draw inferences,
and the question of what kind of inferences judges draw--are
they more willing to draw inferences about a very powerful
state or about personal autonomy--that tells you a great deal.
But the generality about ``do you follow the law,'' I am
afraid, with all respect, Senator, is just a platitude.
Senator Sessions. Well, there is a degree to which certain
people are less likely to expand the law than others, and I
think that is what we deal with. A judge who goes too far in
that act is, in fact, making law. When two members of the
Supreme Court rule that the death penalty is unconstitutional
and in violation of cruel and unusual punishment, they are
acting as a constitutional convention, not as a Court.
Mr. Tribe. I happen to disagree with those two Justices on
that point, but not for the reasons you gave.
Senator Sessions. Well, we had two members of the Court
saying that and we don't want any more.
Mr. Tribe. But what you said, Senator Sessions--please,
with respect, what you said was because the Constitution refers
to capital punishment, those guys couldn't be right. But it
also refers to lopping people's limbs off. It says no one shall
be twice put in jeopardy of life or limb. Does that mean that
we couldn't conclude it is unconstitutional to lop off people's
hands? It is an open question. I just happen to disagree with
them.
Senator Sessions. I don't think it was very open.
I would just say this, Mr. Chairman. This has been a
fascinating hearing. We have had an outstanding series of
panelists. We have raised some important issues. I believe it
is very important that we adhere to a procedure here that does
not subject a nominee to attack because they ruled one way or
the other in a case. I believe we need to be very careful about
asking their opinions on existing matters that may come before
them as a judge. I think that is at high risk.
I believe we ought to avoid ideology, whatever that means
precisely. As Mr. Cutler said in his remarks, this would be
contrary to the view of the established ABA in their 1996
article which he quoted in his remarks that he provided for us
today. So I think we just have got to be careful.
Those of us who would like to see the President's nominees
move forward--are we a bit defensive? Perhaps. We don't want to
see the rules changed after being accused of being too hard on
Clinton nominees, when 377 were confirmed and 1 not confirmed
and only 41 left pending when he left office. That is not a
record of objection to those nominees.
So we don't want to see this changed where we are in a
circumstance where judges are criticized and call in to account
and put in the middle of political turmoil and then find that
they didn't answer the questions precisely right. That is what
troubles me.
I look forward to working with you. You are a good lawyer
and a good scholar, and I enjoy working with you and I hope
that we can see these nominations move forward. You said that
Senator Hatch didn't set hearings. He did have a hearing set on
May 23. Senator Leahy asked him to delay that. We have now gone
along further.
We have at least 107 vacancies in the Federal courts today.
Last year, Senator Leahy was complaining about there were 67
vacancies. This is a first-rate group of nominees that has been
sent forward. It is time for us to commence hearings on them.
We are reaching, and will soon reach a real crisis in the
judiciary. It has been said that about 60 vacancies is about
normal, and we are getting close to double that and I believe
we need to move forward on it. I hope Senator Leahy will do
that.
Chairman Schumer. As you know, we can't move forward until
we reorganize the Senate. That is what I was saying to Mr.
Bolick. From the day the President was inaugurated to this very
moment, our side--and I don't want this to be a partisan issue
because that is not the purpose of this hearing, but our side
hasn't had any ability to move hearings.
We have asked that we not be notified of a nominee and have
a hearing the next day. I think that is perfectly appropriate.
But right now, we can't do a thing. Senator Leahy has said it
is his intention to move forward once the Senate is
reconstituted. We are already having the ABA, which we believe
should still be part of the process, look at the process, and
we will move forward.
Senator Sessions. But other committees are having hearings
on nominees and moving them forward. We absolutely could move
forward. He has decided not to move forward. That is the fact.
Chairman Schumer. But we are not reconstituted as a Senate
and as a Committee as of yet, and I don't think it is
unreasonable for him to say let's do that.
In any case, can I go back to some of the issues here?
Senator Sessions and I have always gotten along well. We work
well on quite a few issues together. We disagree on quite a
few, as well, but we have always tried to be fair to one
another, and I promise you that that will continue.
Let me just ask a generic question because maybe I--again,
I agree with you, Professor Sunstein, and I agree with Ms.
Greenberger. The questions we ask are not going to make
people's sole judgment. It depends on how big the record is. It
depends on how much consultation there is ahead of time. There
are certain questions that I would want to ask somebody who
comes to my office, which the nominees do, that I might not ask
them publicly. It is a whole process.
But what I have found so disconcerting in the last decade
are two things. One, we avoid the subject like it is naughty,
and I don't think we should and that is one of the reasons this
was the first hearing that we have held on this issue. In fact,
I think it is an obligation to ask these questions, whether we
have the views of Professors Presser and Volokh, and Bolick, or
of Professors Tribe and Sunstein, and Greenberger.
It is our obligation to do it and it is an important part
of the record, and I intend to do it. It will not be totally
dispositive with me.
Senator Sessions. I wish you had been advocating that with
Clinton nominations.
Chairman Schumer. Well, I did. I did ask a lot of questions
of Clinton nominees. I was only here the last 2 years. I might
add that in those 2 years, the percentage of nominees that went
forward was much lower than in the previous--the percentages I
have are, of all judges, the 106th Congress was the lowest on
record since the 97th, which is how far back I go, 62 percent,
and circuit 44 percent. That was a lot lower, but that is for a
different day.
Let me ask you this, generally. You forced me to bring it
up, Jeff.
Senator Sessions. You force me to reply.
Chairman Schumer. Yes, OK, you can.
But the question I wanted to ask you is this: is there
anything wrong with asking potential nominees their views of
already established cases and what they think of them and where
they might agree and disagree? Does anyone think that is
inappropriate?
We will have another hearing on this, but in my judgment,
there is an affirmative burden on a lifetime appointee,
particularly a Supreme Court lifetime appointee, to answer
those questions, provided it doesn't interfere with a specific
case that is coming before them. But I will even tell you
there, I give the benefit of the doubt.
If there is a possibility, say, on the issue of gun control
that somebody would eventually say that the Second Amendment
means that you have--I will take a different one--that the
Commerce Clause, because that is a more likely one----
Senator Sessions. Professor Tribe agree on this one, I
think.
Chairman Schumer. Right, that the Commerce Clause allows
national gun registration. Now, that is a potential case that
might come up. But I would still feel, given my views, that it
is an important thing I want to know about in terms of asking a
potential judge their view.
Is there anything wrong with asking that?
Mr. Bolick. Senator Schumer, I would note that in terms of
asking about existing cases, a potential judge's----
Chairman Schumer. That is not an existing case right now.
Mr. Bolick. Or past precedents. A judicial nominee's proper
response, in my view, is in all instances that the doctrine of
stare decisis compels that judge to accord appropriate respect
to that.
Chairman Schumer. Well, let's say it is a Supreme Court
nominee.
Mr. Bolick. The problem is that when the nominee begins to
invest that decision with nuances, that judge is getting in
almost all instances to issues that may not have been decided
within that decision. Other than saying, yes, I agree with it
or, no, I disagree with it, once that judge starts getting into
nuances, that judicial candidate is getting into dangerous
territory.
Now, you noted that Ms. Greenberger and I play a different
role in this process than some other groups, and one of the
things that we do is when we have an important case before a
judge is to look at that judge's record very, very carefully.
And to the extent that a judge--even take campaign finance, for
example, Buckley v. Valeo. A lot of those issues are still on
the table, still unresolved, coming back to the courts once
again.
I as a litigator would look at a judge who has taken a
position on any of those matters and do a recusal motion if the
judge had taken a position during a confirmation hearing that
seemed to pre-judge any aspect of a case that I was going to be
bringing before that judge.
Chairman Schumer. But existing judges have taken--I mean,
my questions would be no different than the questions that
judges on the bench already are forced to answer all the time.
Yes, it would be a recusal motion if somehow I came up with a
hypothetical that was exactly or almost exactly the same as the
case that you would litigate, but the odds of that happening
are next to none.
Mr. Bolick. I would way a judge in a very difficult
position and should be very, very constrained because the kinds
of broad principles that that person is articulating could, in
fact, be exactly the case that is coming up and the judicial
system requires an appearance of impartiality. So I think the
further you go on that continuum, even beginning with cases
like Buckley--I think Buckley is a great example because
Buckley is constantly being litigated--it is dangerous
territory.
Chairman Schumer. Professor Tribe?
Mr. Tribe. I respect Clint Bolick, and he and I happen to
agree on a few things, but this particular thing that he is
saying, which I have heard other people say, completely baffles
me.
Chairman Schumer. Me too.
Mr. Tribe. Justice Scalia, for example, whom I respect a
lot even when I disagree with him, was a professor at Chicago.
He wrote lots of articles. Those articles took positions on
various issues that he then had to rule on as a judge on the
D.C. Circuit and now come before him in one way or another as a
Justice. And sometimes, just as Senator Sessions pointed out,
from a different vantage point he might change his mind
somewhat.
It seems to me that you are better off, not worse off, when
you know from someone's writings or testimony where that person
is coming from. Do you think these people who haven't written
about something have blank minds, that they have no ideas? No.
You just don't happen to know their ideas.
Now, if, when they wrote something down or answered
questions, they were, in effect, committing themselves as to
how they would eventually vote when the case comes before them,
that would be disqualifying them. Anybody who would make that
kind of commitment shouldn't be a judge.
But let's draw a distinction between the disqualification
that comes from having, in effect, committed yourself in
advance to a position, which I think is understandable, and the
alleged disqualification that comes from having been
transparent about something, which I think is completely
incomprehensible.
Chairman Schumer. It makes sense.
I am just trying to flesh you out on this, Mr. Bolick, but
in 1994, admittedly with a different President, you wrote in an
article--it was about ``Bork-ing'' and the article is in the
ABA Journal of 1994. You wrote, ``Meanwhile, Senators should
demand answers from both judicial and executive branch
nominees. Though it is inappropriate for potential judges to
say how they would rule on specific cases, their
jurisprudential views on past decisions are relevant and proper
areas of inquiry.'' I couldn't have said it better myself.
Mr. Bolick. Well, Senator, I think that what I am saying is
you can ask the question about Buckley v. Valeo. Brown v. Board
of Education is probably a much easier example.
Chairman Schumer. That is why I didn't want to give that.
Mr. Bolick. Right, but when issues are live, on the table,
it is dangerous to ask and dangerous to give those answers. I
could imagine you, not in the context of a specific past
precedent, but, for example, asking, do you think school choice
is unconstitutional or constitutional. If someone were to
answer that question, I would act very aggressively to make
sure that that person was not involved--not just in an academic
musing, but before this committee, I would act very
aggressively to make sure that that person was not sitting on a
court that I had a school choice case in front of. And if that
person were, the opinion, I believe, would not be respected by
the public because that person had pre-judged it.
Chairman Schumer. Then we are getting back to what Mr.
Presser first said and then backed off that maybe we shouldn't
have hearings, and then the advice and consent becomes a rubber
stamp. And it is not the hearings; I don't care about the
hearings. I don't care how this comes out. You know, it could
be questions that the President asks, and this hearing has
convinced me further that having these kinds of issues out
there is important.
It is not the sole determination, just as there is no
litmus test on even any specific issue. But I think we have
messed ourselves up by having this shibboleth that this stuff
doesn't matter.
Ms. Greenberger. I also want to draw a distinction between
filing a recusal motion and a judge feeling as if he or she
needs to recuse themselves from a case. Filing a motion isn't
dispositive.
Chairman Schumer. Professor Sunstein and then Professor
Volokh.
Mr. Sunstein. I do think things are simpler and more agreed
on than some of the last few minutes suggest. Of course, you
can ask any question you want, and then it is up to the nominee
to decide how to answer. And if the nominees says, I am sorry,
I feel any answer would be to pre-commit myself and would be
inappropriate, then you are perfectly entitled to take that
into account.
I don't know that anyone disagrees. I think some of the
detail has gotten away from that broadly sensible way of
proceeding.
Chairman Schumer. Right, but you would also say--and this
is where people would disagree, but to me, at least, asking,
say, about the Buckley v. Valeo case and getting sort of
nothing, you know, sort of what Mr. Bolick said, that should
legitimately enter into my evaluation of whether this nominee
deserved to get to the bench. I think that is where we have a--
--
Mr. Sunstein. I think you are right, and if the nominee
said I think Buckley v. Valeo should be overruled and I won't
respect it as a lower court judge, that would be entitled to
consideration, also. Any answer.
Chairman Schumer. Professor Volokh?
Mr. Volokh. Senator, actually I do think that the question
you ask is a very tough question. I don't know to what extent
it is proper to even ask point blank, what do you think of this
decision and how would you vote in the future. There are
certainly arguments for it, but it seems to me important to
recognize that it is not the same as just looking at what this
person has written as a scholar.
Somebody who is elevated to the bench can say, look, you
know, sure, I wrote this law review article, but that was a law
review article and now I have changed my mind. It is, I think,
a lot tougher when somebody is testifying under oath in a
situation where a decision about their future career was going
to turn on this. There is always the fear that they will say,
when I say I have changed my mind, people will misperceive that
and will think that, in fact, I wasn't being quite candid
before the Committee earlier.
I think a good example of the implication of that is you
read back to Mr. Bolick an earlier article that he had written,
and I think that is a powerful way of arguing. Imagine this had
been sort of testimony that he had given. I take it that he
would feel in a much tougher position explaining how it was
that he----
Chairman Schumer. But, Professor Volokh, the purpose of
this process, and I would say the Founding Fathers' purpose
relates ultimately to the responsibility to the people, not to
the potential judge and to the point that this person, he or
she, may be put in an embarrassing position or be put on the
spot.
As has been said by almost everyone here, it is a lifetime
appointment, and I think my 19 million people in New York and
the 260-some-odd-million Americans are entitled to know quite a
bit, and I would agree with the Supreme Court more than the
lower courts, but even with the lower courts to have some
degree of understanding.
Mr. Volokh. Senator, of course it is about the people. The
question is, and I think it is genuinely tough question, to
what extent are the people entitled to have judges who have not
found themselves put in a position where they are essentially -
no matter how exactly they might put it, but where they
essentially feel they are pre-committing themselves under oath.
Chairman Schumer. We may get tautology here. I would argue
to you if we discussed so-called ideology openly, it would be
better for those nominees because they would be--and I think we
would come to much more of an agreement here. They would be
less ``gotcha,'' there would be less trying to nail somebody
for something, and I think the American people would have a
better understanding and better respect for the bench. That is
at least my preliminary view.
Professor Presser?
Mr. Presser. A very quick comment because I have to run to
catch a plane, but it seems to me that whatever you need to
determine a nominee's judicial philosophy ought to be fair
game. But one of the points that you made very early on that we
haven't talked about that we really should say something about
is the notion that anybody who comes before the Judiciary
Committee has a presumption against them that they have to
overcome. Those weren't the words that you used, but the----
Chairman Schumer. We are going to have a hearing to decide
if that should be the case or not.
Mr. Presser. The implication is that you are guilty until
proven innocent, and that wouldn't be the kind of deference to
the executive branch that I think you want to have.
Chairman Schumer. Right. I would not characterize it that
way. The question is should our purpose be to find
disqualifiers or should there be an affirmative case that has
to be made by the nominee that he or she should be on the
bench. I think that is going to be a very interesting hearing.
Mr. Bolick. Senator, some of us have to defer to airline
schedules.
Chairman Schumer. OK. Well, then let me, in conclusion,
thank every one of you for being here. I think this has been a
tremendously important hearing that is going to make all of us
think a great deal as we move forward in this process.
Senator Sessions. Mr. Chairman, I would just like to add a
thank you for your cooperative spirit, and your staff who has
worked well with us on it. I would just add that every Senator,
of course, can pursue matters as aggressively as he or she
chooses. I guess one of the things that is troubling us is how
far should we go, No. 2. And, No. 2, I wish we could think of a
better word than ``ideology,'' however we pronounce it, because
this Miller Report condemns the use of ideology.
It deals with partisanship or political philosophy, and I
voted for a lot of people whose politics are quite different
from mine. But I believe they would follow the law, so I
followed their legal philosophy, not their political agenda.
Chairman Schumer. Well, that is a great suggestion and we
will take it up.
I want to ask unanimous consent that the statement by
Senator Thurmond be added to the record.
The record will kept open for 1 week for any additional
material to be submitted.
With that, we adjourn with profound thanks to all of our
witnesses.
The hearing is adjourned.
[Whereupon, at 2:37 p.m., the Subcommittee was adjourned.]
THE SENATE'S ROLE IN THE NOMINATION AND CONFIRMATION PROCESS: WHOSE
BURDEN?
----------
TUESDAY, SEPTEMBER 4, 2001
U.S. Senate,
Subcommittee on Administrative Oversight and the
Courts,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:07 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles
Schumer, Chairman of the Subcommittee, presiding.
Present: Senators Schumer, Durbin, Sessions, Hatch,
Thurmond, Kyl, and McConnell.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Chairman Schumer. The hearing will come to order. On behalf
of the Subcommittee and Senator Sessions and myself, we would
like to welcome everybody to the second in a series of hearings
that the Subcommittee on Administrative Oversight and the
Courts is holding to examine the judicial nomination and
confirmation process.
Our first hearing examined the role of ideology in the
Senate's consideration of judicial nominees. By the hearing's
close, I think we showed that an open, honest and above-board
consideration of a nominee's judicial ideology ultimately
benefits the Senate and the nominee by keeping the inquiry
focused on issues of substance rather than falling prey to the
type of ``gotcha'' politics that has unfortunately emerged over
the past two decades.
We also showed that openly considering judicial ideology
benefits the judiciary itself by helping ensure that our courts
remain balanced and moderate and represent the views and
beliefs held by the majority of the American people.
Today, we have another opportunity to shed more light on
the judicial confirmation process. In recent history, both
Republican and Democratic Presidents have nominated
controversial candidates to the bench. The confirmation process
for many of these candidates has been tarnished by allegations
of unfair treatment of the nominees by both sides, Republicans
and Democrats.
It is time to clean up what has all too accurately been
called the ``confirmation mess.'' That is why we are holding
these hearings, to look at what the process has become and talk
about how to turn it into something that treats both the
nominees and the Senate with dignity and respect, and ensure
that the Federal bench receives the very best candidates our
Nation has to offer. It is an appropriate time to do this,
before our full Committee and this Subcommittee get caught up
in Supreme Court nominees and the thicket and maelstrom that
that may produce.
Today, we take our next step toward that goal. We have
invited a series of distinguished witnesses from across the
political spectrum to come and discuss the Senate's role in
judicial nominations and confirmations. During today's hearing,
we will explore and hopefully answer one simple yet important
question: On whose shoulders should the confirmation burden
rest? Should the Senate ask itself, why shouldn't we confirm
this nominee, or should the Senate ask the nominee, why should
we confirm you?
The former puts the burden of proof upon the Senators,
requiring them to either rubber-stamp the nominee or uncover
evidence, often in the vein of ``gotcha'' politics, showing why
the nominee is unfit for nomination. The latter puts the burden
of proof on the nominee, requiring the nominee to demonstrate,
based on his or her experience, qualifications, background,
judicial ideology and writings, among other factors, why he or
she merits a lifetime appointment to the Federal bench. The
difference is subtle yet profound, impacting both the overall
quality of the judiciary and the future of the advise and
consent process.
As I so often learn, the best way to figure out what to do
next is often by looking back at what the Framers did first.
When the Framers debated how to fill judgeships on the Federal
bench, they considered a wide range of possibilities. The
options went from vesting all power in the Senate to giving the
President unilateral authority to appoint judges.
According to the records of the Constitutional Convention,
some delegates were concerned that the President might use the
appointment power to put only his friends and like-minded
thinkers on the Federal bench. So the Framers acted wisely.
They chose a middle course that balanced power between the
President and the Senate. The President was given the ability
to nominate, but the Senate was given roles of offering advice
in nominations and deciding whether to consent to those
nominations.
In Federalist 77, Alexander Hamilton, a great New Yorker
and a proponent of a powerful presidency and executive branch,
lauded this balance of power. He noted that the very purpose of
the Senate's role is to ``restrain'' the President as he
exercises the nomination power. Hamilton foresaw an active
Senate examination of judicial nominees, where blame would lay
at the Senate's door if qualified nominees were rejected, but
where credit would be given to the Senate when undeserving
nominees were justifiably denied confirmation.
What does that mean? To me, it seems clear that the Framers
wanted the President to select candidates for the bench, but
that they also wanted the Senate to actively deliberate whether
those candidates are fit for the bench. And I know that several
of my colleagues, including the distinguished Minority Leader,
Senator Lott, and my ranking colleague, Senator Sessions, the
Ranking Member of this subcommittee, have made similarly strong
statements in favor of a very active Senate role in the
confirmation process.
Given the stakes at hand, it makes sense that the burden
should rest with the nominee. We require parties who appear
before a court to prove their case. It is not unreasonable to
ask those who come before the Senate seeking a lifetime
appointment to the Federal bench to do the same.
Imagine a job interview where you walk in and it is up to
the interviewer to either automatically hire you or find
something in your past that disqualifies you. Provided you just
sit there with your mouth shut, or at the very most voicing
meaningless platitudes, and as long as there is no major
skeleton in your closet, you are a shoo-in for the job. Is that
the best way to find the best person for the job? Of course
not. Any company built that way would be filing for Chapter 11
in months, but here in the Senate we sometimes call that the
judicial confirmation process. And here in the Senate, the
nominee gets the job for life.
Our system is on the verge of being broken and it needs
fixing. The Founders, from Federalists like Hamilton to
Democrats like Madison and Jefferson, would be shocked if they
saw what was happening today. The Federal bench should be
filled with the best and brightest legal talent. When the
screening board is merely charged with asking itself why not
this nominee, we can never hope to achieve the level of
excellence the Framers intended and the American people have
the right to expect.
When two co-equal branches of government are given balanced
roles in a system, as is the case with judicial nominations and
confirmations, the Senate cannot simply presume that the
President's pick merits confirmation. A mistake here doesn't
last just 2, 4 or 6 years, as it does with elected
representatives; a mistake here lasts a lifetime. That is why
it is our duty to ask every nominee ``why should we,'' instead
of asking ourselves ``why not.''
What does that mean for the President's nominees, this
President's or any other? It would mean that they can expect to
be treated fairly, but questioned rigorously. It means that
they will be respected, but not rubber-stamped. It means that
they will not be ignored, but they will also not be rushed.
Of course, saying the burden should be on the nominee
doesn't answer the question of what the nominee should have to
prove. At our first hearing, we established that ideology has
been, is, and in my judgment should be a part of the inquiry.
But other factors, such as diversity and political climate of
the day, should be considered, too.
One factor that some of our witnesses focus on in their
written testimony is the question of experience. By experience
I don't just mean legal experience. We are talking more broadly
about the importance of real-world experience, political
experience, governmental experience. We are talking about the
range of experience that we need to make the bench
representative of and better able to understand America.
As Professor Tushnet points out in his testimony, the real-
world experience of Justice Thurgood Marshall, the executive
branch experience of Justice Byron White, and the national
experience of Louis Brandeis all helped them make substantial
contributions to the Supreme Court's understanding of important
national issues, even though those experiences weren't solely
in the courtroom. Some of our witnesses today will help provide
a historical context for placing the burden of proof on the
nominee. Others here will surely disagree, and that is what
makes these hearings interesting.
Before I turn to our ranking member, Senator Sessions, for
his opening statement, I want to remind everyone that our third
hearing, which will be held in the coming weeks, will examine
the new federalism and the recent trend in Federal courts of
limiting Congress' power to pass laws that affect people's
everyday lives in important ways.
In conclusion, I want to thank Senator Sessions for again
helping make this hearing a fully bipartisan hearing. We have
had an equal number of witnesses and I have tried, as Chair,
not to interfere with who Senator Sessions would think would be
best to answer these questions. I look forward to continuing in
this mode of productive bipartisanship.
You and your staff, Jeff, have helped us get this hearing
scheduled in a short timeframe and have been a real pleasure to
work with.
I now call on Senator Sessions for an opening statement.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman, and I would like
to say that you have been extraordinarily courteous and
accommodating as we work through these issues. I think it is
fine and appropriate that we have hearings to discuss these
issues. It is an important matter.
Basically, it is an important matter for each individual
Senator because each Senator will have their own standard for
what they believe should be the test for a nominee, whether or
not they should be confirmed individually, and we have had
different ones in the past and we will have different ones in
the future.
I also appreciate your concern over the ``gotcha''
politics, having seen that firsthand and seen it over the
years. I don't think that is a healthy way to go about the
process. Some have said, well, they do that because they don't
want to confront a person's philosophy. And I think you are
saying, well, let's just talk about the philosophy more openly,
and maybe that has validity. I think we just must be cautious
how we go about it.
It is a difficult thing to analyze a nominee and say, well,
we don't agree with your politics, therefore you are not a good
nominee. I think that is an unhealthy approach. It rejects the
concept which I as a practicing attorney in Federal court full-
time for almost 15 years saw, which was on a daily basis all
over America judges are making decisions based on law and facts
and not on politics.
We in this body seem to think politics trumps everything
and that you can't remove politics from it. But the truth is
justice goes on in this country on a daily basis based on law
and facts, and politics does not enter into it. I think it
would be dangerous if we as a Committee were to suggest that a
nominee who is a conservative or a liberal wouldn't be
qualified because of their political views when, in fact, day
after day they both, as good lawyers and good judges, would
probably rule the same way.
We will examine the role of the Senate today in the
nomination and confirmation process. The Constitution simply
states that the President ``shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint...Judges of the
Supreme Court, and all other Officers of the United States...''
Thus, the Senate has the duty and responsibility to advise the
President on judicial nominees.
I am glad to see that President Bush is consulting with
Republican and Democratic Senators from each judicial nominee's
home State before the nominations are made. I think that is a
healthy thing and I believe it will eliminate some difficulties
that might otherwise occur. President Clinton's people talked
with me normally before a nomination came forward in the State.
Once the President forwards a nomination to the Senate,
Article II, section 2, clause 2, of the Constitution empowers
the Senate to confirm or reject a nominee. It does not provide
a standard for doing so. While the Senate has a great deal of
latitude in exercising the power to confirm, it has the duty to
exercise that power in a responsible manner.
One of the responsibilities is the manner in which the
nomination hearings are conducted. Senator Hatch, to my right,
while he was the Chairman of the Judiciary Committee, examined
each nominee's integrity, qualifications, temperament, and
approach to the law. While Senators sometimes disagreed on
these issues, Senator Hatch is to be commended for not carrying
out ``gotcha''-type hearings to attack judicial nominees of the
Clinton administration. This practice, I believe, panders to
special interest groups at the expense of fairness in the
hearings. If there was a personal issue, Senator Hatch usually
would handle that privately. Senator Hatch elevated the
confirmation process, and I believe justice in America
benefited from it.
Another responsibility of the Senate is to confirm enough
judges to assure the proper functioning of the judiciary. A
judiciary cannot function without judges, and this is usually
measured by the number of nominees, though we too little talk
about it. President Clinton left office with a Republican
Senate and there were just 67 vacancies, only 4 more than when
the Democrats controlled the Senate in 1994. I believe that we
did a pretty good job of moving nominees forward; in fact, a
very good job of moving nominees forward. I think this Senate
now, with a Democratic majority, is going to be challenged to
meet that record.
Another responsibility of the Senate is to examine the
record of each nominee to ensure they are qualified, have
integrity, have judicial temperament, and will follow the law
as written and as intended. If a nominee's record indicates
that they lack those qualifications or will not follow the law,
then the nominee, whether liberal or conservative, Republican
or Democrat, should not be confirmed.
That the Senate is not a rubber stamp does not mean that it
should be an aggressive co-policer, co-nominator, with the
President of the United States. We have heard much about the
need for the Senate to return to its historic role of
aggressively defeating judicial nominations. It is true that
during the first 100 years of our country's history, a number
of nominees to the Supreme Court were not confirmed. The
reasons why, however, have not been clearly explained. Many
nominees declined to serve because of the Court's lack of
prestige at that time, and others were not confirmed due to the
lame duck or near-lame duck status of the nominating President.
In fact, only a very few were rejected because of what
might be called their ideology. Thus, the impression that the
Senate, as one witness earlier had said, took an early,
vigorous role in policing the ideology of the Court or in
making nominees bear the burden of proving their moderation in
order to earn confirmation, is not borne out by the facts.
If history is to serve as a guide, we would do well to
examine it with respect to the burden, or lack thereof, on
nominees to prove their worthiness of confirmation beyond their
paper record. During the first 130 years of our country, the
Senate did not ask nominees any questions at hearings, probing
or otherwise. The first nominee to even appear before the
Senate was Harlan Fiske Stone, in 1925, and nominees did not
appear regularly before the Judiciary Committee until John
Marshall Harlan II, in 1955.
Occasionally, the Committee asked a few nominees questions
in writing, but there was not probing examination and cross-
examination in committee. It would therefore be difficult
indeed for a nominee to bear some burden--illusory burden, I
would suggest--of earning confirmation to submit to vigorous
cross-examination and to personally convince Senators on the
Committee that he or she truly meets the criteria in a way not
reflected in that nominee's record, if indeed the nominee was
not present at the hearing or there was no hearing.
Further, to place the burden on President Clinton's 377
nominees who were confirmed by this Senate would have been a
logistical impossibility. To make each one prove their
worthiness beyond their record as reflected in the files and
forwarded to the committee, beyond the ABA rating, beyond the
FBI background check, beyond the support of their home State
Senators, would create an unprecedented logjam.
Generally, nominees are asked general questions and then
confirmed without having to prove their worthiness by long
statements or extensive cross-examination or production of
philosophical documents. As a general matter, the history and
practicalities of the appointment process make it very unlikely
that the burden should even be on the nominee to prove his
worthiness for confirmation. Thus, the presumption in favor of
confirmation is a historical and practical necessity.
Moreover, shifting the burden to the nominee, when combined
with policing for, let's say, conservative views, would, of
course, place the Republican nominees in a catch-22. On the one
hand, the Democrats would say that they would vote against the
nominee if he answers questions in a manner that shows he is
conservative. On the other hand, they could then say that they
would vote against the nominee if he refuses to answer
questions because he hasn't borne the burden. This catch-22
would not be a healthy thing, in my view.
So under the broad guidelines of the Constitution, a
Senator can ask a nominee any question and a nominee can answer
in any way he chooses or not at all. And while the Senate is
not a rubber stamp, we owe to the institution of the Senate not
to degrade the advice and consent process to the point of
partisan bickering that could politicize the Federal courts.
That was the testimony we had earlier in one of our previous
hearings.
We don't need a double standard for confirmations. We need
the same standard that former Chairman Hatch used with
President Clinton's nominees, one of deference to the President
and respect for the nominee and respect for the non-political
rule of law.
Mr. Chairman, thank you, and I ask that my full statement
be made part of the record.
Chairman Schumer. It will be made part of the record.
[The prepared statement and an attachment of Senator
Sessions follows:]
Statement of Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama
While I welcome this review of the Senate's constitutional advice
and consent responsibilities, I am concerned that if a new higher
standard for confirming Republican judicial nominees is adopted it will
degrade the Senate's role in the appointment process.
Concerns
On April 30, 2001, at a private retreat, Laurence Tribe, Cass
Sunstein, and Marcia Greenberger lectured Democratic senators on how to
block Republican judicial nominees by ``changing the ground rules.''
Neil A. Lewis, Democrats Readying for a Judicial Fight, N.Y. TIMES, May
1, 2001. Then on June 26, 2001, Tribe, Sunstein, and Greenberger were
invited to testify before this subcommittee at a hearing entitled,
``Should Ideology Matter? Judicial Nominations 2001.'' They argued, in
effect, for a higher standard for confirming Republican nominees than
was used to confirm Democratic nominees.
The higher confirmation standard is justified, according to Tribe,
Sunstein, and Greenberger, because, they insist, Clinton appointed no
liberal judges (they really said that) and that as a result the courts
are to the ``right'' of mainstream, and that the Republican Senate was
unfair to President Clinton's nominees. These justifications for a
higher standard do not survive close examination.
First, President Clinton certainly appointed liberals to the
courts. Ruth Bader Ginsburg was the general counsel to the ACLU before
she was elevated to the Supreme Court. Marsha Berzon was the head of
the litigation section for the ACLU's San Francisco chapter before
President Clinton appointed her to the Ninth Circuit. Certainly, these
were ``liberal'' appointees.
Second, the Rehnquist Court is not far to the ``right'' of the
mainstream and thus in need of ``balancing'' by ``moderate''
appointees. Indeed, the Rehnquist Court has protected burning the
American flag, United States v. Eichman, 496 U.S. 310 (1990), banned
voluntary student prayer at high school football games, Sante Fe
Independent School District v. Doe, 530 U.S. 290 (2000), protected
special rights for gays, Romer v. Evans, 517 U.S. 620 (1996), stopped
the police from using heat sensors to search for marijuana growing
equipment, Kyllo v. United States, 121 S.Ct. 2038 (2001), and
reaffirmed and expanded abortion rights, Stenberg v. Carhart, 530 U.S.
914 (2000). Perhaps these rulings are far to the ``right'' of Tribe,
Sunstein and Greenberger, but they are not far to the right of Middle
America.
Third, despite reports to the contrary, the Republican Senate was
not unfair to President Clinton's judicial nominees. To the contrary,
the Senate confirmed 377 of President Clinton's nominees and left only
41 pending at the end of his tenure. This compares favorably to the 382
confirmations for President Reagan and the 54 nominees left pending at
the end of the first President Bush's term.
Thus, the characterizations of President Clinton's appointees as
wholly non-``liberal'', of the Rehnquist Court as out of the
``mainstream,'' and of the Republican Senate's treatment of President
Clinton's nominees as ``unfair'' do not pass muster. To use these false
premises as the justifications to impose a higher standard for
confirming Republican nominees than that used to confirm 377 Democratic
nominees would be wrong and seriously degrade the confirmation process.
In my view, we do not need to inject a stealth partisanship into the
advice and consent process under the labels of ``balance,''
``moderation,'' or ``mainstream.'' Instead, the President needs to
nominate and the Senate needs to examine and confirm qualified, fair
judges who will follow the law.
The Nomination Process
At today's hearing, we examine the role of the Senate in the
nomination and confirmation process. The Constitution simply states
that the President ``shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint . . . Judges of the Supreme Court,
and all other Officers of the United States . . . .'' Thus, the Senate
has the duty and responsibility to advise the President on judicial
nominees.
Part of this responsibility is reflected in the tradition of
senatorial courtesy which dates back to George Washington's Presidency.
The input of home state senators is an important part of this process.
I believe that the President should consult in good faith with home
state senators prior to nominating a judge to a federal court located
in that state. In my view, although the power to nominate belongs
solely to the President, the President has the obligation to listen to
home state senators before he makes his decision to nominate a
particular person. I am glad to see that President Bush is consulting
with Republican and Democratic senators from each judicial nominee's
home state prior to making the nomination.
The Confirmation Process
Once the President forwards a nomination to the Senate, Article II,
section 2, clause 2 of the Constitution empowers the Senate to confirm
or reject a nominee. It does not provide a standard for doing so.
While the Senate has a great deal of latitude in exercising the
power to confirm, it has the duty to exercise that power in a
responsible manner. One of the responsibilities is the manner in which
nominations hearings are conducted. Senator Hatch, while he was
chairman, examined each nominee's integrity, qualifications,
temperament, and approach to the law. While senators sometimes
disagreed on these issues, Senator Hatch is to be commended for not
calling a series of nominations hearings at which panels of witnesses
were called to attack judicial nominees. This practice inevitably
panders to special interest groups at the expense of the nominee. If
there was a personal issue, he handled it privately, thus saving the
nominee and the nominee's family much anguish. His fairness and
gentlemanly demeanor were a credit to the chair he held, to this
Committee, to the Judiciary and to the Senate as a whole. He did not
respond to the ``Borking'' procedures used against some Reagan and Bush
nominees by doing the same. He elevated the confirmations process, and
justice in America benefitted from it.
Another responsibility of the Senate is to confirm enough judges to
ensure the proper functioning of the federal judiciary. A judiciary
cannot function without judges. This is generally measured by the
number of vacancies on the federal bench. At the end of each Congress
during the Clinton Presidency, the number of vacancies on the federal
bench was far lower than it is today:
------------------------------------------------------------------------
Year Senate Vacancies
------------------------------------------------------------------------
1994 Democrat 63
1996 Republican 65
1998 Republican 50
2000 Republican 67
September 4, 2001 107
------------------------------------------------------------------------
Though the media generally refuses to report it, when President
Clinton left office with a Republican Senate, there were just 67
vacancies--only 4 more than when the Democrats controlled the Senate in
1994. Because of retirements, deaths, and the lack of confirmations,
the number of judicial vacancies has grown to 107 since the last
Congress under President Clinton adjourned. Thus, if no more
retirements or deaths occur between today and the end of the year, we
will need 40 more confirmations to match the number that the Republican
Congress left President Clinton with last year. In the first years of
the past three Administrations, all but one of the nominees who were
nominated before the end of the August recess were confirmed in the
first year of the Presidency. Thus far, the Senate has confirmed only 4
of the 44 nominations that President Bush has made prior to the August
recess. We can do better.
Moreover, there are certain districts, like the Southern District
of California, that desperately need new judgeships. I hope that the
Committee can act in a bipartisan basis to create a moderate number of
new judgeships where the caseload is the most egregious and the
consistent administration of justice is at risk.
Another responsibility of the Senate is to examine the records of
each nominee to ensure that they are qualified, have integrity, have a
judicious temperament, and will follow the law as written and intended.
If a nominee's record indicates that he or she lacks qualifications,
integrity, a judicial temperament, or will not follow the law, then
that nominee whether Republican or Democrat, liberal or conservative,
should not be confirmed.
That the Senate is not a rubber stamp does not mean that its proper
role is that of aggressive policer or even co-nominator with the
President. In Federalist No. 76, Alexander Hamilton set forth the view
of the Framers that ``[i]n the act of nomination, [the President's]
judgement alone would be exercised; and it would be his sole duty to
point out the man, who with the approbation of the Senate, should fill
an office.'' \1\ Hamilton added that the Senate was to serve as ``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.'' \2\ Moreover, he stated that the Senate should
``not be tempted by the preference they might feel to another [nominee]
to reject the one proposed.'' \3\ Thus, the Senate should ensure that
the President's nominees meet the criteria of qualification, integrity,
temperament, and fidelity to law, and if they do, we should give
deference to those nominees.
---------------------------------------------------------------------------
\1\ The Federalist No. 76, at 456-57 (Alexander Hamilton) (Clinton
Rossiter ed., 1961).
\2\Id. at 457.
\3\ Id.
---------------------------------------------------------------------------
We have heard much about the need for the Senate to return to its
historic role of aggressively defeating judicial nominations. It is
true that during the first 100 years of our country's history, a number
of nominees to the Supreme Court were not confirmed. The reasons why,
however, have not been clearly explained. Many nominees declined to
serve because of the Court's lack of prestige at the time and others
were not confirmed due to the lame-duck or near lame duck status of the
nominating President. In fact, only a very few were rejected because of
their own ideology. Thus, the impression that the Senate took an early
vigorous role in policing the ideology of the Court or in making
nominees bear the burden of proving their moderation in order to earn
confirmation is not true.
The Burden
If history is to serve as the guide, however, we would do well to
examine it with respect to the burden, or lack thereof, on nominees to
prove their worthiness of confirmation beyond their paper record.
During the first 130 years of our country's history, the Senate did not
ask nominees any questions at hearings, probing or otherwise. The first
nominee to even appear before the Senate was Harlan Fiske Stone in
1925, and nominees did not appear regularly before the Judiciary
Committee until John Marshall Harlan II in 1955. Occasionally, the
Committee asked a few nominees questions in writing, but there was no
probing examination and cross examination in Committee. It would be
difficult indeed for a nominee to bear some illusory burden of earning
confirmation, to submit to vigorous cross examination, and to
personally convince senators on the Committee that he truly meets the
criteria in a way not reflected in his record, if the nominee was
absent.
Further, to place the burden on President Clinton's 377 nominees
who were confirmed by the Senate would have been a logistical
impossibility. To make each one prove their worthiness beyond their
record as reflected in the files forwarded to the Committee, beyond the
ABA rating, beyond the FBI background check, and beyond the support of
their home state senators would create an unprecedented logjam.
Generally, nominees are asked a few stock questions and then confirmed
without having to prove their worthiness for confirmation by long
statements, extensive cross-examination, etc. As a general matter, the
history and practicalities of the appointment process make it very
unlikely that the burden should or even could be on the nominee to
prove his worthiness for confirmation. Thus, the presumption in favor
of confirmation is a historical and practical necessity.
Moreover, shifting the burden to the nominee when combined with
policing for conservative views, would, of course, place Republican
nominees in a Catch-22. On the one hand, the Democrats could say that
they would vote against a nominee if he answers questions in a manner
that shows he is conservative. On the other hand, the Democrats could
say they would vote against a nominee if he refuses to answer their
questions because he hasn't borne his burden. This Catch-22 for
Republican nominees was not used for Democratic nominees and should not
be used for any nominees.
Conclusion
Under the broad guidelines of the Constitution, a senator can ask a
nominee any question, and a nominee can answer any way he chooses or
not at all. While the Senate is not a rubber stamp, we owe it to the
institution of the Senate not to degrade the advice and consent process
to the point of partisan bickering that could politicize the federal
courts. We don't need a double standard for confirmations. We need the
same standard that former Chairman Hatch used with President Clinton's
nominees--one of deference to the President and respect for the
nominee, and respect for a non-political rule of law.
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Chairman Schumer. I thank you, Senator Sessions.
I know that we have Senator Simon waiting. We are going to
ask, if that is OK with the other members, that whatever
opening statements they have be done as part of the question
period. Otherwise, we will be here kind of late.
Senator Thompson is on his way over. He is debating the
Export Administration Act on the floor, but let me call on
Senator Simon here before us. I don't think he needs much of an
introduction, but the best introduction that he can get to all
of us on the panel is from his successor in the U.S. Senate and
longtime friend, Senator Durbin. So I am going to call on
Senator Durbin, a member of this subcommittee, to introduce
Senator Simon.
Senator Durbin. Thank you, Mr. Chairman, and I am sure
other members of the Committee could take over this
responsibility quite well.
I see that Senator Hatch has brought a copy of your book,
Paul, to this hearing, so you know that you might be asked some
questions about its content.
It is my honor today to introduce Paul Simon formally to a
Committee where he served for many years. Back in 1966, in a 6-
month period of time as a college student, it was my great
honor to meet two men who changed my life: one, Senator Paul
Douglass, whom I interned for across the street in what was
then known as the Old Senate Office Building, and then just a
few months later an Illinois State senator with a bow tie named
Paul Simon. Those two men had a profound impact on my career
decision, and ironically here a few years later I have
succeeded both of them to this Senate seat.
I come here as a friend of Paul Simon's, who was also my
mentor and inspiration and for many years. He served in the
House and in the Senate, and while in the Senate served on the
Judiciary Committee, of which we are all members. He was here
during a very historic period when the nominations of Robert
Bork and Clarence Thomas were considered, and I know that those
experiences became an important part of his book Advise and
Consent, which many of us have had the good opportunity to
read.
I want to thank Paul Simon for joining us and I want to
make certain that we plug his current position. He is on the
faculty of Southern Illinois University, in Carbondale. He is
the founder and director of the Public Policy Institute, where
he teaches classes in legislative process for their Department
of Political Science and non-fiction writing for the Department
of Journalism. He is just as actively involved in the actions
and passions of his time as he was as a member of the U.S.
Senate and I am happy to welcome him back to the committee.
Chairman Schumer. Thank you, Senator Durbin. We all agree
with your words of admiration--there is no better word, I
think--that we all have, regardless of our party, for you,
Senator Simon. It is an honor to have you here. Your entire
written statement will be read into the record and you may
proceed as you wish.
STATEMENT OF PAUL SIMON, FORMER U.S. SENATOR FROM THE STATE OF
ILLINOIS
Mr. Simon. I thank you very much, Mr. Chairman. I thank
Senator Durbin for his generous remarks. He could have given
you a more balanced introduction and I am grateful that he
didn't do that.
I didn't have the privilege of serving with you Mr.
Chairman, in the Senate, but I worked with you when you were in
the House, and Senator McConnell I worked with; Senator
Thurmond I worked with.
I believe you had little seniority over me, Senator
Thurmond, but it was a pleasure to work with you.
Senator Hatch was either the Ranking Member or the Chairman
of the committee. Senator Sessions is the new Howell Heflin,
from Alabama, of this committee. It is a pleasure to be with
all of you.
Senator Sessions. Thank you, Senator.
Mr. Simon. I will read part of my remarks. As those of you
who served with me know, I didn't read remarks when I was on
the floor of the Senate, but you demanded a statement and I had
to sit down at my old manual typewriter and knock one out, and
so I will read part of my brief statement here.
The original idea was that the Senate would be kind of an
informal Cabinet for the President. But that quickly gave way
and then when it came time for the first confirmations, the
Senate invited George Washington to come up to the Senate to
discuss the confirmations. George Washington properly, as he
did in so many things, said you ought to make this decision;
the President of the United States shouldn't be influencing the
decision that you make. That is how things started, and
started, I think, in a proper direction.
By tradition, the President does seek our advice on the
district judgeships. There, the advice and consent mandate of
the Constitution is clearly followed. At the appellate level,
it is sometimes followed. Because I served on this committee,
on at least two occasions I was consulted by the White House on
appellate nominations.
But at the most important level, the Supreme Court, it is
rarely followed today. We are a long way from a Supreme Court
contest in which President James Garfield wrote that a
nomination he made--and I am quoting President Garfield now--
``will settle the question whether the President is the
registering clerk of the Senate or the executive of the United
States.''
Two days after George W. Bush took the oath of the
presidency, he met with six Democrats--Senator John Glenn;
Carter Press Secretary Jodie Powell; Walter Mondale's chief of
staff, Richard Mole; former Congressman Bill Gray; former
Democratic National Committee Chair Robert Strauss; and
myself--on how he could reach out to Democrats. I stressed that
when it comes to nominations for the United States Supreme
Court, he should take his time, consult with members of this
Committee of both political parties, and with others, because
that legacy would live long after his presidency.
On the lower courts, it is important that you get the
opinion, I believe, of the American Bar Association. Even with
that screening, occasionally a marginal appointee would appear
before us where I said to myself, I hope nothing too
complicated comes before this judge.
I stopped only two nominations that I recall, one a nominee
who made racially insensitive remarks, and the other a nominee
who refused to resign from a club which discriminated, a
practice I am pleased to say the Committee now follows. Beyond
that, unless views expressed by a lower court nominee are
extreme or there is an evident lack of ability or a question
about integrity, I believe the nominee should be approved.
Let me illustrate. When Clarence Thomas came before this
Committee for chairmanship of the Equal Employment Opportunity
Commission, I voted against him because he did not believe in
the mission of the agency. When he came before us as a nominee
for the appellate court, I voted for him, but said at the time
if he should be nominated to the United States Supreme Court, I
would probably vote against him because of his philosophy, and
that I did.
On Supreme Court nominations, whatever is considered by the
President properly should be considered by the Senate. While it
is true that sometimes nominees follow and unexpected pattern,
in the large majority of cases the background of the nominee is
an accurate gauge of the future decisions that Justice will
make.
In one of the worst decisions of the Supreme Court ever
made, the Korematsu decision, approving Franklin Roosevelt's
1942 order to suddenly relocate 115,000 Japanese-Americans, not
a one of whom had committed a crime, one of the three Court
dissenters was a nominee of President Herbert Hoover, and among
the six in the majority were Justices Hugo Black and William
Douglas, usually champions of civil liberties. One of the few
people within the administration to speak out against the
President's action was J. Edgar Hoover, later not so sensitive
to our basic liberties. But that unexpected pattern is unusual.
The best recent example of how a nomination should be
handled was President Gerald Ford's nomination of John Paul
Stevens. Attorney General Ed Levi scoured the landscape for a
quality Justice. Senators were consulted, as were many others.
The President did not act hastily. No President should, nor
should the Senate.
While it is not ideal, the Supreme Court can operate with
eight members, and whatever problems that presents, it is much
better than approving someone like Woodrow Wilson's appointment
of Justice James McReynolds, the clear winner of the award as
the worst Justice ever to serve on that high body.
During my 12 years on the Senate Judiciary Committee, no
President ever talked to me about a possible Supreme Court
nominee prior to the nomination. A President should do that;
that is what the Constitution calls for. The President does not
need to follow the advice of the Senate, nor the Senate of the
President.
The Senate favored naming Aaron Burr as Ambassador to
France, and sent James Monroe and James Madison to talk to the
President about it. George Washington refused, saying he had,
and I am quoting George Washington, ``made it an invariable
rule never to suggest to a high and responsible office a man
whose integrity he questioned.'' The President was right, the
Senate wrong.
Three suggestions: one, again, you should take into
consideration philosophy for a Supreme Court nominee. When Earl
Butz came before the Senate as the nominee for Secretary of
Agriculture, Senator Hubert Humphrey said to him, ``I am
worried about your economic philosophy. Your bonds and stocks
are to your credit. You have earned everything that you have.
You can put all that in escrow, but I don't think you can put
your philosophy into escrow.'' If that is a consideration for a
Secretary of Agriculture, how infinitely more true is it of a
lifetime member of the United States Supreme Court?
Two: practical political experience should be at least a
minor consideration. Linda Greenhouse recently had an article
in the New York Times in which she mentioned that only one
member of the current Supreme Court, Justice Sandra Day
O'Connor, has ever held elective office, having served in the
State legislature. Greater elective office experience would be
of help to this Court.
Three: a broad look for nominees to the Supreme Court
should include non-lawyers and members of the opposite party.
Justice Hugo Black favored having one or two members of the
Court who were not lawyers. Someone who became a Supreme Court
scholar like Irving Dilliard, of the St. Louis Post-Dispatch,
would have made a superb Supreme Court Justice. Let me add that
at the age of 72 I am not talking about myself. As to political
party, in the last century Presidents Taft, Wilson, Harding,
Hoover, FDR, Truman, Eisenhower and Nixon all nominated at
least one Justice of the other party.
One final footnote. In the history of the Senate, it has
rejected one-fifth of the nominees to the Supreme Court; in the
19th century, it rejected one-fourth--reasons enough for the
President and the Senate to work together.
Chairman Schumer. Thank you very much, Senator Simon, for
really excellent, thoughtful and practical testimony at the
same time. We very much appreciate your taking the time to come
here.
Senator Thompson has just arrived and as I mentioned before
he came in, we know that he is very busy right now on the floor
with pending legislation and went out of his way to be here and
provide his views to us very graciously.
Senator Thompson, as everybody knows, is a friend of all of
us, the senior Senator from Tennessee. He was Chairman of the
Committee on Governmental Affairs, and before joining the
Senate had a distinguished legal career as an attorney, serving
as a Federal prosecutor and working as a staffer on several
Senate committees, including a role as minority counsel on the
Senate Select Committee on Presidential Campaign Activities,
better known as the Watergate Committee. Elected to the Senate
in 1994, he previously held a seat on this committee.
I know, because Senator Sessions mentioned this to me
earlier, we both want to thank you personally for joining us
today on short notice, despite the fact that you are managing
an amendment on the floor. It was gracious of you. You may
proceed as you wish, and we know that you will have to get back
to the floor quite soon.
Thank you.
STATEMENT OF HON. FRED THOMPSON, A U.S. SENATOR FROM THE STATE
OF TENNESSEE
Senator Thompson. Thank you very much, Mr. Chairman. I
appreciate your calling me, although, as you indicated, we were
both kind of running and I wish my level of preparation was the
same as my level of interest.
I did want to be here with you for a few minutes today,
since you did extend the kind invitation, because of my respect
for you and the Ranking Member and what this Committee is
trying to do, and my respect for this gentlemen right here, who
personifies the integrity that we talk about when we talk about
qualifications for the judiciary.
It is wonderful to see you again, Senator.
I simply had a chance to jot down a few notes and would
simply like to share some thoughts as one member who is
concerned about the judiciary, who has practiced law for 20-
some-odd years in the vineyards, both civil and criminal, and
trial and non-trial, and one thing and another.
I understand, as all the members of this Committee
understand, the importance of what we are doing here because we
are ultimately not trying to win elections with this process or
not trying to come up with justifications for what we would
like to do. We are ultimately trying to see to it that over the
long stretch, a long period of time, we have the best judiciary
that we can possibly have.
I am concerned that we are not moving in the right
direction in that respect for a lot of reasons. Each person has
their own view about advice and consent and the process, and
from what I have read about it there have been times in history
where almost anything has been used as a legitimate reason for
supporting or opposing a President's nominations for the
judiciary. I think we have been kind of all over the map
historically. I don't think there is much to learn there,
except that if you want to do something or come up with a
reason, you can probably find some historical precedent for it.
I, first of all, turn to my own situation because every
member has got to come to terms with him or herself as to what
they felt that the Founding Fathers meant and would want them
to do and what would be best in terms of getting a good
judiciary.
To me, my hallmark has always been in looking at these
nominees competence and integrity, often used, not very
complicated, but to me is the absolute basis for any nominee. I
approach it by giving the President some deference. I did that
with President Clinton. I think my actions have backed up my
words, and the record would indicate that, not total deference,
not no deference, but some deference.
To me, that means if a President makes a nomination, I need
a reason to oppose it, with the goal toward the judiciary. And
I look at things within that broad category: if they have
served in a judicial capacity, are their arguments well-
reasoned, are they based on precedent, are they based on common
sense, logic, fairness, intellectual honesty.
When you are talking about lower court judges, as most of
the decisions--we may be here our entire careers and not have a
Supreme Court Justice to consider, but we will certainly have
lower court judges and district court judges. In many cases,
they are the most important. I don't know of anybody in our
system that is more powerful than a Federal district judge.
And if you appear before them on a regular basis, you soon
conclude that it is not Marbury v. Madison that you are
concerned about or that the judge is concerned about. It is
work habits, it is intellectual honesty, and it is not
political philosophy. It is competence and it is integrity and
it is the ability to handle a docket and be decent to people.
Those things are hard to over-emphasize when we are considering
the judiciary.
On the issue of judicial philosophy, I think a Senator has
a right to consider whatever he or she thinks is appropriate to
consider in making up their own mind. The problem, as we well
know, is that you are not going to be able to predict how a
person is going to decide a case. Cases are decided on the
basis of individual facts presented in a given situation. They
are not law school exams and they are not opinion pieces; they
consider disputed facts or they wouldn't be there to start
with, and factual issues.
We have seen too many cases to recount where Presidents
have been surprised and Members of Congress have been
surprised. Members have changed their minds about even law
review articles that they themselves wrote earlier. You cannot
predict. As the issues evolve, as society evolves, as a
person's experience and maturity evolve, you simply are not
going to be able to sit with any precision and make a decision
where you rank judicial philosophy very high on your scale and
feel like you are doing it based on some notion of certainty.
Again, I think we are not being totally honest with
ourselves if we say we do not want to know what a person's
judicial philosophy is, and if they have had a time on the
bench to know what that is. I don't think that is much of an
issue. I think clearly you want to know that. I think clearly
we do know that, and clearly we do evaluate that. We want to
make sure that that person is not an extremist in any way.
Oftentimes, we will not agree with that judicial philosophy
or their personal political views. I am sure that many of those
who almost overwhelmingly voted for Justice Ginsburg, having
represented the ACLU, probably did not agree with her on many
things. But I am sure they evaluated that, gave the President
the deference that they thought he should have under those
circumstances, and did not disqualify her because she had views
different.
I have tried to apply that. In my home State of Tennessee,
as Vice President Gore was clearly getting ready to run for
President, we had about five different occasions where he
essentially selected nominees down there. I supported every one
of them when I was on the Judiciary Committee. I got early
hearings for some of them. I came and introduced some of them.
One of them was for the Sixth Circuit Court of Appeals, and
other Federal district judges.
Probably, not a one of them would I have selected, strictly
based on political or judicial philosophy, or what I would
perceive would be their judicial philosophy, not to mention the
fact that it wouldn't hurt the Vice President any to have all
these judges appointed there, I suppose. But be that as it may,
the main thing was integrity and competence. These people were
people of integrity, these people were people of competence.
I went back this week and checked on every one of them, and
the only criticism I heard of one of them was that he takes it
so seriously that he gets frustrated; he is not managing the
docket well enough and it shows, and all of that. He can get
over that. He is competent, he has integrity, and I think that
I did the right thing.
I think we have got to be very careful not to get so
results-oriented. When I read, quite frankly, where people--let
me back up a second.
My concern now as we approach this new presidency is not
what individual Senators use as a criterion. I think we are all
going to do what we are going to do. I would be concerned if,
though, the impression is going to be left that in some way we
are going to come in and take factors that may have been
considered all along and rearrange them and reprioritize them
in a way to get the end result that we want to get. I do not
think that that is the right. With all the disputes we have had
back and forth, I do not think that has been done in the past.
I think the atmospherics of all that are important and I
think if we stray too far from the basics of competence,
integrity and some deference to any President, because he puts
the person in play--I mean, after all, it is not like we get to
come up with somebody. He puts the person in play and we are
put upon to deal with it. If we do that, we are going to get
bogged down into a political quagmire that is going to result
in endless rounds of payback.
When I read where people talk about we need new balance,
circumstances are different now; we have got a certain kind of
revolution going on, meaning an area of the law that I
specialize in and that is the most important one, and so it is
important we have certain kinds of judges for that; we need to
go back and rectify the injustice of Bush v. Gore--when I read
certain members are saying they are going to put a hold on
anybody in their entire circuit, whether it is in their State
or not, it is not going to help the judiciary any. It is hard
enough to get good judges as it is.
Mr. Chairman, back when Eisenhower was President and he had
the opportunity to appoint John Marshall Harlan to a Southern
district judgeship and he left Sullivan and Cromwell to take
that position, there are not many John Marshall Harlans. That
is for sure, but how many people of that caliber are eager now
to take on a Federal district judgeship? We have made that job
in many cases a very unattractive job. To start with, he would
have to make less than a beginning associate at Sullivan and
Cromwell.
But with all of the legislation we have passed and all the
additional burdens we have put on the judiciary, do we really
want to put these good people we are trying to entice to make
sacrifices through a living hell in order to get there? I don't
think it would do the judiciary any good and I don't think it
would do the Senate any good, because there will always be
payback.
You are going to have the presidency back one of these days
and we are going to have the Senate back one of these days. We
know how that goes. It depends on when you came to this game as
to what your views are because one has no historical
perspective. But everybody has got something to complain about
as far as the treatment of the prior batch, and that will
always be there to some extent. That is not the end of the
world, the fact that at the end of the term you do things a
little differently. That is resolved in the political process.
If you get too far out of line, it seems to me like you ought
to pay at the polls. It is not that.
It is that if we get into the notion that we are going to
radically change the way we are doing things now and the
perception is out there that, as I say, we are going to kind of
reprioritize things and reemphasize things in order to get the
result we want, I am afraid it is going to further balkanize
us. One side remembers what was done to them in the 14th
century and the other side remembers what was done to them in
the 17th century, and they will never probably get over it.
So I am not saying that I am naive enough to think that
partisan considerations can, or even should be totally
eliminated from any process. I just hope that we resist the
temptation in this important matter to further divide ourselves
and lay further groundwork that if it gets too far out of hand
will be paid back. I know that we all share the same general
goal in that regard.
Again, I appreciate the opportunity to be heard.
Chairman Schumer. Well, thank you, Senator Thompson. Once
again, your remarks were really excellent. I know that you have
to get back to the floor. Can you stay for a few questions?
Senator Thompson. Well, if you have any, I will refer them
to Senator Simon.
Chairman Schumer. I have a few for both, but we will try to
make this part of it as quick as we can and get to our next
panel.
My question, I guess, to you, Senator--and I will just ask
one to you and then go to Senator Simon--you may have heard
Senator Simon's testimony sort of was consonant with yours in
one sense. To avoid this kind of nasty process which we all
think is awful--I called it before you came in ``gotcha''
politics where everything is sort of under the table and then
you look for something they did wrong way back when, and that
is the demeaning part of the process, when we really want to
talk about other things. You end up with a real problem.
One of the things Senator Simon suggested is that at least
the ``advice'' part of the Constitution, where the President
was intended to consult with the Senate not just on district
nominees which happen, but on appellate nominees, and he
suggested, and others have too, Supreme Court nominees, be
revitalized, brushed up a little bit so that it is not just a
call an hour before saying we are nominating so-and-so, but
rather there be some consultation.
What do you think of that idea?
Senator Thompson. I think that is a practical consideration
that the President ought to decide for himself. I assume most
Presidents don't do that because of their view of
constitutional history and checks and balances. They do it
because they want to get their guy through. I think that it can
have a salutary effect, but I would think we would be intruding
on the office of the presidency if we in any way required or
expected him to pre-approve his nominations before he made
them. I think that how he comes to his conclusions hopefully
will be a found process and may or may not include what you
suggest, but it has got to be his process. Then, of course, he
bears the consequences of how it is received on the Hill.
Chairman Schumer. The suggestion, I think, is it might
avoid some of the acrimony that we have seen in judicial
appointments if there were a little more of that. I don't know
if it would happen, and obviously each President makes his own
decision about what ``advice'' means--they didn't just say
``consent,'' they said ``advice and consent''--but as a way of
bringing things more together, particularly, I would suppose,
when the Senate is of one party and the President is of
another, whichever way it is.
Senator Thompson. Well, I take your point. I would imagine
that the need to consult early on would probably be in inverse
proportion to the quality of the candidate.
Chairman Schumer. That is probably true.
Senator Thompson. If the President chooses the kind of
person that he ought to choose, that person ought to stand on
their own merits and ground. I would think that a President
would want as many in his pool to consider as he could possibly
have and maybe people he and his close friends do not know. I
think from that standpoint that any President would want a
broad array of qualified people.
There are so many wonderful judges and non-judges out there
in the country who have never been involved in politics and
never aspired to a high position like that who would be
wonderful choices. So to the extent that he could get some of
those from us, I think it would be a good idea. But, again,
that has got to be his choice to make.
Chairman Schumer. Let me ask Senator Simon just two
questions and then I will move on.
First, I thought your suggestion that there be some non-
lawyers on the Court is a very interesting one. Your knowledge
of history is probably better than mine. Who was the last non-
lawyer to serve on the Supreme Court? Was it Hugo Black?
Mr. Simon. I am not aware of any non-lawyer who served.
Senator Sessions. Hugo Black was from the University of
Alabama School of Law.
Chairman Schumer. Hugo Black was, so it wasn't Hugo Black.
Mr. Simon. Who?
Senator Sessions. Hugo Black.
Mr. Simon. I wasn't aware of that, frankly.
Senator Thompson. I am informed that there has never been a
non-lawyer on the Court.
Chairman Schumer. On the Supreme Court, OK; there you go.
The second question I had was this, Senator Simon: You had
mentioned that you thought for the Supreme Court--both of you
are not terribly far apart in saying that judicial philosophy
should be part of what every Senator considers, but not totally
dispositive. I think Senator Thompson said we ought to give
some consideration, not complete, to what the President does,
and I suppose, given the history of what you said you did in
the Senate, that is what you did.
If somebody was way over the line, you probably didn't
support him, but even if somebody like Justice Ginsburg, whom
you didn't agree with on everything--I don't have right in
front of me how you voted on it--you would defer to the
President's concerns. Senator Simon mentioned the same thing.
He said it ought to be more of a consideration for Supreme
Court Justices than for appellate court judges.
Last time, at our panel, we heard some discussion that
because so few cases now reach the Supreme Court and so much
final law is made at the court of appeals level--and that is
just because of the huge volume of the bench and the larger
number of cases that our Federal courts have taken over the
years--that even for particularly court of appeals, maybe not
district court judges, judicial philosophy ought to have some
consideration.
What do you think of that?
Mr. Simon. I don't reject the idea that it should have some
consideration if there is extreme philosophy, but the Supreme
Court really sets the standard for the appellate courts and the
district courts. Just as an example, you have the University of
Georgia decision on diversity, you have the University of
Michigan decision, you have the Hopwood decision in Texas.
Those three cases ultimately are going to be decided by the
United States Supreme Court and the appellate courts are going
to have to follow that.
One of the things Senator Thompson mentioned that I agree
with completely is when we talk about consultation or advice,
it should not be that we pre-approve someone, but the President
ought to be asking, Senator Kyl, do you have someone you think
would be a great United States Supreme Court Justice? Ask the
members of this body, and then if the President--and I
mentioned Woodrow Wilson's terrible appointment of James
McReynolds, but it was the same Woodrow Wilson who decided,
after consultation, to appoint Justice Brandeis, one of the
great giants in the history of the United States Supreme Court.
Because of Brandeis's fights with the utilities, he knew that
was going to be a controversial appointment. The President has
that right, to nominate but there ought to be consultation. It
is not an option. The Constitution says ``advice and consent.''
Chairman Schumer. Thank you. In deference to your schedule,
Senator Thompson, I will skip the rest of my questions and turn
to Senator Sessions.
Senator Sessions. I will just ask one question and then
yield my time to Senator Hatch.
Fred, you have tried cases before a lot of Federal judges,
and you have mentioned integrity and competence, and I think
you include in competence, judgment, the ability to analyze
complex case law to render a decision in court or after
contemplation effectively.
Based on that experience, does it matter to you whether the
judge is a Republican or Democrat? Isn't it true that most of
the time, regardless of party, a good judge will hit the same
nail every time?
Senator Thompson. You mean after the appointment process?
[Laughter.]
Senator Sessions. After the appointment process.
Senator Thompson. Honestly, no. I can't think of a time
when I ever had a case where it was relevant or it was in any
way remotely decided, I thought, on that basis.
Senator Sessions. Whether they were liberal or conservative
before they hit the bench?
Senator Thompson. Exactly.
Senator Sessions. That is my experience.
Senator Thompson. Exactly. If they were good,
conscientious, hard-working, intellectually honest lawyers,
regardless who they represented or what not, they were that
kind of people on the bench. Every once in a while, their
judicial temperament would be lacking a bit, but that seems to
be a bipartisan trait.
Senator Sessions. They thought they were anointed rather
than appointed?
Senator Thompson. Exactly.
Senator Sessions. Senator Hatch?
Senator Hatch. Well, thank you for yielding to me.
Chairman Schumer. Senator Hatch is the Ranking Member of
the committee. We welcome you here today, and thank you very
much for your interest in this subject.
Senator Hatch. Thank you, Mr. Chairman.
Paul, we are glad to have you back.
Mr. Simon. Thank you.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. I remember all those years we served
together on this committee, and we appreciate your friendship
and the life that you have lived and I appreciate your
testimony here today.
In my 25 years in the Senate I have seen a lot, and thus I
have much to say on this important topic. I agree with Senator
Thompson, basically, what his remarks are. He has tried a lot
of cases in Federal court, and so have I. Unfortunately, I have
had the experience of having Federal court judges who used
partisan tactics in court, both in Pittsburgh and in Utah. But
they were aberrations, they were unique judges. Even though
each of them did some things that I thought were not proper,
the fact of the matter of the matter is they were great
characters in the law and I always showed great respect to both
of them.
What worries me is that some could argue that this hearing
appears to be part of a partisan strategy to change the
longstanding practice of this Committee and the Senate by
injecting partisanship into the judiciary, the branch designed
by the Founders to be insulated from the very kinds of
temporarily fashionable political ideas that some are now
trying to infuse into it.
I think we have some charts here. This Chart 1 is an
excerpt from a cartoon that recently appeared in Roll Call and
captures what appears to be the theme in what we have been
hearing in these recent hearings and what some are speculating
is the Democrats' plan. The Democrats' Capitol Improvement Plan
seems to be an effort to halt progress on judicial nominations
in the name of analyzing the ground rules for the judicial
confirmation process. That is what some think.
The New York Times reported on just such an effort being
launched at a retreat for Democratic Senators earlier this
year. Several liberal scholars reportedly instructed the
audience to ``change the ground rules'' of judicial nominations
in order to prevent the confirmation of judges who do not meet
certain litmus tests of currently vogue liberal politics.
This was the type of strategy the liberals employed after
the Democrats took control of the Senate in 1986, and the
result was the fiasco over Hon. Clarence Thomas, which has been
a stain on the reputation of this body ever since. As one
recent article reports, just a few years before the Thomas
confirmation hearing, however, the judiciary selection rules
had radically changed. Democrats captured the Senate in 1986,
in that election, and conspired with leftist legal gurus that
dramatically politicized the process. They used this slash-and-
burn manual when they could not defeat Thomas on the merits.
The place to begin the discussion of burdens in the
judicial nomination process, of course, is the Constitution.
The Constitution gives the President the power to appoint
judges. The most significant burden borne by a candidate for a
judgeship is to convince the President that he or she is the
best person for the job. Together with the clear constitutional
dictate, the modern method of screening judicial candidates is
one of the primary reasons that the Senate gives Presidents'
nominations great weight.
I have long maintained the view that a President's judicial
nominations are deserving of deference. Indeed, when I was
charged as Chairman of this Committee with leading the
evaluation of judicial nominees, I held steadfast to this view
during our consideration of one of President Clinton's most
liberal and controversial nominees--and I might say on a great
number of them--the Honorable Marsha Berzon, I will point out
just for the sake of the record, who was the former head of the
litigation section of the ACLU's San Francisco Chapter.
Here is what I said in July 1999 about the way we should
treat Judge Berzon's nomination: ``I have reservations
regarding the application of a different standard to any
nominee for the Ninth Circuit or the other circuit courts. In
my view, the Senate standard for confirming nominees to the
Federal bench derives directly from the Senate's advice and
consent power in Article II, section 2, of the Constitution.
This standard does not change from nominee to nominee. On the
one hand, we must carefully examine a nominee and conclude that
he or she is qualified to hold a life-tenured position in the
Federal judiciary. On the other hand, we must generally defer
to the President whom the people elected to fulfill the
constitutional duties of his office, including the selection of
the nominees to our Federal courts. Thus, I believe that this
Committee should focus on the qualifications of a nominee--
honesty, temperament, and the nominee's appreciation for the
proper constitutional role of the Article III judge. I believe
that both Republican and Democrat nominees who meet these high
standards should be confirmed.''
Now, these principles of our constitutional duty remain as
true today for President Bush's nominees as they were for
President Clinton's nominees. Any suggestion that a heightened
level of scrutiny is appropriate for this President's judicial
nominees because of the peculiarities of the 2000 Presidential
election, I think, is simply irresponsible.
There is no question, for example, that Senator Daschle is
the Majority Leader or that Senator Leahy is the Chairman of
this important committee. They are due all the respect and
deference that come with those positions, despite the fact that
they did not gain those positions in a landslide election, or
any election at all for that matter. So regardless of how much
you may disagree with President Bush, the fact remains that his
nominees should be judged by the same standard as the judicial
nominees of other Presidents.
I would like to put the rest of my remarks in the record at
this point, Mr. Chairman, and just make one last comment, and
that is that I believe that if we get to the point where we
start making the ultimate determination, one of politics or one
of viewpoint or one of ideology, then I guarantee you there is
going to be war on Capitol Hill from both sides. That is
something we want to avoid.
That is why we have Presidents and that is why they have
this great nomination power which, in my perception, is greater
than the confirmation power, although both are important and
exceptional powers. I believe when we start coming to the
conclusion that ideology should play the major role in
determining whether a person sits on the Supreme Court or any
other court in this country, then I think we will be on the way
downward to getting a very, very inferior judiciary.
My experience has been that you can't tell what a person is
going to be when they are up for their nomination. Many of them
have proven to be somewhat completely different from what the
President who chose them thought they would be. We all know the
old story about President Eisenhower, who said that I have only
made two mistakes in my whole presidency and they are both
sitting on the Supreme Court.
Well, whether that was a correct observation or not is kind
of irrelevant. The important thing is that we do our job to
look at these nominees and to determine who should sit on these
courts, and we do so in a fair and responsible way, giving
great deference to the President of the United States, whoever
he or she may be.
Thank you, Mr. Chairman.
[The prepared statement of Senator Hatch follows:]
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
I would like to thank Chairman Schumer for permitting me to say a
few words on the important question of who bears the burden in the
judicial nominations process.
During this subcommittee's last hearing on judicial nominations--
the one about the role of ideology--I expressed my hope that the
heightened focus on judicial nominations, engendered by the change in
control of the Senate, would prove to be unwarranted. I said that I was
optimistic that the new Democratic leadership would treat President
Bush and his judicial nominees fairly, and I still remain optimistic
about that.
The coming weeks will show whether my confidence is warranted or
misplaced. There are 40 judicial nominations pending before the
Committee. The history of the Judiciary Committee is that, during the
first year of a new presidential administration, we act by the end of
the year on all judicial nominations made before the August recess.
This means that the Committee has its work cut out for it: hearings and
mark-up votes on 40 judicial nominations before the session's end.
Achieving this goal would not only preserve the Committee's historical
record of fairness and diligence, but would also prove conclusively
that the Democrats mean what they say about fairness.
Some of President Bush's judicial nominations already have been
waiting for an unnecessarily long time. Of his first 11 nominations,
made approximately 118 days ago on May 9th, only one has had a hearing.
Nine of the other ten are completely ready to go: their paperwork is
complete, their FBI background checks are done, the blue slips are in,
and outside groups--including the ABA--have had ample time to comment.
We could be having a hearing right now on two or three of them.
Now, I am not suggesting that today's hearing on burdens is a
misallocation of the Committee's time and energy when we have so many
nominees and vacancies pending. There's nothing wrong with examining
our own process from time to time, if.done fairly and for the right
reasons. What worries me, however, is that we appear, and this hearing
appears, to be part of a partisan strategy to change the long-standing
practice of this Committee by injecting partisanship into the
judiciary--the branch designed by the Founders to be insulated from the
very kinds of temporarily fashionable political ideas that some are now
trying to infuse into it. This excerpt from a cartoon that recently
appeared in Roll Call captures what appears to be the theme in what we
have been hearing at these recent hearings, and what some are
speculating is the Democrats' plan. The Democrats' Capitol Improvement
Plan seems to be an effort to halt progress on judicial nominations in
the name of ``analyzing the ground rules'' for the confirmation
process.
The New York Times reported on just such an effort being launched
at a retreat for Democratic senators earlier this year. Several
professors, well-known not only for their scholarship but also for
their radically left-of-center political bias, reportedly instructed
the audience to ``change the ground rules'' of judicial nominations in
order to prevent the confirmation of judges who do not meet certain
litmus tests of currently vogue liberal politics. This was the type of
strategy the liberals employed after the Democrats took control of the
Senate in 1986, and the result was the fiasco over the Honorable
Clarence Thomas, which has been a stain on the reputation of this body
ever since. As one recent article reports:
``Just a few years before [the Thomas confirmation hearing],
however, the judicial selection rules had radically changed.
Democrats captured the Senate in the 1986 election and
conspired with leftist legal gurus such as Harvard law
professor Laurence Tribe to dramatically politicize the
process. They used this slash-and burn manual when they could
not defeat Thomas on the merits.''
For the sake of this body and our republic, I hope that my
colleagues in the Senate heed the advice of former Carter and Clinton
counsel Lloyd Cutler--and not the brilliant, yet ultraliberal activist,
Professor Tribe--and refrain from staging an encore performance of that
disastrously mis-scripted play.
On the narrower point of this hearing, I think the place to begin
the discussion of burdens in the judicial nominations process is the
Constitution. The Constitution gives the President the power to appoint
judges. The most significant burden born by a candidate for a judgeship
is to convince the President that he or she is the best person for the
job. In other words, the burdens of the judicial nominations process do
not begin when the Senate Judiciary Committee receives the official
nomination from the White House. Far from it. That one page
presidential document represents a nominee who has already passed a
rather extraordinary test. As administered in modern times, the
presidential judicial selection process consists of exhaustive
examinations not only of the ultimately successful nominees, but also,
typically, of at least a handful of other serious contenders for the
job. In conducting this research, lawyers in the White House and the
Department of Justice work closely with home-state Senators and
typically seek input from avariety of local lawyers, bar associations,
and interested citizens concerning potential candidates. In some
states, senators have established advisory committees who evaluate
potential candidates. The upshot of all this is: by the time a
nomination emerges from the White House, the nominee typically has
already met the extraordinary burden of convincing his or her local
colleagues, his or her senators, the Department of Justice, and the
President of the United States that he or she is the person most
suitable for the job. To make believe otherwise is simply a fantasy.
Together with the clear constitutional dictate, the modern method of
screening judicial candidates is one of the primary reasons that the
Senate gives presidents' nominations great weight.
This is a view that I have long maintained. Indeed, when I was
charged as Chairman of this Committee with leading the evaluation of
judicial nominees, I held steadfast to this view during our
consideration of one of President Clinton's most liberal and
controversial nominees, the Honorable Marsha Berzon, who was the former
head of the litigation section for the ACLU's San Francisco chapter.
Here's what I said in July 1999 about the way this Committee--and the
Senate--should treat Judge Berzon's nomination:
``I have reservations regarding the application of a different
standard to any nominee for the Ninth Circuit or the other
circuit courts. In my view, the Senate's standard for
confirming nominees to the federal bench derives directly from
the Senate's advice and consent power in Article II, section 2
of the Constitution. This standard does not change from nominee
to nominee. On the one hand, we must carefully examine a
nominee and conclude that he, or she, is qualified to hold a
life-tenured position in the federal judiciary. On the other
hand, we must generally defer to the President whom the people
elected to fulfill the constitutional duties of his office,
including the selection of nominees to our federal courts.
Thus, I believe that this Committee should focus on the
qualifications of a nominee: honesty, temperament, and the
nominee's appreciation for the proper constitutional role of an
Article II judge. I believe that both Republican and Democratic
nominees who meet these high standards should be confirmed.''
These principles of our constitutional duty remain as true today
for President Bush's nominees as they were for President Clinton's
nominees. I encourage partisans on both sides of the aisle to think
carefully about this before coming to a contrary view. None of us
Senators gets our first pick as president every time, but all of us
have chosen to take an oath to preserving our Constitution and the
balance of powers it established. And any suggestion that a heightened
level of scrutiny is appropriate for this President's judicial nominees
because of the peculiarities of the 2000 presidential election is
simply irresponsible. There is no question, for example, that Senator
Daschle is the Majority Leader or that Senator Leahy is Chairman of
this Committee. They are due all the respect and deference that come
with those positions, despite the fact that they did not gain those
positions in a landslide election, or any election at all, for that
matter. So, regardless of how much you may disagree with President
Bush, the fact remains that his nominees should be judged by the same
standard as the judicial nominees of other presidents.
On the specific question of the nominee's burden during the
confirmation process, my remarks regarding Judge Berzon's nomination
are once again reflective of the view I continue to hold today. I said,
``. . .[W]e must be careful not to assign a particular judicial
philosophy to a nominee who has taken controversial positions in the
very difficult role of advocate. Being an advocate in controversial and
challenging case[s] does not, in my view, automatically disqualify a
person from service on the federal bench. I must agree that an
extensive amount of such work may increase the level of scrutiny the
Committee should apply to a nominee. And perhaps such work may even
shift the burden to the nominee to demonstrate that he, or she,
understands and respects the proper role of a federal judge. However,
such work is not, and should not be, an insurmountable impediment to
Senate confirmation.''
These remarks reveal my comprehension of the intent of the Framers
of our Constitution and of longstanding Senate practice, that the
burden in the confirmation process shifts to the nominee under only
extraordinary circumstances. My distinguished former colleague, Senator
Paul Simon, who will testify before us today, appears to agree with me.
In his written testimony, he stated, ``[U]mess views expressed by a
lower court nominee-are extreme or there is evident lack of ability or
question about integrity, I believe the nominee should be approved.''
While I cannot wholeheartedly endorse this statement, since Senator
Simon did not define what he meant by extreme views, I do believe that
the good Senator and I share a similar understanding regarding the
deference due to a President's judicial selections.
Let me explain my concern about wholesale acceptance of the idea
that a nominee should be disqualified because of what some perceive as
extreme views. The source of my concern is that characterization of a
nominee as having extreme views may be a way of imposing an ideological
litmus test on the nominee: any nominee who disagrees with my
Democratic colleagues on various social issues will be labeled as an
extremist who is out of the mainstream and who should therefore not be
confirmed. But the Senate's responsibility does not include
establishing an ideological litmus test to gauge a candidate's fitness
based on his or her position on controversial issues. The hallmark of a
good jurist is one who does not allow personal opinion to affect
objective legal decision making. Thus, personal views should be
considered for the limited purpose of ensuring that they will not
interfere with the nominee's ability as a judge to follow the law
impartially and fairly.
Perhaps it is in recognition of just this--the principle of stare
decisis--that Senator Simon believes that judicial philosophy is an
appropriate matter of inquiry for only Supreme Court nominees, and not
lower court nominees. For the reasons I have articulated, I disagree
with the use of ideology as a basis for denying confirmation to a
Supreme Court nominee. But I do agree with the premise that lower court
nominees should be approved absent extraordinary circumstances, such as
proof of racial insensitivity. These are matters that strike at the
heart of a nominee's integrity and an understanding of the rights
granted to us by our Constitution, and reflect poorly on the ability to
apply the law fairly and impartially to the litigating parties. They
thus serve as fair grounds for disqualification. Absent such indicia of
a nominee's unfitness, once we have reviewed the nominee's
qualifications and found?that he or she has the intellectual capacity,
integrity, and temperament to fill the role of a federal judge, the
nominee should be confirmed.
This is the same view expressed by former Carter and Clinton White
House counsel Lloyd Cutler during this Subcommittee's last hearing on
the role of ideology in the judicial confirmation process. Quoting from
a report issued by a commission in which he participated, Mr. Cutler
stated,
``What is most important is the appointment of judges who are
learned in the law, who are conscientious in their work ethic, and who
possess what lawyers describe as `judicial temperament.' . . . The
Commission believes that it would be a tragic development if ideology
became an increasingly important consideration in the future. To make
ideology an issue in the confirmation process is to suggest that the
legal process is and should be a political one. That is not only wrong
as a matter of political science; it also serves to weaken public
confidence in the courts. Just as candidates should put aside their
partisan political views when appointed to the bench, so too should
they put aside ideology.''
I believe the President's power to nominate judges is an essential
part of the balance of powers. This is the reason that, despite many
ideological and political differences, the Judiciary Committee under
Republican leadership confirmed 377 of President Clinton's judicial
nominations. This number is essentially the same--only 5 fewer--than
the record number confirmed under President Reagan. If Republicans had
infused ideological litmus tests into the process--as some Democrats
are toying with doing now--those numbers would be dramatically
different.
So, Mr. Chairman, there is plenty to talk about here today, and
plenty of work yet to do on filling the 108 judicial vacancies. Thank
you again for allowing me the opportunity to speak.
Chairman Schumer. Thank you, Senator Hatch.
Now, let me call on Senator Durbin.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLNOIS
Senator Durbin. Thank you very much, Mr. Chairman, and
thank you for this hearing. I know this is the second of three,
and I think it is important.
I would take exception perhaps to some of the things that
have been said. I think it is important for us to put this
issue right out on the table and talk about it because I think
what you have done in calling this hearing is really you have
asked to be a lot more honest and truthful in how this process
really works.
There have been nominees in the past who did not pass some
ideological test and it wasn't heralded or reported. Those
nominees were usually relegated to a Judiciary Committee
purgatory where there was no hearing, no vote, no hope. They
were gone, and they would sit here usually for months and years
and finally give up the ghost, or someone else would decide to
move on.
I think it is important to bring this out in front of
everyone and discuss it, and I think that I would concede the
point that has been made by Senator Hatch and others that
sometimes you are surprised. Hugo Black was not supposed to
turn out to be a liberal. He surprised everybody. I think you
can find other stories on the other side politically of those
who turned out to be more conservative than anticipated. So
this isn't a precise science.
I have one specific question I would like to ask of the two
witnesses because they have been through a process that I
haven't been through, and that is the selection of a Supreme
Court Justice. If ideology is going to be an important
consideration, clearly you have to ask the right questions to
get answers to understand a person's philosophy.
Now, in the Clarence Thomas hearing you had a person who
had studied for the Catholic priesthood, but came before this
Committee and said he had never discussed Roe v. Wade or the
abortion issue to that point in his life. That strikes me as a
question which, if asked and answered the same way, might give
a lot of people pause as to whether or not you can just say I
have never really thought about an issue like the death
penalty. Do you think that is an important consideration, or
the abortion decisions?
How do you balance the need for someone who is seeking the
bench not to tip their hand and commit themselves on cases in
the future and yet be honest enough so that you understand what
their philosophy is on an important issue like a woman's right
to choose or privacy or the death penalty as you go into the
process?
Senator Simon?
Mr. Simon. I think a nominee can say, ``I will give you my
personal attitude, but this doesn't mean that is how I am going
to rule when I am on the United States Supreme Court.'' So
there is a certain amount of evasiveness that can occur without
having said ``I don't remember ever having discussed Roe v.
Wade.'' You know, that became kind of implausible to some of
us. So I think you can do that.
Now, it doesn't mean that you are not going to--well, an
example, Justice Scalia, whom I like personally, a very likable
person. Only one member of this Committee voted against him,
Senator DeConcini, who said he didn't answer our questions. All
the rest of us voted for him. I voted for him on the floor.
Frankly, if I were to redo my vote, I would vote against
Justice Scalia, not that I don't like him, but I don't think he
represents what I believe should be the philosophy of the
United States Supreme Court.
I think nominees can be candid. I think we have to be
careful how we ask questions. We can't ask, how would you rule
on reversing Roe v. Wade. I think, there, a nominee is going to
properly say ``I can't answer that question.'' But the general
parameters of where the nominee stands--I think we ought to
know that.
Senator Durbin. Senator Thompson, how would you reconcile
that?
Senator Thompson. Well, that is not easy. I haven't, as a
matter of fact, been here for a Supreme Court vote yet, but I
can see how it is going to be difficult. I think that one needs
to look at what the purpose of the inquiry is, what it is
about.
Clearly, on issues of competence, integrity, understanding
the law, if the person has been on the bench before, the
decisions they have made, whether or not they stand up to
analysis and scrutiny--I think those are all valid
considerations.
If, in fact, the purpose is to either get the person in a
position where they refuse to answer because they feel like the
question is inappropriate and thereby raise the DeConcini
problem, or if the purpose is to pin a person down and to try
to kind of get a commitment--surely, nobody thinks that a
Justice ought to talk about how they will on a particular case,
but if it is to try to pin them down as to how they will rule
in a particular kind of case, I think that is very
inappropriate, also.
It is somewhat of a fool's errand, too, because cases are
based on the facts of an individual case, the case in
controversy. You will never be able to present a case that
hasn't happened yet as a hypothetical. You will never be able
to foresee the kinds of things that will come up before the
judge. There is an area of propriety there that I think we are
free to explore in terms of their judicial integrity.
But to take one area of the law and say this is the most
important one and you have got to pass a litmus test on this,
or another area of the law and say that you have got to make a
certain kind of commitment on that, when in all instances what
they need to do first and foremost, and I think it so outweighs
everything else, is approach it with a sense of integrity,
intellectual honesty, an astute understanding of the law, and I
think for the Supreme Court hopefully be a person of wisdom--
all the rest of this stuff is for us; it is not them. It is not
about them. It is about us and what we can do to them or for
them. It doesn't make for better judges, it doesn't make for
more enlightenment as to what kind of judge they will be. So I
think we ought to be careful when we get past that.
Mr. Simon. Could I give a 60-second response?
Senator Durbin. Please.
Mr. Simon. When Judge Bork was before us, I was inclined to
be against him, but wasn't sure, and I asked him about the
Ninth Amendment of the Constitution. Madison originally had 12
amendments to the Bill of Rights and Alexander Hamilton wrote
to him and said, if you spell out these rights, people will say
these are the only rights that people have. So the Ninth
Amendment was added, saying other rights not spelled out here
are reserved to the people.
When I asked Judge Bork about that, he said, well, I think
they probably meant other rights are reserved to the States.
Well, you know, that is a dramatically different kind of a
thing, and that indicated to me a philosophy. I think those
kinds of questions are proper.
Chairman Schumer. Did anyone object to that question to you
afterwards or in any way?
Mr. Simon. I don't recall that anyone paid any attention,
Mr. Chairman.
[Laughter.]
Mr. Simon. As they usually didn't to my questions.
Chairman Schumer. Well, that is what we are trying to do
here, is figure out the parameters of what is appropriate and
what isn't appropriate, and have it be above board. I am sorry
if anybody takes umbrage at that. I think it is a fair and
legitimate inquiry.
Senator Thurmond, a member of the subcommittee.
STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Thurmond. Mr. Chairman, the confirmation of Federal
judges is one of the greatest responsibilities of this
committee. We should consider whether the individual is
qualified and whether he or she understands a judge's limited
role in our constitutional system.
However, in my view, the President is entitled to some
deference in the choices he makes for the Federal courts. I do
not believe a nominee must somehow prove to the Committee that
they deserve to be confirmed. Creating this special burden on
the nominees is not the tradition of this committee. In fact,
during most of the Senate's history judicial candidates did not
even appear before the committee. The burden should not shift
based on which party is in power in the White House or in the
Senate at any particular time. Our constitutional
responsibilities should remain consistent, regardless of
politics.
Thank you.
Chairman Schumer. Thank you, Senator Thurmond.
We have two members of the full Committee who are not
members of the Subcommittee and I would be happy to give them a
brief moment to just--
Senator Sessions. Senator Thurmond hasn't used all his
time.
Chairman Schumer. Did you have any questions, Senator
Thurmond?
Senator Sessions. Would he yield that to the others? I have
had my questions.
Chairman Schumer. I don't mind Senator McConnell and
Senator Kyl, as long as they are brief, asking questions to the
witnesses.
STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE
STATE OF KENTUCKY
Senator McConnell. Well, Mr. Chairman, I don't know what
``brief'' means. I am certainly not planning on filibustering
and I appreciate the opportunity to make some observations.
First, I want to welcome our old friend, Paul Simon, back.
We were sworn into the Senate on the same day and it is good to
see you again, Paul.
Mr. Simon. Thank you.
Senator McConnell. As one of the most conservative members
of the Senate, and some would argue one of the least
bipartisan, I voted for Justice Breyer, Justice Ginsburg, and
almost all of the 377 judges that President Clinton nominated.
Like Senator Thompson related his experience in Tennessee,
I returned every single blue slip on a Kentucky nomination, did
not expect Senator Clinton or Senator Ford to call me and ask
my advice on who they should select because, after all, they
had won the election. Certainly, I didn't try to dictate the
selection of judges in the Sixth Circuit from Kentucky. So I
must say, Mr. Chairman, I am somewhat disturbed by these
hearings and where they appear to be leading.
We have had until recently what could best be called the
Biden standard which several Senators have outlined, which was
the same as the Hatch standard, which was basically the
standard that Senator Thompson outlined which is one of
competency and approach to handling issues. That has prevailed,
I think, for most of the time since we have been here and
really, for that matter, most of the time since the Senate has
been confirming nominations to the Supreme Court.
Curiously, when we were confirming all of the judges that
President Clinton nominated, there were no Democratic calls for
placing the burden on Democratic nominees to prove their
fitness for the bench. But after President George W. Bush was
sworn into office and began nominating people to the Federal
bench, we suddenly heard calls for changing the standard by
which we consider judicial nominees.
Specifically, after President Bush informed the ABA that it
would evaluate judicial candidates after their nomination,
there was a letter sent by some of our colleagues to the
President which protested. They wrote, ``We firmly believe that
ending the long-established practice of ABA review would dilute
the quality of the Federal bench. ABA evaluation has been the
`gold standard' by which judicial candidates are judged.''
So applying the gold standard, the ABA ratings on President
Bush's early nominations have come out: Miguel Estrada, well-
qualified; Jeffrey Sutton, majority qualified, minority well-
qualified; James Gritzner, well-qualified; Carolyn Kuhl, well-
qualified; Charles Pickering, well-qualified; Barrington
Parker, well-qualified; and Dennis Shedd, well-qualified.
Indeed, to date, all of President Bush's nominees have met the
gold standard, the ABA standard. Yet, none have been acted
upon.
Once it became apparent that President Bush's judicial
nominees were going to pass the ABA gold standard with flying
colors, some on the left again changed the test that nominees
would have to satisfy. This time, many of our colleagues across
the aisle pronounced that the President's judicial nominees
would have to satisfy some sort of ideological litmus test,
with only those nominees who were in the ``mainstream'' being
able to serve on the Federal bench.
So we have a new standard, the ``mainstream.'' Some
consider that the editorial opinion of the New York Times as
mainstream. For some of us, mainstream values are more likely
to be found in Ohio or Tennessee or Kentucky or Arizona than on
the editorial page of the New York Times.
To no great surprise of members on this side of the aisle,
Laurence Tribe recently testified that Republican nominees
should be subjected to higher scrutiny and should bear the
burden of proving their worthiness to be confirmed. So much for
any shred of deference to the President's sole constitutional
power to nominate. We would now have 50 or 51 co-presidents who
would change their constitutional role from ``advice and
consent'' to ``demand and dictate,'' where they essentially get
to renominate each and every nominee to the Federal bench.
After the Biden standard for the Democrats, the very
similar Hatch standard, and the recently minted gold standard,
we have yet another standard. This could best be described as
the ``double standard'' for Republican nominees. Now, I say
this double standard was no great surprise to us on this side
of the aisle because we had seen some on the left advocate it
before when discussing Republican nominees.
In 1990, when arch-conservative David Souter testified
before this committee, some of our Democratic colleagues stated
that he would have to bear the burden of proving his
worthiness. In 1987, when Professor Tribe testified against
Robert Bork, he also argued that the burden should be on the
nominee. So I guess it is only natural to have a double
standard now that we have Republican nominees again.
Well, if we Republicans adopted that standard for President
Clinton's nominees, I guarantee you we would have confirmed far
fewer than the 377 that we confirmed, and I certainly would
have liked to have had a lot of my votes back. In the end, we
should use the same standard for Democratic and Republican
nominees. If they are men and women of integrity, are
qualified, have a judicial temperament and will follow the
Constitution and statutes as they are written and intended, we
ought to confirm them.
Finally, there are calls for ideological diversity. The use
of litmus tests which this approach necessarily entails are
really thinly veiled demands for blocking judicial nominees in
the name of political diversity, not racial diversity, mind
you, but political diversity.
The Constitution already provides for such diversity by
empowering the President, not us, to nominate judges to the
Federal bench. Over time, Presidents from different political
parties will nominate members of their own party to the bench.
This will result in political, and hence ideological diversity
on the Federal bench.
The current composition of the Federal bench provides an
example of this. With respect to active-status Federal district
and appellate court judges, there are currently 400 Democratic-
appointed judges and about 330 Republican-appointed judges.
This translates into 55 percent of the judges being Democratic,
while only 45 percent are Republican. Let me just suggest that
after Roosevelt and Truman, I expect there were darn few
Republican judges on the Federal courts of this country, and a
good deal of political diversity would have been required at
that point to even it out.
Mr. Chairman, I think you get my drift. These are hearings
that are heading us in entirely the wrong direction. As Senator
Thompson pointed out a while ago, 1 day you will have the White
House again and we will have the Senate again, and we are
drifting off in a direction that will make it impossible to
confirm judges to the Federal courts. I think that is not what
the Constitution expected. I certainly don't think it is what
the American people want us to do.
Thank you very much.
[The prepared statement of Senator McConnell follows:]
Statement of Hon. Mitch McConnell, a U.S. Senator from the State of
Kentucky
The advice and consent powers of the Senate are a very important
part of every Senator's duty and should be taken very seriously.
Together with the recent hearing on ideology, this hearing and future
hearings will shed light on the role that the Senate should play in the
appointment process. Two key issues about this role which have been
raised are the standard the Senate should use to determine whether a
judicial nominee should be confirmed and the so-called need for
political diversity on the bench.
The Biden Standard
In 1994, Senator Biden enunciated a standard for use in evaluating
President Clinton's nominees. In speaking on the nomination of Rosemary
Barkett, Senator Biden stated:
``I. . .want to make clear a standard which I have adopted. . .
.It is a three-pronged standard:
``First, that the nominee has the capacity, competence, and
temperament to be on the court of appeals or trial court.
``Second, is the nominee of good character and free of conflict
of interest?
``Third, would the nominee faithfully apply the Constitution
and the precedents of the Supreme Court?. . .Using this test
through 12 years of Republican nominees, I voted to confirm
numerous lower court judges who were far more conservative than
I am.'' \1\
\1\ Statement of Senator Joseph Biden, Jr., Nomination of Rosemary
Barkett, of Florida, to be U.S. Circuit Judge for the Eleventh Circuit.
140 Cong. Rec. S4281, 4282 (April 14, 1994).
---------------------------------------------------------------------------
The Hatch Standard
The Republicans agreed with this approach for Democratic nominees
and, in fact, adopted it in large part when Senator Hatch assumed
Chairmanship of the Judiciary Committee in 1995. Speaking of Marsha
Berzon, former head of the litigation team of the ACLU of northern
California, Chairman Hatch stated:
``[W]e must generally defer to the President whom the people
elected to fulfill the constitutional duties of his office,
including the selection of nominees to our federal courts.
``Thus, I believe that this Committee should focus on the
qualification of a nominee: honesty, competence, temperament,
and the nominee's appreciation for the proper constitutional
role of an Article III judge. I believe that both Republican
and Democratic nominees who meet these high standards should be
confirmed.'' \2\
---------------------------------------------------------------------------
\2\ Statement of Senator Orrin Hatch on the Nomination of Marsha
Berzon, of California to the United States Court of Appeals for the
Ninth Circuit (July 1, 1999).
---------------------------------------------------------------------------
We heard no objections from our colleagues across the aisle to
these very similar standards that were used to confirm 377 Democrat
nominees, a number only five shy of President Reagan's all-time record.
Curiously, when we were confirming all these Clinton judges, there were
no Democrat calls for placing the burden on Democrat nominees to prove
their fitness to serve on the federal bench.
The ``Gold'' Standard
But after President George W. Bush was sworn into office and began
nominating people to the federal bench, we suddenly heard calls for
changing the standard by which we consider judicial nominees.
Specifically, after President Bush informed the ABA that it would
evaluate judicial candidates after their nomination, and not before,
two of my Democratic colleagues on this Committee, in a March 16, 2001
letter to President Bush, protested. They wrote: ``We firmly believe
that ending the long-established practice of ABA review would dilute
the quality of the federal bench. . . .ABA evaluation has been the gold
standard by which judicial candidates are judged.'' \3\
---------------------------------------------------------------------------
\3\ Senators Patrick J. Leahy and Charles Schumer, Letter to
President George W. Bush (March 16, 2001).
---------------------------------------------------------------------------
Well, after this March 16th letter, the ABA ratings for
President Bush's nominees began to come in.
Miguel Estrada--``Well Qualified'';
Jeff Sutton--``Majority Qualified/Minority Well
Qualified'';
James E. Gritzner--``Well Qualified'';
1Carolyn Barbara Kuhl--``Well Qualified'';
Charles W. Pickering, Sr.--``Well Qualified'';
Barrington D. Parker--``Well Qualified'';
Dennis W. Shedd--``Well Qualified''
I could go on and on with the list of nominees who have met Senator
Schumer and Leahy's ABA ``Gold Standard.'' Indeed, to date, all of
President Bush's nominees have met this standard, with every single
nominee having received a rating of ``majority qualified'' or better.
And, quite frankly, given the group of accomplished jurists, academics,
and practitioners that President Bush has put together, I would have
been quite surprised if the ABA had not given them such high marks.
The Double Standard
Once it became apparent that President Bush's judicial nominees
were going to pass the ABA Gold Standard with flying colors, some on
the Left again changed the test that nominees would have to satisfy.
This time, many of our colleagues across the aisle pronounced that the
President's judicial nominees would have to satisfy some sort of
ideological litmus test, with only those nominees who were ``in the
mainstream'' being able to serve on the federal bench. And it will be
these same Members, along with the always-reliable editorial board of
the New York Times, who will be the selfappointed arbiters of
``mainstream values.'' I suspect, however, that their pronouncements on
what views lie within the mainstream will be quite different from the
views of the average citizen in Kentucky and Kansas and Ohio--places in
the ``heartland'' of America which typify ``mainstream'' values. In
short, this is where the real mainstream lies.
Now, at no great surprise to Members on this side of the aisle,
Laurence Tribe recently testified that Republican nominees should bear
the burden of proving their worthiness to be confirmed.\4\ So much for
any shred of deference to the President's sole constitutional power to
nominate. We would now have 50 or 51 co-Presidents who would change
their constitutional role from ``advise and consent'' into ``demand and
dictate,'' where they essentially get to re-nominate each and every
nominee to the federal bench. After the Biden standard for Democrats,
the very similar
---------------------------------------------------------------------------
\4\ Judicial Confirmations 2001: Hearings Before the Subcomm. on
Administrative Oversight and the Courts Comm. on the Judiciary,
107th Cong. --(2001) (testimony of Prof. Laurence Tribe at
*13) (``[T]he burden must . . . be on the nominee. That burden must be
to persuade each Senator . . . that the nominee's experience, writings,
speeches, decisions, and actions affirmatively demonstrate not only the
exceptional intellect and wisdom and integrity that greatness as a
judge demands but also the understanding of and commitment to those
constitutional rights and values and ideals that the Senate regards as
important for the republic to uphold. '').
---------------------------------------------------------------------------
Hatch standard, and the recently minted ABA Gold Standard, I dub
this new test the ``Double Standard'' for Republican nominees.
Now, I say this ``double standard'' was no great surprise to us on
this side of the aisle because we had seen some on the left advocate it
before when discussing Republican nominees. In 1990, when ``arch-
conservative'' David Souter testified before this Committee, some of
our Democrat colleagues stated that he would have to bear the burden of
proving his worthiness.\5\ And in 1987, when Professor Tribe testified
against Robert Bork, he also argued that the burden should be on the
nominee.\6\ So, I guess it's only natural to have a ``double standard''
now that we have Republican nominees again.
---------------------------------------------------------------------------
\5\ 136 Cong. Rec. S14343 (1990) (statement of Sen. Biden) (``I
believe the burden of proof is on the nominee. Just as the burden is on
the President to convince the American people to vote for him to be
President, is on every Senator and Congress person to convince the
people in their State to vote for them to have this power, it is also a
burden that is on the nominee to be given such awesome power for a
lifetime. Any future nominee who fails to meet that burden--and I
emphasize again how close I believe this nominee came to that line--
will be vigorously opposed, at least by this Senator. '').
\6\ Nomination of Robert H. Bork to be Association Justice of the
Supreme Court of the United States, Hearings Before the Comm. On the
Judiciary, 1001 Cong. 1273-72 (1987) (testimony of Prof. Laurence
Tribe) (``It is crucial to remember that Judge Bork is not on trial
before the Senate; at stake is not simply his future but the
Constitution's future. Thus the Senate's advice and consent function
counsels placing the burden of proof on those who urge confirmation.
Theirs should be the burden of dispelling the considerable doubts this
nomination has raised, both before the nominee testified and in light
of his testimony.'').
---------------------------------------------------------------------------
Well, if we Republicans had adopted that same standard for
President Clinton's nominees, I guarantee you we would have confirmed
far fewer than 377 of his nominees. In the end, we should use the same
standard for Democrat and Republican nominees: If they are men and
women of integrity, are qualified, have a judicial temperament, and
will follow the Constitution and statutes as they are written and
intended, we should confirm them.
Political Diversity And Balance
Finally, calls for ``ideological diversity"-and the use of litmus
tests which this approach necessarily entails-are really thinly-veiled
demands for blocking judicial nominees in the name of political
diversity-not racial diversity, mind you, but political diversity.
Well, the Constitution already provides for such diversity by
empowering the President, not us, to nominate judges to the federal
bench. Over time, Presidents from different political parties will
nominate members of their own party to the bench. This will result in
political, and hence ideological, diversity on the federal bench.
The current composition of the federal bench provides an example of
this. With respect to active-status federal district and appellate
court judges, there are about 400 Democrat-appointed judges and about
330 Republican-appointed judges. That translates into 55% of the judges
being Democrat appointees, while only 45% are Republican appointees.
Moreover, most of the judges who will be retiring and taking senior
status over the next 4 years will be those who were appointed by
Presidents Reagan and George H.W. Bush ten, fifteen, and even twenty
years ago; not those whom President Clinton appointed in the last few
years.
And this statistic shows something else. Now, I don't subscribe to
the premise that there is some sort of constitutional requirement of
``equivalency by party'' with respect to federal judges. As an aside,
after five consecutive terms of FDR and Harry Truman, there is no way
there was anything close to ``political equivalency'' on the federal
bench when these men were in office. But for those of my Democrat
colleagues who believe there is such a rule, they do not have standing
to raise this issue, at least not until a whole lot more Republican
judges are confirmed. About 70, by my count. Right now, we have a grand
total of four, inclusive of Roger Gregory. It is apparent, then, we
have a lot of work to do before this diversity argument is even ripe
for consideration.
Thank you.
Chairman Schumer. Thank you, Senator McConnell.
Senator Kyl, also, welcome, a member of the full committee.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman. I welcome your
courtesy in welcoming those of us who are on the full
committee, but not the subcommittee, to this hearing. I shall
be very brief, in return, and not really ask witnesses
questions, but I would like to do two things.
One, I welcome our old friend, Paul Simon, back. There
isn't anyone with whom I have served in the Senate on the
Democratic side of the aisle for whom I have had more respect.
I miss your service here, Senator Simon.
I appreciated the part of what I heard both of you say and
the second thing I want to do is just to express a caution and
a concern. All of us are saying this in one way or another, but
part of the problem with this hearing, I respectfully suggest,
Mr. Chairman, is that it is in the context of news stories
which reported that at a conference of Democrats, erudite law
professors suggested that the way that Democrats in the Senate
could kill President Bush's nominees was to change the ground
rules.
What we have seen is an attempt, through op eds, through
speeches on the floor, and now through hearings here in the
Senate, to make a case that two specific traditions should be
changed. The first is that it should become quite appropriate
to consider the political philosophy of nominees as a
prerequisite to determination of their qualifications, and the
second is to, in effect, change the burden of proof, that the
burden now becomes that of the candidate.
It seems to me that when the President, through the use of
the ABA and his vetting process and the FBI and the
consultation that, I agree with Senator Simon, should take
place--he has, in effect, presented the case-in-chief, to
analogize to a case. The burden of going forward with the
evidence is then on the Senate. If there is a matter that
through our investigation we believe disqualifies a candidate,
we have the burden of laying that out in our questions to the
witness and of pursuing that in the various ways that we have.
But it would be inappropriate to analogize to carrying the
burden of a case.
So that troubles me with this particular hearing. I regret
that because I am going to have to be on the floor on the
business that is pending on the floor, I won't have an
opportunity to hear the witnesses speak to that issue, but I
have reviewed some of their testimony in that regard.
I will just close with this point, and if Senator Simon
wishes to comment on it, I would be very pleased to get your
remarks. One of the most interesting things in the first
hearing was Lloyd Cutler's citation, in fact quotation of a
question always asked by this Committee of every nominee, the
effect of which is, has anybody asked you how you would rule on
a specific case or a specific issue.
The whole point is anybody that has done that has crossed
the line. We don't want nominees who have promised that they
would rule a certain way on a particular case. Yet, that is
inevitably where this new line of thinking takes us, to a query
of the nominee, how that nominee would rule in a particular
case, in order to determine judicial philosophy and in order to
have that candidate carry his or her burden of proof. That, I
submit, is a very dangerous path.
I think we should retain the question that says has anybody
asked you how you would rule on a particular case, and we
should be very careful, as Senator Simon said, about how we
word any questions to get to the qualifications of the nominee
to be very clear that we are not trying to determine how the
nominee would rule on a particular set of facts in a particular
case. I think that would lead us down a very dangerous path.
If you wish to comment on that, fine, but I have made my
point. Again, Mr. Chairman, I appreciate your courtesy in
allowing us to be here.
Chairman Schumer. Thank you, Senator.
Mr. Simon. I would make just one general observation, and
that is for our free system to function we have to exercise
self-restraint. When Richard Nixon lost to John F. Kennedy, he
didn't say let's get people out in the streets and protest. He
very reluctantly said congratulations. Hubert Humphrey and
Richard Nixon, the reverse. So self-restraint has to be used by
this body, by the courts, and by everyone in a free system if
the free system is to function effectively.
The public should not perceive that we are doing things for
partisan purposes. Now, we are all partisans and we are proud
to be partisans, but the national interest is what has to
prevail. Here, we have to ask the question how do we build a
court system that is really a solid, good court system that
will give justice to our people. That is the bottom line.
Thanks for hearing me.
Chairman Schumer. Well, thank you, Senator, and I just want
to echo what you said. I would think that what we are talking
about here would apply no matter who was President, no matter
who controls the Senate. I don't think there has been much of a
change.
I am compelled to just add a few things to the record
before you go because--
Senator Kyl. Mr. Chairman, might I submit a statement for
the record?
Chairman Schumer. Please. Without objection.
So many of my colleagues on the other side said this is a
dramatic change. I don't think it is a change at all. I think
we are just taking something that was under the table and
bringing it above.
I would just like to quote, for instance, Senator Lott, on
the floor, last year. He said about two judges up for court of
appeals, ``I have no doubt that these two judges are fine
lawyers and technically competent,'' meeting the standards that
we talked about before. But he went on to say, ``It is an
extremely liberal circuit. It will get worse with these two
nominees. This is one of the reasons I have been hesitant to
bring them up.'' This, of course, was when he was Majority
Leader.
Let me read some quotes, without names, from some of my
colleagues a few years back. It is not a change; we are just
trying to do this in a more civil and above-board way. One of
my colleagues said, ``We need to send the President of the
United States a message that those members of this body in
helping select nominees cannot in good conscience continue to
accept nominations to a circuit who are not going to make it
better and bring it back into the mainstream.'' That colleague
went to the floor and argued that the proposed nominee was
``too liberal.'' That is ideology. Many colleagues voted with
him in that regard.
Another one: ``The general judicial philosophies to the
Federal bench reflect the judicial philosophy of the person
occupying the White House, the Oval Office. And differences in
judicial philosophy have real consequences for the safety of
Americans in their streets, homes and workplaces.'' And they
went on to say that it should be the Senate that should invoke
that different judicial philosophy to block the President.
One more: ``Whatever the case''--this was on burden; this
was because a nominee was regarded philosophically as out of
the mainstream by this Republic Senator--``Whatever the case,
the Senate will need to be especially sensitive to this problem
when it provides advice and consent on nominations to fill
court vacancies.'' The nominees will need to demonstrate
exceptional ability and objectivity, he went on to say, to
overcome that their philosophy was, in his regard, out of the
mainstream. Those are from some colleagues, including some of
my colleagues who are sitting here today.
This is not an attempt to be a partisan hearing. Ideology
was invoked before. Ideology, judicial philosophy, is
legitimate to be invoked today. But because, in my judgment at
least, and the judgment of many Democrats and Republicans, we
have been reluctant to talk about it, we talk about delay, we
talk about the balance of circuit, we talk about something in
their past. I believe it is a legitimate inquiry, and so did
many members of this committee, some of whom are sitting here
today.
Senator Hatch. Mr. Chairman?
Chairman Schumer. I would just say I would like to continue
this hearing in a way of general inquiry, in a way to figure
out how we can do best here to provide the best judges, not
with litmus tests, not with the New York Times editorial page
or the Louisville Courier editorial page, which has a similar
philosophy, as I understand it, making--
Senator McConnell. There is no difference.
[Laughter.]
Chairman Schumer.--the determination, but with each of us
making the determination and bringing a little more respect to
the process than we have. I am not blaming one party or the
other for doing it. What we are trying to do is lay out some
ground rules that we can debate whether they are appropriate,
but at least we are debating them instead of taking it out on
individual nominees when they come forward.
Senator Hatch. Mr. Chairman, I really appreciate those
remarks and I believe that is your purpose in holding these
hearings. I hope that is your purpose and I believe it to be.
And you have told me that it is, so I appreciate those remarks.
But let's understand one thing. There have always been some
on both sides who have tried to bring ideology into these
matters. One of my most difficult 6 years was the last 6 years
as Chairman of this committee, where we put through 377 of
President Clinton's judgeship nominees, 5 less than the all-
time record, which was Reagan, who had a Republican Senate for
those 6 years. President Clinton had a Republican Senate for 6
years, but it was the opposite party. And, yes, there were some
who honestly felt that ideology played a role in some of these
things, but they were beaten because we were able to pass
virtually every one of those Clinton nominees.
Now, I think the point I am making is this: anybody who
says, and that includes some of our law professors here today,
words to the effect that political ideology ought to determine
whether a person sits on the Supreme Court or on any court in
this country, if they are otherwise qualified, I think that
ideology is a very dangerous ideology to be preaching because
if we ever get to a point where liberals vote against
conservatives and conservatives vote against liberals in a
knee-jerk fashion because we differ in philosophy and ignore
the fact that the President has this power of nomination and
ignore the credentials of the people who are nominated, then I
think we are going to have a rough time getting really
qualified people to serve in the Federal courts anywhere in
this country.
It is tough enough as it is, as Senator Thompson has
pointed out, with the pay scale the way it is where law review
graduates make more money than Supreme Court Justices to start.
Now, that is what I am concerned about, and I am concerned
about some of our ideological law professors in this society
who actually believe it, who don't like the fact that Clarence
Thomas made it or helped to defeat Robert Bork, or you can
mention any number of others who had difficulty.
I remember when Justice Souter was up how many on the left
were decrying the fact that this unknown person from New
Hampshire should sit on the Court because he was going to be a
conservative. Well, he has been proven anything but a
conservative on the Court, an honorable, decent man who is
doing the best job he can.
So I am concerned about it because I don't want to see this
devolve into a Democrat/Republican ideological litmus on a
political basis in any way, shape or form, because if it does,
then I think that this country which has been saved by the
Federal judiciary for many, many years is going to have
difficulties it never dreamed or never imagined.
So I personally want to say I appreciate you holding these
hearings and elevating this discussion to the point of should
we play politics, should politics play a role, should politics
be determinant and all of these other collateral issues that
pertain thereto. I think that you are doing a service, but I am
going to fight very hard to make sure that whoever is President
has the respect for that power called the nomination power from
this body as long as I am here.
So I just hope that I have made myself clear on this.
Chairman Schumer. I thank the Senator. The only response I
would make before we dismiss our good friend is this: I think
what has made it hard to get judges to go to the court is not a
discussion of judicial philosophy. They do that everyday. They
are happy to answer questions about it. I think both parties
have done it.
I think what has made it hard is when we deny that that is
the case and instead we go deep into their past and try to find
little ``gotcha'' things that have made them look bad before
their families and everybody else. Politics is one thing,
judicial philosophy is another.
Senator Hatch. That is right.
Chairman Schumer. I certainly agree with Senator Thompson.
I don't care if the person is a Republican or a Democrat. I do
care if I think their philosophy, as have most members of this
committee, is so far from the mainstream that they can't well
represent the American people. That is the question here and it
is an ongoing discussion. I thank Senator Simon for coming and
I will call forward the second panel.
Mr. Simon. I thank you and I thank the other members of the
subcommittee.
Chairman Schumer. Senator, thank you.
Senator Hatch. Nice to see you, Paul.
Senator Sessions. Mr. Chairman, as they gather, with regard
to your discussion about the Ninth Circuit, our concern was
that they were outside the judicial mainstream based on the
fact that the Supreme Court had, I believe, the previous year
reversed them 27 out of 28 times, and another year 13 out of
16. They had by far the highest reversal rate in the country.
Senator Hatch took the view that that shouldn't make any
difference; each nominee to that circuit should be given the
same deference as any other circuit. I concluded that it was
important to try to make sure that the nominees, and send the
message to the President that the nominees should be faithful
to the judicial mainstream. In fact, the New York Times wrote
that a majority of the Supreme Court considered the Ninth
Circuit to be a rogue circuit. So it was a real matter of
interest at the time. Basically, those nominees, though, were
all confirmed.
Chairman Schumer. And I would just say to Senator Sessions
that is why we are having these hearings to clear up the
difference between Senator Hatch and himself, but to really
discuss that very legitimate issue.
Now, let me call our next panel of witnesses here. We have
a very distinguished and broadly based panel, with widely
different philosophies, and we expect you to talk about those
philosophies. We don't expect you not to. I ask them to come
forward. I think what I will do is I will introduce each one as
they speak.
Our first witness is Professor Sanford Levinson. He is an
internationally renowned constitutional law scholar. He
received his bachelor's degree from Duke University, a Ph.D.
from Harvard, and a law degree from Stanford, covering almost
every region of the country. He currently holds chairs in law
and government at the University of Texas, and held posts at
Harvard and New York University Schools of Law. He is the
author of numerous books, textbooks and articles. He is
coauthor of the popular casebook Processes of Constitutional
Decisionmaking. He is also the coauthor, with Yale Law School
Professor Jack Balkin, of a forthcoming article in the
University of Virginia Law Review entitled ``Understanding the
Constitutional Revolution,'' which covers some of the territory
we intend to address here.
Professor Levinson, your entire statement will be read into
the record. We are going to have a question period, and so if
you could limit your testimony to the 5-minute clock--we will
ask all witnesses to do that so we can finish at a reasonable
hour--we would appreciate it.
STATEMENT OF SANFORD LEVINSON, PROFESSOR OF LAW, UNIVERSITY OF
TEXAS LAW SCHOOL, AUSTIN, TEXAS
Mr. Levinson. Gladly. I do want to take 15 seconds to say
how honored I am to be invited here today, and I would like to
read just the first paragraph of my prepared statement and then
discuss it for the 5 minutes.
I begin with two quotations from members of the Supreme
Court itself. The first was written by Felix Frankfurter some
70 years ago, and I quote, ``Members of the Court are
frequently admonished by their associates not to read their
economic and social views into the neutral language of the
Constitution. But the process of constitutional
interpretation''--and here I would interpolate, in the year
2001; I think we would also add statutory interpretation--``But
the process of constitutional interpretation compels the
translation of policy into judgment, and the controlling
conceptions of the Justices are their idealized political
pictures of the existing social order.''
A far more recent Justice, Stephen Breyer, has put the
matter slightly differently, but he arrives at the same basic
conclusion. After first stating that ``Politics in our
decisionmaking process does not exist,'' he distinguished what
might be termed low from high politics. Thus, he said, and I
quote, ``By politics I mean will it help certain individuals be
elected.'' And I will interpolate here that he gave this speech
before Bush v. Gore, and I believe that Bush v. Gore must
necessarily be a part of the discussion of the Senate's duties
at this time.
In any case, Justice Breyer quickly went on to say that
``Personal ideology or philosophy is a different matter. Judges
have had different life experiences and different kinds of
training, and they come from different backgrounds.'' Most
importantly for our present purposes is Justice Breyer's
forthright comment that ``Judges appointed by different
Presidents of different political parties may have different
views about the interpretation of the law in its relation to
the world.''
What I would like to do in my remaining few moments before
the question period is to focus on this very last sentence of
Justice Breyer because I believe the very fact that notice was
not particularly taken when he gave his speech, that he was
thought to be stating what is almost the common sense of the
matter, indicates exactly how far we are, for better and
perhaps for worse, from the Framers' vision.
The fact is the Framers would have been shocked by the idea
that Presidents were political or that Senators were political,
because if there is one thing we know about the vision of the
Framers in 1787, it is that they disliked the very idea of
political parties. That particular vision of American political
possibility lasted somewhere between 7 and 12 years. By the
election of 1800, that vision was absolutely in tatters, as
indicated in part by the true crisis then--if we thought that
the 2000 election was a crisis election, it did not begin to
compare to the election of 1800, where there were suggestions
to call out the State militia, where it took 36 ballots to
break the tie between Thomas Jefferson and Aaron Burr.
This was because, by 1800, there were two parties
contending for power. In fact, this was recognized, in effect,
by the 12th Amendment which, by separating the stream of
electing the President from the Vice President, is, in fact,
the recognition that we are a party-based political system.
Indeed, the last thing that John Adams did before he left
the presidency was to appoint a series of so-called midnight
judges who were Federalists, who were placed in office in part
because their idealized political picture of the world, to go
back to Justice Frankfurter, was the Federalist vision shared
by President Adams and was most antithetical to Thomas
Jefferson. The most famous of these appointments, of course,
was John Marshall, who is often called the Great Chief Justice.
If we are injecting not only ideology but, to be perfectly
candid, political party background, which is what Justice
Breyer referred to, I don't believe that this is the injection
of something that has not existed heretofore. I don't believe
it is even a decline. I believe that the vision in 1787 that
one could have a political system without political parties was
itself a wrong vision; that the strength of America, as has
often been said, is a vigorous contest of political parties.
The political parties, at the their very best, organize
themselves around idealized political pictures so that they
present different notions not only of public policy, but also
different notions of certain constitutional issues. Justice
Jackson once referred to the majestic generalities of the
Constitution. He was referring to the Equal Protection Clause,
the Due Process Clause, and the like.
Senator Hatch, in particular, is well aware that there is a
debate which I participated in with regard to the Second
Amendment. One can look at the two parties and see quite
different views with regard to the Second Amendment. One could
see this with regard to other parts of the Constitution. This
is our political system, and I commend you Committee for
suggesting that we be more candid about recognizing the
importance of the idealized political pictures when considering
people for lifetime appointments to the Federal judiciary.
[The prepared statement of Mr. Levinson follows:]
Statement of Sanford Levinson, W. St. John Garwood and W. St. John
Garwood Jr. Regents Chair in Law, University of Texas Law School, and
Professor, Department of Government, University of Texas
Mr. Chairman and Members of the Subcommittee:
I am honored by the invitation of the Committee to present this
statement on the criteria that should be applied with regard to
confirming nominees for lifetime appointments to the federal judiciary.
This responsibility, of course, is truly one of the most awesome
responsibilities that Senators have.
I begin with two quotations from members of the Supreme Court
itself. The first was written by Felix Frankfurter some 70 years ago:
``[M]embers of the court are frequently admonished by their associates
not to read their economic and social views into the neutral language
of the constitution. But the process of constitutional interpretation
compels the translation of policy into judgment, and the controlling
conceptions of the justices are their `idealized political pictures' of
the existing social order.'' A far more recent justice, Stephen Breyer,
has put the matter slightly differently but he arrives at same basic
conclusion. After first stating that ``[p]olitics in our decision-
making process does not exist,'' he distinguished what might be termed
``low'' from ``high'' politics. Thus, he said, ``By politics, I mean .
. . will it help certain individuals be elected?'' He quickly went on
to say that ``[p]ersonal ideology or philosophy is a different matter .
. . . Judges have had different life experiences and different kinds of
training, and they come from different backgrounds.'' Most importantly,
for our present purposes, is Justice Breyer's forthright comment that
``[j]udges appointed by different presidents of different political
parties may have different views about the interpretation of the law
and its relation to the world.''
Justices Frankfurter and Breyer raise the central issue that
Senators must face in passing on presidential nominations to the
Judiciary: Judges with different ideologies will shape the Constitution
in radically different directions, with effects that are likely to be
felt for generations to come. Frankfurter himself, for example, was one
of the key Roosevelt appointments who together rejected the
constitutional learning of seventy years and established the basis of
congressional regulatory power and federal-state relations that are
still very much being felt to this day.
To be sure, Senators must first make sure that nominees to the
judiciary meet certain baselines of professional competence. Frankly,
however, this is almost never a serious hurdle. Instead, the crucial
question before you is what you believe the Constitution of the United
States, at least as interpreted by the Supreme Court, should look like
years from now. There is no serious doubt that the executive branch,
when submitting nominees, is attempting to shape the Constitution to
fit its own guiding vision. You must therefore ask if these nominees
offer compelling visions of what our constitutional order truly is (or
should be). To vary Mark Antony's famous statement, the good and the
evil that these men and women do will live long after they leave the
bench.
The original framework of the Constitution presumed that the Senate
would play an important role in the judicial appointment process and
serve as a necessary check and balance to the power of the Executive.
This made sense in 1787, when the Constitution was initially drafted.
Subsequent developments in our nation's history, however, make the
argument for Senate supervision of the President's judicial nominations
even stronger and the Senate's role as a check on presidential efforts
to transform constitutional meaning even more crucial.
I emphasize two such developments. First, no one in 1787, even if a
supporter of the abstract idea of judicial review, could possibly have
contemplated the role that courts would come to play in our political
life, including decisions, sometimes in quite minute detail, regarding
some of the most important political issues before the country. Even
more to the point, situated as they were at the very beginning of the
great American experiment, citizens did not understand that the work of
judges (and, for that matter, of presidents and members of Congress)
would greatly reshape the meaning of the Constitution over time. The
Constitution that emerged from the New Deal and World War II, for
example, is in many ways a substantially different document from the
one that existed in the 1820's, when few people imagined a significant
congressional role in helping to regulate a national economy and when
the United States was still able to maintain a more-or-less detached
posture vis-a-vis the intrigues of world politics. And, of course, it
is not only the Congress and the President who today possess powers
that would have astonished earlier generations. It is the Judiciary as
well. One may celebrate this set of developments or regret them, but
they comprise the constitutional system that we live under today. No
one denies that it matters who is elected to the Executive or the
Congress; it would be equal folly to pretend that the particular
identity of those who sit on the federal bench is without consequence
with regard to the quality of life and liberty our fellow Americans
enjoy, both now and in the years to come.
Second, the authors of the 1787 Constitution assumed that there
would be no organized political parties, the very idea of which
appalled them. They would therefore surely be astounded to learn that
presidents deliberately staff the judiciary with people from their own
political party in order to promote a distinctive ideological agenda.
Indeed, a testament to the pervasiveness of this development is that
Justice Breyer's statement quoted at the outset stirs no contemporary
sense of outrage and is, instead, quite properly treated as a truism
about the reality of what might be called constitutional politics. And,
unlike the New Deal, this is scarcely a (relatively) recent
development. It was, after all, James Madison himself who became,
during the 1790's, one of the leading founders of the Democratic-
Republican party that vigorously opposed the Federalist Party headed by
Alexander Hamilton. The creation of the party system led to the
election fiasco of 1801, when it took the House of Representatives 36
ballots to break the tie vote between the Democratic-Republicans Thomas
Jefferson and Aaron Burr. The tie was the direct result of the original
Constitution's failure to recognize the existence of political parties,
and it led, therefore, to the quick adoption of the Twelfth Amendment,
which, by separating the electoral tracks for president and vice-
president, also served to recognize the legitimacy of the political
party system.
Indeed, by 1801 the Framers' original vision of a judiciary free
from partisan influence had collapsed, for precisely the same reasons
that led first to the struggle in the House of Representatives and then
the adoption of the Twelfth Amendment. After all, almost literally the
last thing that the outgoing Federalist President, John Adams, did
before leaving office was to pack the judiciary with Federalists,
confirmed by a lame-duck and popularly repudiated Federalist Senate.
Adams firmly hoped that these new judges would use all the powers at
their disposal to put stumbling blocks in the way of the feared
Jeffersonians. The most famous such appointment is, of course, John
Marshall, whose designation as Chief Justice was understood by one and
all to be a powerful political statement. Thus, only a dozen short
years after the ratification of the Constitution, the practice of
linking judicial appointment to possession of the correct party
membership and ideological perspective was firmly established. ``Non-
partisan'' simply does not describe the two centuries of nominating and
confirming federal judges.----
Both Professors Cass Sunstein and Laurence Tribe, in their earlier
testimony to this Committee, have spelled out the role that ideological
judgment can legitimately play when considering judicial appointments.
I would like to state forthrightly that the point applies to both
parties, regardless of whose ox is being gored. In recent years,
Republican Senators have put stumbling blocks in the way of
confirmation of many of President Clinton's nominees to the judiciary.
I cannot offer any other than political objections to this, at least
when that opposition was candidly expressed as a good-faith belief that
a nominee possessed an unacceptable view of the Constitution. All
Senators take an oath to ``support'' the Constitution, and I have long
regarded it as important that everyone-including all elected officials
and even ordinary citizens-take seriously their own, non-delegable,
obligation to interpret the meaning of the Constitution-and, therefore,
to help safeguard what is most important in our constitutional
traditions. That means, therefore, at the very least, that every
Senator, and particularly those on the Judiciary Committee, must decide
what the Constitution, best understood, actually requires in our never-
ending quest to realize the great aims of the Preamble and its emphasis
on ``establish[ing] Justice.''
This is, obviously, not an easy task, and, as already acknowledged,
reasonable people can certainly disagree. If I disagreed with the
Republican opposition to President Clinton's nominees, it was because I
do not share their own particular vision of the constitution, not
because I think they had a duty to exhibit automatic deference to
President Clinton's contrary judgments. Senators of both parties must
think through these issues of constitutional interpretation for
themselves rather than bow down humbly before a presidential
determination as to who should be on the federal judiciary.
It is, therefore, thoroughly legitimate, under the most ordinary of
circumstances, for Senators to concern themselves with the direction in
which federal judges are reshaping the American Constitution. But these
are not ordinary times. Hovering over any discussion of judicial
nominations in our day are two central events. The first is that this
country is in the midst of a constitutional revolution in areas of
federal-state relations and civil rights. Many of the key cases in this
constitutional revolution have been decided by narrow 5-4 votes in the
Supreme Court. This revolution will be quelled, or it will go into
overdrive-with significant consequences for our system of government-
depending on the next set of appointments to the federal judiciary.
The second key event is that the occupant of the Oval Office, who
by virtue of his position gets to nominate those who will decide the
fate of the constitutional revolution, was neither elected by a
majority of the American electorate nor, far more to the point, elected
even by ordinary operation of our Electoral College system. Instead, he
was granted his office by a willful decision of the United States
Supreme Court. The five Justices who decided Bush v. Gore--and who, not
at all coincidentally, are the architects of the constitutional
revolution whose fate is at stake--put themselves in the remarkable
position of making sure that the person charged with appointing their
colleagues and successors would be the candidate most sympathetic to
the ongoing revolution. At the risk of stating the obvious, this is not
how the constitutional system of checks and balances, including the
vision of a Judiciary removed from politics, was supposed to work.
Bush v. Gore remains the equivalent of a stinking pig in the
parlor. One simply cannot calibrate the responsibility of Senators at
this crucial moment in our Nation's history without taking it into
account. Senators who share my concerns about the way that the United
States Constitution has been rewritten over the last decade and who
believe that the Court's intervention in the political process last
December was an especially ugly breach of judicial propriety must not
ignore its implications for their constitutionally assigned role as
partners in the appointments process.
In at least one way the aftermath of the 2000 election was even
more disturbing than its counterpart 200 years ago. In 1800 no one
doubted that the House of Representatives was the proper body to decide
the election dispute. In December 2000, however, we were presented with
the spectacle of five Republican judges using their power to shortcut
not only the process of counting the votes in Florida but also, in
effect, to render irrelevant the possibility that Congress, exercising
its powers under both Article II and the Twelfth Amendment, would
resolve any continuing disputes and, as in 1800 and 1824, name the
president (who, of course, might well have been George W. Bush). One
need not accuse them of consciously betraying their oaths of office.
But their choice to intervene as they did placed them in a patent
conflict of interest: No one could seriously doubt that the five
justices in the majority relished the prospect that the White House
would be inhabited by a Republican who could, among other things,
nominate their successors. And, of course, in December 2000, it
appeared that the Senate would continue to be Republican. The very
possibility that the five justices were completely sincere in their
conscious belief that they decided Bush v. Gore on the basis of the law
alone simply underscores the point that judges are human beings like
the rest of us, with a propensity to read the Constitution, if at all
possible, in a way that provides ``happy endings.'' In this case, the
happy ending is a Republican president picking Republican justices to
be confirmed by a Republican Senate.
Many law professors, of whom I am one, regard Bush v. Gore as a
patently illegitimate decision, shoddily reasoned; and many of us
believe that its illegitimacy taints Mr. Bush's own status as our
President. Even if there is something to be said for the Senate's
extending deference to a President when submitting nominees for the
federal bench, that is really quite irrelevant in the present
circumstance.
As a practical matter, there is little that one can do about Bush
v. Gore. Mr. Bush does indeed occupy the White House, and no one
seriously suggests that he ought not be accepted as our President.
But it is absolutely incumbent on those who were properly appalled
by the majority's behavior last December to stand vigilant against
allowing it to profit from its own wrong by acquiescing to the packing
of the federal judiciary with nominees who are committed to extending
the majority's constitutional revolution.
The prior testimony of Professors Sunstein and Tribe included
excellent discussion of the contours of this ongoing revolution, and I
will not repeat their arguments. I am, however, submitting today the
text of an article co-authored by Yale Law School Professor Jack M.
Balkin and myself, entitled Understanding the Constitutional
Revolution, which will appear next month as the lead article in the
Virginia Law Review. In it we set out our own understanding of the
situation that faces us, including the implications of Bush v. Gore for
the appointment process. We do not attack the good faith of those who
believe that the current majority manifests a correct constitutional
vision. We respectfully disagree, and we present an overview of what we
believe to be a far better perspective. No doubt the current majority
and its supporters would say that it is our own vision that deserves to
be rejected. Perhaps they are right, but the central point is that the
adequacy of constitutional vision of judicial nominees should be the
primary concern of members of this Committee.
I have emphasized my general agreement with the testimony offered
by my friends and distinguished colleagues Cass Sunstein and Laurence
Tribe. I do, however, disagree with them in at least one important
respect: Both of them evoke metaphors of maintaining (or restoring)
``balance'' to the Court and achieving the right ``mixture'' of
viewpoints. Each seems to suggest that it is especially important to
prevent the Court from becoming too unbalanced in favor of right-wing
perspectives. The problem with the imagery of ``balance'' is that we
have absolutely no way to figure out what a proper balance is. Franklin
Delano Roosevelt had no obligation to preserve a mixture of New Dealers
and opponents of the New Deal in his judicial appointments in the
1940's. His authority to appoint Justices like Felix Frankfurter (and
Senator Hugo Black and his Attorneys General Robert Jackson and Frank
Murphy, among others) came from his repeated victories at the polls,
which suggested, among other things, that Americans viewed as necessary
and proper a variety of changes in the basic structure of our political
system, ranging from a significantly strengthened Congress to the
acceptance of the validity of an elaborate system of administrative
agencies charged with implementing congressional enactments. In like
fashion, I see no reason (nor did anyone suggest at the time) that
President Lyndon Johnson in 1967 should have nominated a conservative
(or even moderate) segregationist instead of Thurgood Marshall in order
to achieve some balance on racial issues in the increasingly liberal
Warren Court. Johnson's 1964 landslide victory, coupled with equally
impressive-legislative victories by the Democratic Party in 1964 and
1966, established all the authority that was necessary to promote an
agenda of racial equality in naming new members of the federal
judiciary. The same thing might be said, incidentally, about the
nomination and confirmation of Antonin Scalia during the Reagan
Administration, shortly after his smashing victory in 1984 and, equally
important, the return of a Republican Senate. The problem today is that
George W. Bush lacks precisely this sort of political authority to
throw the Court further to the right and to reshape the meaning of the
Constitution for generations to come. George W. Bush is not Ronald
Reagan, and the disputed election of 2000 is not the landslide of 1984.
And, frankly, given the 200-year acceptance of the legitimacy of
political parties, Democratic members of the Senate are under no duty
to pretend that they are not the majority of this venerable
institution.
Whether ``balance'' is really the issue is underscored by a
question raised by Illinois Senator Stephen A. Douglas in one of the
most electric moments of our political history, his famous debates with
Abraham Lincoln. Speaking of the Court's 1857 decision in Dred Scott,
which in effect held unconstitutional the platform of the newly formed
Republican Party represented by Lincoln, Douglas noted that ``Mr.
Lincoln cannot conscientiously submit, he thinks, to the decision of a
court composed of a majority of Democrats. If he cannot, how can he
expect us to have confidence in a court composed of a majority of
Republicans?'' Douglas's use of the word ``majority'' is key, for he is
speaking not of ``balance'' and the propriety of having a Republican
voice on the Court. (That, indeed, existed.) Nor would Lincoln have
been any happier if Dred Scott had been a 5-4 decision instead of 7-2.
Rather, he objected to the fact that the Supreme Court was controlled
by persons committed to what Lincoln properly viewed as an odious view
of the Constitution. And Douglas recognized that Lincoln was committed
to securing a new majority, as in fact he did upon his election to the
presidency two years later and his ability to nominate justices who
would be confirmed by what had become a Republican Senate.
Focusing on questions of ``balance'' and ``mixture,'' I am afraid,
simply allows us to neglect talking about the real issues before both
the Senate and the American public. What should become of the
constitutional revolution put in place by the current five-person
majority and celebrated, as a ``revolution,'' by such prominent law
professors as Northwestern law professor Steven Calabresi? Should the
Senate allow the decision in Bush v. Gore to its proponents a political
advantage in carrying that revolution forward?
I offer two final comments about ``balance.'' First, to the extent
that ``balance'' is in fact desirable, the best way to achieve it is
through the ordinary political process of shifts in power among the
political parties in both the Executive and the Senate. It may be,
however, that our ordinary political system is failing us in important
respects, for reasons that I would be happy to go into in during the
question period.
Secondly, if this Committee does wish to wrestle with such
questions as to what constitutes the best ``mix'' of judges on a court,
I would emphasize the importance not only of abstract ideology, but
also of what Justice Breyer described as ``life experience and
different kinds of training.'' I believe that a significant lack on the
current Supreme Court is someone with a significant degree of political
experience. The developing custom of appointing to the Supreme Court
only persons with prior experience on the bench is, I believe,
decidedly unwise, depriving the Court of important perspectives that
are the result of real immersion in the political process. Courts in
the past have regularly included former senators, governors, cabinet
officials, and, in one instance, a former president. We would do well
to return to that practice, and this Committee should use its
``advisory'' role to encourage such nominations.
In one sense, this emphasis on political experience is independent
of ideology inasmuch as there are obviously both Democrats and
Republicans who would bring rich political backgrounds to the
judiciary. But there is at least one connection worth mentioning:
Several analysts of the current Supreme Court emphasize a specific
ideological theme that runs through many of its decisions, which can
accurately be described as a near contempt for politics and
politicians. The current Court is composed of a majority of justices,
themselves without significant political experience, who appear to view
politicians as simply the agents of private interests and pressure
groups, unworthy of trust, coupled with a fear of disorder if the
political process is not tightly controlled. (Bush v. Gore is the most
dramatic illustration of this point.) The disdain for other branches of
government, and for the wisdom that might be generated by service in
this branches, leads the Court to give the impression that only it can
be trusted to enforce constitutional values or to think about what the
Constitution means. Three important examples of this contempt for
Congress are Flores v. City of Boerne, in which the Court blithely
invalidated the Religious Freedom Restoration Act, supported by
overwhelming majorities of both Houses of Congress and by the President
of the United States; and United States v. Morrison and University of
Alabama v. Garrett, in which the majority exhibited ill-disguised
disdain for the relevance of the many hearings, held over several
years, that led Congress to pass the Violence Against Women Act and the
Americans with Disabilities Act.
The Supreme Court, therefore, has made its own contributions,
together with the tabloid press and cable news shows, to the pervasive
cynicism about the political process that is corroding our political
system. The voice of an honorable practitioner of the arts of politics
would be a valuable addition both in the conference room of the Supreme
Court and, indeed, in the written opinions themselves.
I have emphasized the issues posed by nominations to the Supreme
Court, but one should not minimize the importance of appointments to
what the Constitution deems ``inferior'' federal courts. Indeed,
because of the fact that the Supreme Court hears only relatively few
cases in any given year, almost all decisions of the circuit courts are
in fact final, not only for the litigants in the particular case but
also for the millions of persons who happen to live in a particular
circuit. Circuit judges do not enjoy the same degree of freedom as do
Supreme Court justices with regard to overruling past decisions, but it
would be foolish to ignore the extent to which imaginative and
innovative circuit judges can indeed exercise a real influence on legal
developments, for good and for ill. No one, for example, could
understand the current constitutional revolution without paying due
attention particularly to certain judges on the Fourth and Fifth
Circuits. This does not mean that the same level of ideological
scrutiny should be applied to all nominees at each level of the federal
judiciary. It does mean, however, that ideology should not be
irrelevant even when considering a nominee to a federal district or
circuit court.
Chairman Schumer. Thank you, Professor Levinson. I very
much appreciate your summary.
Our next witness is someone equally distinguished, although
different philosophically
than you are. This is Professor Ronald Rotunda. He is the
Albert E. Jenner, Jr. Professor of Law. He is a graduate of
Harvard College, Harvard Law School, and he was a member of the
Harvard Law Review. He clerked for Walter Mansfield, of the
United States Court of Appeals for the Second Circuit,
practiced law in Washington, D.C., and served as assistant
majority counsel for the Senate Watergate Committee.
He then joined the faculty of the University of Illinois
College of Law and at present is a visiting professor at George
Mason University School of Law. He has published over 200 legal
articles, is the author of a leading constitutional law
treatise, and has served as a consultant to several emerging
democracies, including Cambodia and Eastern European countries,
helping them craft constitutional, legal and judicial codes.
Professor Rotunda, like all the other witnesses, your
statement will be read into the record and you may proceed as
you wish for 5 minutes.
STATEMENT OF RONALD D. ROTUNDA, PROFESSOR OF LAW, UNIVERSITY OF
ILLINOIS COLLEGE OF LAW, CHAMPAIGN, ILLINOIS
Mr. Rotunda. Thank you very much. I really wish my mother-
in-law were here to hear that. Behind every married man is an
amazed mother-in-law.
First, as a matter of judicial ethics--I teach ethics as
well as constitutional law--the general rule has always been,
and it is in the ABA ethics rule and I think all of the States
have adopted it, that a candidate for judicial office, whether
elected or appointed, should not ``make pledges or promises of
conduct in office, other than the faithful and impartial
performance of the duties of the office.''
I think it is wrong for a nominee to promise to vote a
certain way, promise to adhere to a particular philosophy. The
Senate should not confirm anyone who would make such promises.
I have talked to people who have gone through the vetting
process for the first President Bush. None of them were asked
such questions, at least the ones I talked to. I can't believe
President Clinton or his aides would do that. I think Senators
should find out from the nominees if they have made such
promises and should reject those who have made them.
Professor Larry Tribe, whose ears must always be ringing at
the hearing today, whom I quote in my paper, said regarding
Justice Kennedy he is conservative on a great number of issues.
``I don't have any illusion he will be a liberal, but he
shouldn't be opposed just because of that.''
I don't think nominees should make any of these promises. I
think that consideration of ideology should not be over the
table, under the table, or through the table. It is something
that shouldn't be done. Various Democratic commentators like
Lloyd Cutler have urged that as well.
I think that you ought to be guided by three standards.
First, we want the independence of our Federal judiciary. The
business of judging is not treated as outcome-based; it is not
like an election or like a football team. Tell me who won. That
is all we want to know.
Second, we want fair courts. We don't want liberal courts,
we don't want conservative courts, we don't want balanced
courts. We want fair courts. ``Fair'' doesn't necessarily mean
that they reflect what most of the people want, or we never
would have had Brown v. Board of Education. By ``fair'' I mean
judges who call them as they see them, not because of the
politics of the next election. They worry about the next
generation.
Thirdly, I think neither the Senators nor the President
should be asking nominees how they are going to vote on
particular outcomes, and if they do, the nominees shouldn't
answer.
Should we change the system? If it ain't broke, we don't
change it, is the general principle. We have today the most
respected judiciary in the world, bar none. I have gone around
the world. A member of the supreme court of Moldova said, ``I
don't know much about your system, but I know yours is the one
we want to emulate.'' That is why they asked for an American to
be their constitutional adviser; Cambodia the same thing. These
people were imbued in French law, but they said, ``No, we want
to be like America because we respect your judges.'' We are at
the top of the food chain and when something is successful, we
normally don't change it.
A third point: I think it is erroneous to believe that
judges rule as either Democrats or Republicans once they are on
the bench. In Roe v. Wade, this controversial decision for many
years, a dissenter was a Democratic appointee, Justice White.
Judge Harry Edwards, a respected professor, as well as a
judge on the D.C. Circuit, did a very interesting empirical
analysis of the circuit. He concluded that couldn't predict how
they were going to vote based on their appointments.
I have talked to a lot of lawyers. I deal with a lot of
lawyers in litigation. What they want is a judge who is open-
minded, and they often don't know who appointed the judge,
whether it was a Republican or a Democrat.
Finally, history should teach us to be more humble. When we
try to predict, we are just wrong. The National Organization
for Women last May, I believe, had a big demonstration. They
were upset that Justice O'Connor might retire soon and they
didn't like her replacement, whoever that might be. But
earlier, when she was nominated, they were against her.
When Justice Powell was nominated, the president of NOW
testified that Powell's confirmation would mean ``justice for
women will be ignored.'' When Stevens was nominated, NOW
testified that Stevens had ``blatant insensitivity to
discrimination against women.'' If NOW were a baseball team, it
would be batting zero.
Presidents are just as unsuccessful as NOW. There is
nothing about that organization that makes it stand out.
President Roosevelt appointed both Felix Frankfurter and
William O. Douglas. They had different judicial philosophies.
I think, frankly, that most candidates for judgeships don't
know what their philosophy is when they start judging and it
changes everyday. That is why we can't give it to computers; we
want people who learn over time. One of the examples in my
paper was Judge Friendly. Judge Friendly wrote an article on
how an issue should be decided. When he was a judge, he was in
the dissent. When he saw the oral argument, looked at the
transcript and read the briefs, he decided he was wrong. The
majority quoted Judge Friendly's article. How is that for
sticking something in? They were are quoting Friendly against
Friendly.
Well, we know he was right because he was on both sides of
the issues, so he has to be correct at least part of the time.
But the point was that you could look at that quote and you
would think I know how he is going to rule as a judge. He
didn't know how he was going to rule as a judge until he
actually ruled, and the best judges are like that.
Thank you very much.
[The prepared statement of Mr. Rotunda follows:]
Statement of Ronald D. Rotunda, The Albert E. Jenner, Jr. Professor of
Law, University of Illinois College of Law, and Visiting Professor of
Law, Fall, 2001, George Mason University School of Law
Introduction
I thank the Subcommittee for inviting me to express my views. I am
the Albert E. Jenner, Jr. Professor of Law at the University of
Illinois College of Law, where I researched and taught Constitutional
law and Legal Ethics for over a quarter of a century. This fall, I am
Visiting Professor of Law at George Mason University School of Law.\1\
---------------------------------------------------------------------------
\1\ A complete resume is on file with the Subcommittee
---------------------------------------------------------------------------
Let me begin by making several points on which I will elaborate at
the end of this paper.
FIRST, IF IT AIN'T BROKE, DON'T FIX IT. We have today--and we have
had the entire Twentieth Century--the most powerful and respected
judiciary in the world. I have traveled from Cambodia to Moldova as a
Constitutional advisor to newly emerging democracies. Foreign lawyers
admire our legal system. Even if they do not fully understand our
system, even if the Commissars had kept them in the dark, they know
that it is the system that they would like to emulate.\2\
---------------------------------------------------------------------------
\2\ See, e.g., Ronald D. Rotunda, Exporting the American Bill of
Rights: The Lesson from Romania, 1991 U. ILL. L. Rev. 1065 (1991);
Ronald D. Rotunda, Eastern European Diarv: Constitution-Building in the
Former Soviet Union, 1 THE GREEN BAG, 2D SERIES 163 (Winter 1998).
---------------------------------------------------------------------------
That sentence bears repeating because I am paraphrasing judges,
lawyers, and politicians in Eastern Europe, Far East Asia, and South
America. They all say that they want their judicial systems to be like
our federal system. They want their judges to be like our judges. The
lawyers in South America were familiar with our system, the lawyers
formerly under Communist domination were not, yet they knew that it was
our system that they wanted to copy. They were all more familiar with
the French Civil Law system, but they wanted to copy our system, not
the French.
In Moldova, for example, a member of the Supreme Constitutional
Court told me that, years earlier, when he was writing his dissertation
on Comparative Constitutional Law, he had to secure special permission
to travel to Moscow to read the Czech Constitution, which was under
lock and key at the time--although Czechoslovakia was then a Communist
country, and hardly a model of Western democracy. This Moldovan Justice
knew nothing about our system except that he wanted to copy it. He knew
that if the Commissars were concerned with the destabilizing influence
of the Czech Constitution, they were overwhelmed by the American Bill
of Rights.
Our judicial system is at the top of the food chain, and that is a
good reason to leave well enough alone. Given the fact that the Senate
has been confirming federal judges for years, and the product is
admired around the world, one wonders why we should think of changing
the way the Senate confirms.\3\ There is no reason to change
presumptions or change the way the confirmation process works when the
present system has produced--over a period that spans several
lifetimes--the best judiciary in the world. Granted, some judicial
decisions are not immediately accepted. The one person, one vote
decisions, fall in that category, \4\ but now they are part of the warp
and woof of our Constitution. Our federal judiciary is independent by
design of the framers of our Constitution. An independent judicial
system means that sometimes judicial opinions will be unpopular, and we
must accept that.
---------------------------------------------------------------------------
\3\ E.g., Vikram Amar, How Do You Think?: Ideology and the Judicial
Nominee, Legal Times, July 9, 2001, at 50, arguing that the Senators
should ask the nominees ``various hypothetical or not-so-hypothetical
cases,'' with questions that are ``concrete,'' and based ``on actual
live controversies.'' This author even argued that the Senators should
take into account a ``lawyer's decision to take a case that he knows
will involve the making of certain kinds of arguments that may be
probative of his beliefs.''
I disagree: we should not judge lawyers by their clients. Lawyers
have every right (and duty) to defend members of the Communist Party or
the KKK, although they strongly disapprove of those organizations.
``Regardless of his personal feelings, a lawyer should not decline
representation because a client or a cause is unpopular or community
reaction is adverse.'' ABA Model Code of Professional Responsibility,
E.C. 2-27. Lawyers may defend guilty people and secure their acquittal.
The fact that a lawyer takes such cases and is successful in his
legal arguments is not ``probative of his beliefs.'' We do not judge
lawyers by their clients.
\4\ Philip Kurland, Egalitarianism and the Warren Court, 68 MICH.
L. REV. 629, 677 (1970) (attacking the one person, one vote cases);
ALEXANDER BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 174 (1970)
(same); ALEXANDER BICKEL, SUPREME COURT, supra, at 59 (criticism of
poll tax case); ARCHIBALD COX, THE WARREN COURT: CONSTITUTIONAL
DECISION AS AN INSTRUMENT OF REFORM 125 (1968) (same).
---------------------------------------------------------------------------
SECOND, IT IS A COMMON, AND ERRONEOUS BELIEF THAT JUDGES RULE AS
DEMOCRATS OR AS REPUBLICANS ONCE THEY ARE ON THE BENCH. THAT IS FALSE.
The judges are human, to be sure. They put on their robes, two legs at
a time. But they act in good faith in coming to their conclusions, and
they do not vote based on the election returns. They know that their
ultimate judge is history, not the politics of the moment. We want fair
courts--not liberal courts, not conservative courts, not moderate
courts, but fair courts, and by ``fair,'' I mean we want judges who
will call them as they see them, without regard to politics.
Let us take the D.C. Circuit, for example. I have heard it said
that the D.C. Circuit is one of the most partisan, and that one can
predict how the case will come out when you know which judges are
sitting on the three-person panel. That is the popular notion and it is
wrong. A former law professor, Harry Edwards, the highly respected
judge of the D.C. Circuit, studied this issue as only a scholar would.
He studied the cases and the votes of the judges based on the President
who appointed them. Based on the facts, Judge Edwards concluded that
the judges did not act as Democratic Judges or Republican Judges but as
judges. He strongly objected to ``a growing perception that federal
judges decide cases on political grounds . . . .'' This view, he said,
is not only simply wrong, and a ``myth,'' but it tends to undermine
public confidence in the judicial process.'' \5\
---------------------------------------------------------------------------
\5\ Harry Edwards, Public Misconceptions Concerning the
``Politics'' of Judging: Dispelling Some Myths About the D. C. Circuit,
56 COLO. L. REV. 619 (1985) (emphasis added).
---------------------------------------------------------------------------
THIRD, COMMENTATORS, PRESIDENTS, AND SENATORS MAY THINK THAT THEY
CAN PREDICT HOW A NOMINEE WILL VOTE ONCE THAT PERSON IS CONFIRMED, BUT
OUR HISTORICAL EXPERIENCE SHOULD TEACH US TO BE MORE HUMBLE. We do not
know what will be the major legal issues ten, fifteen, or even five
years from now, much less what might be the ``liberal'' or
``conservative'' answer to them. We cannot predict with any accuracy.
History has repeatedly taught us that lesson.
For example, the National Organization for Women recently rallied
in Washington, D.C., demonstrating because of their concern that
Justice O'Connor might retire soon and were concerned about her
replacement.\6\ However, when President Reagan appointed her, NOW was
substantially less enthused. When Justice Powell was nominated, the
President of NOW testified that Powell's confirmation would mean that
``justice for women will be ignored . . . .'' \7\ When Justice Stevens
was nominated, a different President of NOW testified that Justice
Stevens has ``blatant insensitivity to discrimination against women.''
\8\ If NOW were a baseball team, it would be batting zero.
---------------------------------------------------------------------------
\6\ Charles Lane, O'Connor Denies Plans To Leave Supreme Court,
WASHINGTON POST, May 2, 2001, at A9: ``The National Organization for
Women rallied to a recent demonstration in Washington in part by
warning that O'Connor was about to step down.''
\7\ NOMINATIONS OF WILLIAM H. REHNQUIST AND LEWIS F. POWELL, JR.:
HEARINGS BEFORE THE SENATE COMM. ON THE JUDICIARY, 92d Cong., Ist Sess.
424 (1971).
\8\ NOMINATION OF JOHN PAUL STEVENS TO BE A JUSTICE TO THE SUPREME
COURT: HEARINGS BEFORE THE SENATE COMM. ON THE JUDICIARY, 94th Cong.,
1st Sess. 227 (1975).
---------------------------------------------------------------------------
Similarly, civil rights lawyer Henry L. Marsh III testified at the
Powell confirmation hearings about Powell's ``record of continued
hostility to the law, his continual war on the Constitution.'' \9\ That
is not the Justice Powell that any of us would recognize.
---------------------------------------------------------------------------
\9\ NOMINATIONS OF WILLIAM H. REHNQUIST AND LEWIS F. POWELL, JR.,
SUPRA, AT 389-90.
---------------------------------------------------------------------------
Presidential batting averages are equally poor, as I explain more
fully below. President Roosevelt appointed both Felix Frankfurter and
William O. Douglas, two Justices who were both thought liberal before
they were appointed. The same President appointed both men, and once
they were on the bench, they were as alike as oil and vinegar.
FOURTH, IT IS COMMONLY REPEATED THAT THE COURT HAS BECOME MORE
CONSERVATIVE OVER THE YEARS AND THAT PRESIDENT CLINTON DID NOT APPOINT
LIBERAL JUDGES. I DO NOT BELIEVE THAT THE RECORD SUPPORTS THAT ROUTINE
ASSERTION. Elsewhere, I have written \10\ on the difficulties of these
labels, ``liberal,'' and ``conservative,'' and so I will resist
mightily the effort to repeat myself. Let us look at a few facts.
---------------------------------------------------------------------------
\10\ See RONALD D. ROTUNDA, THE POLITICS OF LANGUAGE: LIBERALISM AS
WORD AND SYMBOL (University of Iowa Press, 1986) (with an Introduction
by Daniel Schorr).
---------------------------------------------------------------------------
During the last two terms on the Supreme Court--during just these
last two terms the Court invalidated a state law that intruded on the
parental relationship by mandating grandparents' visitation rights.\11\
This same Court threw out state laws that interfered with federal power
over international affairs,\12\ and motor vehicles.\13\ The Court
upheld federal privacy laws that regulated state motor vehicle
departments and placed upon them the same restrictions imposed on
private parties.\14\
---------------------------------------------------------------------------
\11\ Troxel v. Granville, 120 S.Ct. 2054 (2000).
\12\ Crosby v. National Foreign Trade Council, 120 S.Ct. 2288
(2000).
\13\ Geier v. American Honda Motor Co., 120 S.Ct. 1913 (2000).
\14\ Reno v. Condon, 120 S.Ct. 666 (2000).
---------------------------------------------------------------------------
There are those who complain that the present Court is too
deferential to the states, although some prominent Democratic law
professors say otherwise.\15\ Yet, this same Court has shown that, when
it is protecting civil rights and liberties, it is willing to override
both state or federal laws and regulations to meet that goal. The Court
is neither liberal nor conservative as those labels are commonly used
because the Justices are not politicians.
---------------------------------------------------------------------------
\15\ While some Democratic commentators have made this argument, it
is interesting that former Acting Solicitor General Walter Dellinger
appears to have rejected it. The new federalism cases still leave
Congress with considerable legislative power, but, Mr. Dellinger was
quoted as saying, it will be more difficult for Congress to enact
legislation that is ``more appropriate to county commissions than to a
national government.'' Former acting Solicitor General Walter
Dellinger, quoted in, Mary Deibel, Court Cutting Federal Role, CHICAGO
SUN-TIMES, June 25, 1999, at p. 35.
Professor Laurence Tribe has supported an even broader view of
states' rights. He has argued for ``islands in the stream of commerce''
that would be immune from federal regulation. Tribe, Federal-State
Relations, in 4 JESSE CHOPER, YALE KAMISAR & LAURENCE TRIBE, THE
SUPREME COURT: TRENDS AND DEVELOPMENTS 1981-1982, at 164 (1983). See
also LAURENCE TRIBE, CONSTITUTIONAL CHOICES 125-32 (1985).
---------------------------------------------------------------------------
There are many other examples one can cite. Justice Scalia, which
the popular culture typically portrays as conservative, voted twice to
protect burning the American Flag as free speech.\16\ Justice Stevens,
which the media tells us is liberal, dissented in both of those two
cases.\17\
---------------------------------------------------------------------------
\16\ Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d
342 (1989); United States v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110
L.Ed.2d 287 (1990).
\17\ Stevens, J. claimed that the majority's opinion would allow
vandals to spray graffiti on the Washington Monument. 491 U.S. at 436,
109 S.Ct. at 2556 (Stevens, J., dissenting). However, Congress owns the
Washington Monument and can prosecute those who defile it as an
ordinary trespass. Texas did not prosecute Johnson for trespass,
disorderly conduct, arson, theft of flag, vandalism, etc. Rehnquist,
C.J., joined by White (a Democratic appointee) & O'Connor, JJ., filed a
blistering dissent that included long excerpts quoted from poems (such
as Ralph Waldo Emerson's ``Concord Hymn'' ' ``and John Greenleaf
Whittier's ``Barbara Frietchie'') hailing the flag.
---------------------------------------------------------------------------
A few months ago, this Supreme Court voted unanimously to reverse
the Ohio Supreme Court and hold that a witness who denied wrongdoing
still had a constitutional right to assert the privilege against self-
incrimination.\18\ I do not think that this and similar decisions can
be explained by any facile reference to politics.
---------------------------------------------------------------------------
\18\ Ohio v. Reiner, 121 S.Ct. 1252 (2001) (per curiam). The Court
comes out this way because the Justices act in good faith without
regard to political labels.
---------------------------------------------------------------------------
Justice Scalia recently wrote the opinion that banned warrantless
searches using hightechnology heat-seeking devices.\19\ By the way,
Justice Stevens wrote the dissent.\20\ Some commentators cannot
understand this line-up and complain that Justice Scalia is acting not
true to form. Perhaps the problem is the commentators. When they cannot
put a square peg in a round hole, the problem may not be the peg, but
the commentators who have predicted that the square peg will be round,
and are upset that their prediction is incorrect.
---------------------------------------------------------------------------
\19\ Kyllo v. United States, 121 S. Ct. 2038; 150 L. Ed. 2d 94
(2001), holding that when the Government uses a device that is not in
general public use, to explore details of a private home that would
previously have been unknowable without physical intrusion, the
surveillance is a Fourth Amendment ``search,'' and is presumptively
unreasonable without a warrant, under the Fourth Amendment.
\20\ Stevens, J., filed a dissenting opinion, in which Rehnquist,
C.J., and O'Connor and Kennedy, JJ., joined.
---------------------------------------------------------------------------
It is interesting that the year after Justice Scalia was appointed
to the Court, Professor Larry Tribe became one of his fans:
So far I find myself more in agreement with him than with any
other justice this term. His opinions show a degree of care and
attention to the actual issues before the Court that is
refreshing and I wish was shown by others on the Court. The
clarity of his analysis so far puts him in a class by
himself.\21\
\21\ Professor Tribe, quoted in, Adler, Scalia's Court, AMERICAN
LAWYER, Mar., 1987, at 20.
---------------------------------------------------------------------------
AND FIFTH, AS A MATTER OF JUDICIAL ETHICS, JUDGES AND CANDIDATES
FOR JUDGES MAY NOT PROMISE TO VOTE PARTICULAR WAYS ON PARTICULAR CASES.
Any person who is a candidate for appointment to a judicial office
``shall not''--
make pledges or promises of conduct in office other than the
faithful and impartial performance of the duties of the
office.\22\
\22\ ABA MODEL CODE OF JUDICIAL CONDUCT, Canon 5A(3)(d)(i). See,
RONALD D. ROTUNDA, LEGAL ETHICS: THE LAWYER'S DESKBOOK ON PROFESSIONAL
RESPONSIBILITY Sec. Sec. 62-2 (ABA-West Group, St. Paul, Minnesota,
2000) (jointly published by the ABA and West Group, a division of
Thompson Publishing); THOMAS D. MORGAN& RONALD D. ROTUNDA, PROBLEMS AND
MATERIALS ON PROFESSIONAL RESPONSIBILITY 644-55 (Foundation Press, New
York, N.Y., 7th ed. 2000).
---------------------------------------------------------------------------
It is wrong for a nominee to promise to vote a certain way, to
promise to vote to overrule or to not overrule a particular precedent,
or promise to approach a legal problem with a particular mind set.
The Senate should not confirm anyone who should make such promises.
I have talked to people who went through the vetting process under
former President Bush and none of them were asked such questions. I
cannot believe that President Clinton or his aides would have asked
such questions, nor that such questions would be asked in the vetting
process under President George W. Bush.
Senators should not vote for or against a nominee because of
predictions (often wrong) of how that nominee might vote on legal
questions. As Professor Larry Tribe has advised, regarding Justice
Kennedy, ``He's conservative on a great number of issues. I don't have
any illusions he will be liberal. But he shouldn't be opposed just
because of that.'' \23\
---------------------------------------------------------------------------
\23\ HARVARD LAW RECORD, Nov. 20, 1987, at 1, col. 1 (emphasis
added).
---------------------------------------------------------------------------
I think it is permissible to ask nominees if they have made any
promises--other than `` the faithful and impartial performance of the
duties of the office''--to the President or to any Senator. If the
nominee has made such promises, then the Senate should know what they
are. But I believe that neither the Senate nor the President may or
should seek such promises; the Senate should not confirm someone who
treats the judicial office as an elected office. If judges are no
different than politicians, the people should elect them directly.
As various Democratic commentators have advised, we should not
oppose judicial nominees because of our predictions of how their legal
views might mature over the years, and we should not ask nominees to
promise to vote a particular way on legal issues.\24\ And, as former
White House Counsel Lloyd Cutler under President Carter and President
Clinton, and former Representative Mickey Edwards (R., Okla.) have
recommended: ``the president and the Senate must not ask for, and the
candidate not offer or consent to give, any pre-commitments about
unresolved cases or issues that may come before them as judges.'' \25\
---------------------------------------------------------------------------
\24\ Ruth Bader Ginsburg, Inviting Judicial Activism: A ``Liberal
`` or ``Conservative `` Technique?, 15 GA. L. REV. 539, 553-57 (1981);
Smith, Involving the Judiciary in Pdlitical Campaigns, 66 A.B.A.J. 1318
(1980) (American Bar Association's House of Delegates declare that it
disapproves of ``any [political party] platform plank'' that deviated
from the selection of judges on the basis of merit by requiring a test
of the candidate's ``particular political or ideological
philosophies.''); HARVARD LAW RECORD, Nov. 20, 1987, at 1, col. 1,
quoting Professor Larry Tribe.
\25\
---------------------------------------------------------------------------
Lloyd Cutler & Mickey Edwards, Avoiding a Political Dead End on
Judges, Scripps Howard News Service, Aug. 24, 2001, reprinted in,
http://www.nandotimes.com/opinions/v-text/stoDL/6601 1 p-
941658c.html?printer%20
In short, Senatorial questions to nominees ought to be guided by
three standards:
FIRST, it is essential that the independence of the
courts be preserved. This means that the business of judging
cannot be treated as though it is solely outcome-based, i.e.,
who wins and who loses on a particular policy issue.
SECOND, we want fair courts--not liberal courts, not
conservative courts, not moderate courts, but fair courts, and
by ``fair,'' I mean we want judges who will call them as they
see them, without regard to politics. And,
THIRD, neither Senators nor the President should ask
nominees about particular issues and outcomes because nominees
should only promise the faithful performance of their judicial
duties.
With that introduction, let me turn in more detail to some
interesting history that may, hopefully, put the present issues in
perspective.
Our Earlier Traditions
It has only been in relatively recent times that the Senate has
subjected nominees to wide-ranging confirmation hearings, yet it has
always been a given that the nominees do not make promises other than
the faithful performance of their judicial duties. The last
threequarters of a century has seen dramatic changes in the style and
format of these hearings.
The hearing process used to be much simpler. For example, on
September 4, 1922, Justice John H. Clarke resigned. On the very next
day, President Warren Harding nominated George Sutherland to the
Supreme Court, and the Senate confirmed later that same day.\26\ No one
would expect the Senate to act so promptly today.\27\
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\26\ H. ABRAHAM, JUSTICES AND PRESIDENTS: A POLITICAL HISTORY OF
APPOINTMENTS TO THE SUPREME COURT 186 (2d ed. 1985).
\27\ When President Clinton left office, there were 41 judicial
nominees pending, and 67 judicial vacancies. Today, there are 107
vacancies on the Federal Bench.
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Until 1929, if the Senate Judiciary committee would hold
confirmation hearings on the Supreme Court nominee, they would be
closed.\28\ And, until relatively recent times, the nominee would never
appear and testify at the confirmation hearing.
---------------------------------------------------------------------------
\28\ 71 CONG. REC. 3039 (1929). It was not until 1981, during the
confirmation hearings of Sandra Day O'Connor, that the Senate Judiciary
Committee allowed radio and television to be present in the hearing
room. See Nina Totenberg, The Confirmation Process and the Public: To
Know or Not to Know, 101 HARV. L. REV. 1213, 1213 & n.1 (1985).
---------------------------------------------------------------------------
For most of our history, it was considered inappropriate for a
judicial nominee to appear in person and testify. The Senate had the
duty to advise and consent, but the senators should not directly
question nominees about their philosophies. Typically the nominee might
be staying at a hotel near the Capitol, where he could respond to
questions by sending telegrams or letters to the committee, but he
would not personally attend and would not be subject to direct and
follow-up questioning.\29\
---------------------------------------------------------------------------
\29\ See Frank, The Appointment of Supreme Court Justices:
Prestige, Principles, and Politics, 1941 Wis L. REV. 172, 200-04
(1941).
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Personal Appearance
The first nominee who actually appeared in person was Harlan Fiske
Stone. Calvin Coolidge nominated Stone on January 25, 1925. In accord
with the custom of the time, Stone did not appear before the Senate
Judiciary Committee, which approved him unanimously. But Stone had a
powerful adversary, Burton K. Wheeler, Senator from Montana, and
Wheeler had many friends. Wheeler was under investigation by the
Justice Department, and Stone was the attorney general who had asked
Wheeler to appear before a federal grand jury in Washington, D.C.
Senator Thomas Walsh, on behalf of Wheeler, persuaded the Senate to
resubmit the nomination to the committee. Stone then took the
unprecedented step of agreeing to appear before the committee for a
narrow purpose: to answer questions about the Wheeler affair, provided
that the hearing would be public. On January 28, the committee
questioned Stone for nearly five hours. On February 2, in executive
session, the committee again sent forward Stone's nomination, and the
Senate approved 71 to 6, with Wheeler and the other Montana senator
abstaining.\30\
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\30\ A. MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 188-99 (1956).
---------------------------------------------------------------------------
Interestingly, Wheeler later became good friends with Stone;
Wheeler believed that someone had lied to Stone, for ``that [is] the
only way you can account for the handling of the case against me after
he became Attorney General.'' \31\
---------------------------------------------------------------------------
\31\ A. MASON, supra, at 191 n.*.
---------------------------------------------------------------------------
After Stone's testimony, the Senate reverted to its standard
procedure of having confirmation hearings without the nominee's ever
testifying. In fact, five years after Stone's appearance, when Herbert
Hoover nominated Judge John Parker to the Supreme Court, the Judiciary
Committee rejected a motion to allow him to appear the committee and
testify! \32\ Parker had to follow the traditional procedure of
answering any charges made against him in writing.\33\ The Senate
rejected Parker and then approved the next nominee, Owen Roberts.
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\32\ W. BURNS, DUTY AND THE LAW: JUDGE JOHN T. PARKER AND THE
CONSTITUTION 84-85 (1987).
\33\ See, e.g., 72 CONG. REC. 7793-95 (1930).
---------------------------------------------------------------------------
Felix Frankfurter also broke tradition and appeared before the
Judiciary Committee. At first, Frankfurter followed tradition and
refused to appear personally before the committee, but after a steady
stream of witnesses attacked Frankfurter, his associations, his foreign
birth, and his religious beliefs, the committee asked him to appear. He
did so, accompanied by his lawyer, Dean Acheson.
Frankfurter began by reading a prepared statement declaring that he
would not discuss or express his personal views on controversial issues
that were before the Court. He responded to Sen. Patrick McCarran's
questions about his patriotism by affirming his belief in
``Americanism.'' His personal appearance was dramatic and brief. He
spoke, in total, only for about 90 minutes.\34\
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\34\ HEARINGS ON THE NOMINATION OF FELIX FRANKFURTER BEFORE THE
SUBCOMM. OF THE SENATE JUDICIARY COMM., Jan. 11-12 (1939); L. BAKER,
FELIX FRANKFURTER 208-10 (1969).
---------------------------------------------------------------------------
John Marshall Harlan was the third nominee who appeared to testify.
Since that time, which only dates to 1955, supreme court nominees have
appeared and given testimony. This relatively recent tradition now has
become so expected that it would be unheard of for a nominee to refuse
to speak before a public session of the Senate Judiciary Committee.
Courtesy Calls
Another new tradition has developed relatively recently. It has now
become the norm for Supreme Court nominees to pay courtesy calls on
selected senators. While it is true that Louis Brandeis had an informal
dinner meeting with two senators who had expressed doubts on his
nomination,\35\ the Brandeis meeting was like the Stone personal
appearance, viewed as an aberration and not as leading to any new
tradition.
---------------------------------------------------------------------------
\35\ A. MASON, BRANDEIS: A FREE MAN'S LIFE 503-04 (1946).
---------------------------------------------------------------------------
Within the last few decades, the new custom for the modern nominee
is to walk the corridors of the Senate buildings and meet privately
with individual senators. Afterward, a senator may announce to the
press that the senator has had doubts answered (or not answered) and
will therefore support (or oppose) the nomination. Justice Sandra Day
O'Connor, for example, made various courtesy calls reported by the
press.\36\
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\36\ Judge O'Connor Talks with Potential Critics, N.Y. Times, July
18, 1981, at 24, col. 1; Mrs. O'Connor Makes the Scene, N.Y. Times,
July 19, 1981, Sec. IV, at 4, col. 2.
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Some commentators have criticized this new convention.\37\ What
exactly does the nominee say in private? The senators usually do not
tell us but merely make conclusory statements. Perhaps that is all that
was said. This practice now seems a permanent fixture.
---------------------------------------------------------------------------
\37\ E.g., Marcy, Nominees Shouldn't Pay Courtesy Calls on
Senators, N.Y. Times, July 29, 1981, at A23, col. 3.
---------------------------------------------------------------------------
With the advent of personal appearances before the Senate Judiciary
Committee, some people think that the senators would use the hearing to
glean some knowledge about the nominee's philosophy of constitutional
interpretation. Some commentators believe that an often unstated
purpose is to know something about how the nominee might decide a
controversial issue, such as search and seizure.
Yet, in spite of all the efforts to predict how nominees will rule
and in spite of the modern tools now used to try to divine how the
nominee will act once confirmed, the batting averages of presidents and
senators and the general public have been remarkably poor. We should
not be surprised that senators have been no more successful than
presidents in predicting how nominees will turn out. The same
president--Franklin Roosevelt--who nominated conservative Felix
Frankfurter to the Court also nominated liberal William O. Douglas. It
may be easier to predict stock market tops and bottoms than to predict
how nominees will rule.
The analogy between stock-market watching and Court watching is a
useful one. Some money managers develop good short-term records in
timing the stock market (i.e., deciding the best times to buy and sell)
and predicting the various turns in the market, but it is much harder
to develop a consistent long-term record. The market timer must know
not only when to sell (when the market is at the top), but also when to
buy.
Business school studies typically conclude that it is very
difficult--if not impossible--to consistently time and beat the market
over the long term. Similarly, it is extremely difficult--if not
impossible--to predict with any consistency how Court nominees will
turn out.
If a lot of predictions are made, some will be correct. Even a
stopped clock is right twice a day. But the president and the Senate do
not have the luxury of making a lot of predictions. A president may
have only one or two nominations to make (Jimmy Carter had none), and a
Supreme Court appointee may sit on the Court for decades. The margin of
error in making predictions must be remarkably small. History has shown
us that the margin of error is, in fact, quite high.
Joseph Story. Consider President James Madison's appointment of
Joseph Story in 1811. Why did Madison choose Story? Madison was a
member of the Democratic-Republic party. His mentor, Thomas Jefferson,
had defeated the last Federalist to hold the presidency, John Adams.
Story, like his father before him, and like Madison, was also a
DemocraticRepublican. President Madison probably expected that the
strong-willed Story, already a successful lawyer, politician, and legal
scholar, would serve as an intellectual counterweight to the views of
Federalist Chief Justice John Marshall. Yet, once on the Court, Story
often supported and expanded Marshall's views.\38\ Some contemporaries
concluded that he even outMarshalled Marshall.
---------------------------------------------------------------------------
\38\ See JOSEPH STORY'S COMMENTARIES ON THE CONSTITUTION, at pp. v-
xxii. (Ronald D. Rotunda & John E. Nowak eds. 1987).
---------------------------------------------------------------------------
Hugh Black. The difficulty in predicting a nominee's performance is
also well illustrated in more modern times by FDR's appointment of
Alabama senator Hugo Black. Black was generally viewed as a Roosevelt
crony. Black had enthusiastically supported Roosevelt's ill-fated
efforts to pack the Court. Black had even once been a member of the Ku
Klux Klan. Although he had resigned a dozen years before his Supreme
Court appointment, he still received an unsolicited membership card,
and many people charged that his resignation was opportunistic; a
leopard never changes his spots.\39\ But Black surprised his critics.
---------------------------------------------------------------------------
\39\ H. ABRAHAM, JUSTICES AND PRESIDENTS: A POLITICAL HISTORY OF
APPOINTMENTS TO THE SUPREME COURT 359 (2d ed. 1985).
---------------------------------------------------------------------------
If the Senators had tried to predict how Black would rule on racial
and free speech issues, they most certainly would have guessed wrong,
and we would have been deprived of one of the greatest Justices in our
nation's history.
Oliver Wendell Holmes. Even short-term predictions are often wrong.
President Theodore Roosevelt appointed Oliver Wendell Holmes to the
Court and thought he would strengthen federal power over interstate
commerce. In one of the first major opinions after Holmes was
appointed, the Court upheld federal power but Holmes dissented. T.R.
then announced that he ``could carve out of a banana a judge with more
backbone than that.'' \40\
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\40\ See RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW 171 (West
Group, 6`h ed. 2000).
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Modern Nominees. Dwight Eisenhower appointed William Brennan and
Earl Warren, both of whom turned out to be strong liberals. Sandra Day
O'Connor was considered a rightwing ideologue. Now the news media and
many commentators regard her as a leader of the moderates.\41\ O'Connor
has also upset those who have disagreed with her votes to allow
restrictions on the previously declared women's right to an abortion.
---------------------------------------------------------------------------
\41\ See, e.g., Galloway, Who's Playing Center, A.B.A.J., Feb. 1,
1988, at 42, 45.
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Some Court watchers believe that they can prophesy what a nominee
will do by looking at his record. This belief may be a factor
encouraging presidents to look primarily at lower-court judges when
choosing appointees to the High Court. However, like generals who are
always fighting the last war, past practices do not always control the
future. We can look to history not for prophecy, but for conjecture.
Judicial Philosophy
In recent times, Court watchers have also sought to focus on the
judicial philosophy of the nominee. Evidence that the nominee will seek
to look at the historical intention of the framers of our Constitution
is strong evidence, we are told, that the nominee will be too
conservative.\42\ For example, if a justice would claim that ``justices
are not platonic guardians appointed to wield authority according to
their personal moral predilections,'' many commentators would see such
a declaration as a code word for judicial conservatism. Yet the
language just quoted came from Justice William Brennan only a few years
ago, in 1985.\43\ Brennan, will go down in history as one of our most
influential justices. There are those who believe that the Senators
should look for code words or phrases to determine a justice's
philosophy and that Justice Brennan's reference to judicial restraint--
``justices are not platonic guardians''--should be the kiss of death.
These people would have voted against Justice Brennan.
---------------------------------------------------------------------------
\42\ See, e.g., M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN
RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING
BY THE JUDICIARY iX-X, 101-14 (1982) [judges should seek the ``right
answers'' by going ``beyond the value judgments established by the
framers of the written Constitution (extraconstitutional
policymaking)'']; L. TRIBE, AMERICAN CONSTITUTIONAL LAW iv (1978)
(judges should have a ``more candidly creative role'').
\43\ Justice William Brennan, quoted in N.Y. TIMES, Oct. 13, 1985,
at 36, col. 2.
---------------------------------------------------------------------------
Finally, when we seek to predict how a nominee will vote on the
Court, we should remember that predictions of what might happen later
this afternoon or tomorrow morning are easier than predictions of what
will happen in six months or six years.
The stock-market analogy is again instructive here. The amount of
money one can make in the market is usually quite limited if one's
horizon is measured in just hours or a few days. As finance studies
show, buying and holding stock for the long term is more profitable
than trying to guess the latest zig and zag in the market. The real
question is whether one can make money over the long term, and in order
to do that, one needs a long-term outlook. It is necessary to act like
an investor, not like a speculator.
If we treat the Supreme Court as an investment and not as a
speculation, then the president and the senators and the media as well
should worry less about how a nominee might vote on any particular
issue than about what they think of the nominee's personal integrity,
good faith, and intellectual ability.\44\ The alternative, trying to
predict how a justice will act on particular legal issues for 5 or 10
years from now is difficult, if not impossible. We do not know what the
major judicial questions will be 5or 10 years from now. We would be
even less successful in forecasting what the liberal or conservative
answers to those questions will be.
---------------------------------------------------------------------------
\44\ In the past, people have argued that Senators should reject a
nominee because they disagree with his politics. The history of these
instances should teach us to be more meek. Consider the extensive
criticism of Justice Brandeis: ``The senior Senator from Massachusetts
said of Brandeis that he `may be keen of intellect . . . but his record
impeaches him on far higher grounds than those of intellectual
ability.'' McDonald, Supreme Court Nominees: A Look at the Precedents,
WALL ST. J., Sept. 16, 1987, at col. 3 (Midwest ed.).
The President of the American Bar Association and six former ABA
Presidents agreed that Brandeis was ``not a fit person to be a member
of the Supreme Court.'' Id. See generally, A. MASON, BRANDEIS: A FREE
MAN'S LIFE 465-508 (1946); A. L. TODD, JUSTICE ON TRIAL: THE CASE OF
Louis D. BRANDEIS (1964).
---------------------------------------------------------------------------
President Bush has made several nominations already.\45\ Some
people have criticized some of them as possessing the wrong ideology. I
do not know how these nominees will vote on the bench in specific
cases, and I doubt that they do either. It is one thing to argue as an
advocate for a client and another to decide as a judge. It is one thing
to write an article about a legal issue and another to decide a
concrete issue with concrete parties.
---------------------------------------------------------------------------
\45\ In President Clinton's eight years in office (six of them with
a GOP Senate), Clinton had 377 of his judicial nominees confirmed.
President Reagan's record was only five higher at 382, despite the fact
that he also had 6 years with a GOP Senate. There are those who say
that some Republicans hindered President Clinton's appointments of
federal judges. Even if that charge is true--and I am sure some people
sincerely believe it--President Bush is hardly to blame. He was in
Texas attending to state business at the time. Nor are his nominees at
fault.
---------------------------------------------------------------------------
This simple fact is illustrated by no less a judicial titan than
Judge Henry Friendly, a great judge and prolific author. In one case,
when one of the parties cited to him one of his own articles indicating
how an issue should be decided, Judge Friendly decided that he
disagreed with what he himself had earlier written; the genius of the
common law system, as he recognized, is that judges must make the
decisions in the context of concrete cases, not in the context of law
review articles. Judge Friendly dissented,\46\ while the majority
relied Friendly's law review article.\47\
---------------------------------------------------------------------------
\46\ Williams v. Adams, 436 F.2d 30, 35 (2nd Cir. 1970)
(Friendly, J., dissenting). Judge Friendly (the Judge, not the author)
was vindicated when the Second Circuit, en banc, reversed the panel
decision, in 441 F.2d 394 (2d Cir. 1971) (per curiam). But the U.S.
Supreme Court agreed with Henry Friendly, the author, and not Henry
Friendly, the judge, as it reversed the Second Circuit. Adams v.
Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
\47\ Williams v. Adams, 436 F.2d 30, 34 n.2 (2nd Cir.
1970), quoting, Henry Friendly, The Bill ofRights as a Code of Criminal
Procedure, 53 CALIFORNIA LAW REVIEW, 929, 952 (October, 1965).
---------------------------------------------------------------------------
What I do know of President Bush's nominees is best expressed by
another excellent lawyer, Walter Dellinger, who was acting solicitor
general in the Clinton administration. After President Bush announced
his list, Mr. Dellinger said that, ``although he couldn't comment
knowledgeably on all the nominees, `this is a very strong list in terms
of professional qualifications.' In particular, he cited John Roberts,
a Washington lawyer and Supreme Court practitioner, and Michael
McConnell, a University of Utah law professor.'' \48\
---------------------------------------------------------------------------
\48\ Robert S. Greenberger, Bush To Send List of II Diverse
Nominees For US. Appeals Courts To Senate Panel, THE WALL STREET
JOURNAL, May 9, 2001.
---------------------------------------------------------------------------
Conclusion
As I have explained in this statement, the history of the
nomination and confirmation process supports the Senate's current
practice of focusing on a nominee's character and ability to follow the
law rather than his or her putative political ideology and reputed view
on particular politically hot topics of the day. The Senate should
continue to play the constitutionally mandated role of reasoned advisor
to the President, not prophet, seer, or investigative reporter.
Further, nominees should only promise the faithful performance of
their judicial duties. Hence, there should be no presumption against
confirmation if a nominee chooses not to answer a politically charged
question, or if question requires (or appears to require) the nominee
to promise to decide a legal question of particular way, or if he or
she believes an answer will compromise (or will appear to compromise) a
judge's ability to later make an independent law-based decision.
Nominees should not be judged or punished because of the clients that
they have represented.
The Twentieth Century has demonstrated that we have the best
judicial system in the world, bar none. The Senate has the weighty
responsibility to preserve it by not changing the ground rules as we
begin the Twenty-First Century.
Chairman Schumer. Thank you, Professor Rotunda, for your
succinct and pointed testimony.
Next is Judith Resnik. Judith Resnik is the Arthur Liman
Professor of Law at Yale Law School. We have never met, but
Arthur Liman was a mentor to me. I didn't know that until I
read this, but double welcome.
She is also a graduate of Bryn Mawr College and the New
York University School of Law. She chairs the Federal Courts
Section of the American Association of Law Schools, serves on
the ABA Standing Committee on Judicial Improvements, and is a
member of the American Academy of Arts and Sciences. She is
also an occasional litigator in the Federal courts, including
the United States Supreme Court. In addition to being the
coauthor of a leading civil procedure textbook, she has written
extensively on the role of the Federal judiciary in the 20th
century.
Professor Resnik, your entire statement is read into the
record. Please proceed.
STATEMENT OF JUDITH RESNIK, PROFESSOR OF LAW, YALE LAW SCHOOL,
NEW HAVEN, CONNECTICUT
Ms. Resnik. Thank you for inviting me to testify. I want to
address in these moments two burdens, the burden on the nominee
to demonstrate qualifications to serve as a Federal judge and
the burden on this Senate as a practical matter to discharge
its constitutional obligations of advice and consent.
First, the burden on the nominee. No person is entitled to
a life-tenured judgeship. It is a unique charter in this
polity. Federal judges ought not to be appointed to be a part
of the President's team. That they have the President's
endorsement should never be enough alone to turn someone into
an Article III judge.
I am using the words ``Article III judge'' deliberately
because I want to draw your attention to all of the life-
tenured judiciary, trial and appellate, as well as the Supreme
Court. And, here, I will disagree with Senator Simon. There
were 300,000 cases filed, a bit more than that, in Federal
courts last year, 14,000 trials, 7,000 trials by juries and a
comparable number by trial judges. As Senator Thompson told us,
trial judges are central, powerful decisionmakers. They
interpret laws, they understand facts. They put weight on some
facts and not on the others.
District Courts are not only our courts of first instance,
but by and large, for most people they are the courts of last
instance. From about 300,000 trial level cases, some 60,000
appeals are filed. The U.S. Supreme Court decides only about 75
cases a year. So trial and appellate court judges are the
judges for our people. Article III judges are at all levels and
I hope you will have the energy to take seriously each and
every nomination.
Now, there has been a question here about ground rules. The
Federal judiciary is changing the ground rules. Tomorrow, I
begin a first-year procedure class. I will have to report to my
new students that a black-letter rule of law with which I grew
up, that courts held a presumption that congressional statutes
were entitled to deference and were, expected to be
constitutional--that black-letter rule is no longer the rule.
This Supreme Court, by a bare 5-4, time and again, has not
accorded the deference due to this body in its lawmaking
function. Simply put, Congress has less Commerce Clause powers
than it had in 1994. Of the 11th Amendment and 14th Amendment,
the same can be said.
At issue are not just constitutional rights, but statutory
rights. Recently, we have seen the Federal bench start to treat
the Congress as a wayward lower district court, or worse.
District Court findings cannot be set aside unless clearly
erroneous. Congressional findings have been given less respect
in some instances.
This is a time to appreciate that the federal courts are
engaged in affecting the meaning and allocation of power in the
U.S. Federal system. Some of our trial judges, our life-tenured
district court judges, are out ahead of the Supreme Courts
interms of narrowing Congressional powers. For example, take
the Child Support Recovery Act, passed in 1992, providing that
if debt is owed across State lines because of failure to
support children, criminal offense may have occurred. Some
lower court judges have said that this kind of debt is not
within the scope of Congressional commerce powers.
We also have lower court judges saying the Family and
Medical Leave Act cannot be applied against States in
particular fashions. We have lower court judges saying that
when Congress passes an Act under the Spending Clause, that is
not a ``law'' for purposes of the supremacy of Federal law.
So, point one: discussion today has focused on whether this
Committee is changing the rules. There are new rules, but they
come from the courts, not this Committee, and those new rules
are being applied against the Congress.
Point two: the job of the Federal judiciary has changed
over the last three decades because, in addition to life-
tenured Article III judges, we now have bankruptcy and
magistrate judges sitting within the life-tenured Article III
courts. I don't have a blue and red chart, such as those
provided by others, but I did append a chart in my testimony.
You will see fromit about 845 magistrate and bankruptcy judges,
statutory judges that sit for limited but renewable terms now
at the trial level, along with 646 trial-level life-tenured
judges.
So Article III judges don't just adjudicate. They select a
group of people, their statutory siblings, who are now larger
in number than the number of authorized trial level judgeships.
That means that life-tenured judges can reproduce themselves.
So when you confirm one judge, you are confirming more, because
magistrate judges are selected by the district courts and
bankruptcy judges by the appellate courts. In 6 Federal
district courts in the winter of 2001, the number of magistrate
judges was greater than that of life-tenured judges; in 16,
their numbers were equal.
So the second reason for careful scrutiny: the Senate is
not just confirming one judge; you are picking judges who now
have powers of selection, appointment, and reappointment.
The third point: life-tenured judges have changed the job
in another respect. Starting in the last two or three decades,
the Federal judiciary has become active in using its corporate
voice, taking on the role as an Article III adviser to
Congress. The judiciary has started issuing policy statements
advising Congress about whether to create new causes of action.
If someone asks--does the Federal judiciary have an
ideology? To answer one must look not only at published
opinions. One must also read the Long-Range Plan of the Federal
courts. Recommendation one of about 90 recommendations is the
presumption against the creation of new Federal rights, new
civil causes of action, new criminal causes of action. The
Judicial Conference of the United States now lobbies,
attempting to influence policy decisions. Currently, it urges
that a presumption against the creation of new rights.
Given that the judiciary has taken up these three roles:
advisor to Congress, appointer of other judges, overseer of
Congress, it has never been more important for the Senate to
think hard and long about who ought to be joining the bench.
The burden ought to be on the person seeking to join the bench.
Then, turn to the question about how the Senate exercises an
active role. There is an aura of apology around, as if to say:
``Oh, dear, isn't it too bad that the Senate is doing this? ''
I think it is time to stop apologizing. This is one of many
great places to develop norms about who we are in the United
States, about what we do value, about what we do care.
Take the example of women's rights. Up until 1970, it
wasn't discussed in nomination hearings. In the 1970's, it was
mentioned, but not important at all. Not until 1987 did it
become an aspect of what is expected of people who seek to join
the life-tenured bench--that they be fully committed to equal
rights for all of us here.
Now, I want to turn to the question of how the Senate
discharges its burden. I want to respond to the concern about
logistics. I have a practical suggestion, which is that you
could develop an advisory Committee of lawyers and citizens,
not just lawyers, to help advise this body as it goes about
learning about judicial nominees. This proposal is akin to that
used by many Senators, who rely on merit selection committees;
Governors and States do so as well. Augment your resources:
bring in the public. Make it a group of people who can help
advise you on these questions.
Now to the question, of whether to ask about judicial
nominees' attitudes--call them philosophy, ideology, activism,
call it jurisprudential views. This is exactly the question
that needs to be asked: Who are these people? What are their
attributes? Answers ought not to rely only on the back-and-
forth, stylistic questioning. What have they done in their
life?
The word ``mensch,'' a Yiddish word is apt here. It means
that a person is good person in the world. In this context the
focus ought to be on wheather nominees have, for example,
provide free legal services to people who need them, or whether
they joined in the enterprise of helping this country be true
to its values by making the courts accessible to all, such as
whether, they have dealt with problems of handicapped access to
the courts, or dealt with problems of bias in the courts. There
are hundreds of opportunities for we who are lawyers, law
professors and a part of this community to volunteer our time
and our energy. You can look objectively at what choices
nominees have made as lawyers in this world.
Thank you.
[The prepared statement of Ms. Resnik follows:]
Statement of Judith Resnik, Arthur Liman Professor of Law, Yale Law
School
Thank you for inviting me to testify. I applaud the Committee for
taking the time to reflect on its role in the confirmation' process.
I will speak to two issues: (a) the major transformations within
the federal courts during the last half-century that have augmented the
powers of life tenured judges, and (b) the contributions that the
Senate has made and ought to continue to make when discharging its
constitutionally-mandated role of evaluating individuals proposed for
life tenured judgeships.
The Federal Courts Today
Article III judges are unique in this constitutional democracy as
they hold their charter for life. Those selected and confirmed to serve
must, therefore, be individuals in whom all can have confidence.
I use the term ``Article III judges'' deliberately, as I hope that
your attention and your energies will not be focused exclusively on
nominees to either the Supreme Court or the appellate courts. Life
tenured district judges are critical and powerful actors as well, and
their appointments also merit your full consideration.
Indeed, the saliency and import of the federal judiciary has grown
substantially over the twentieth century, with an increase in the
number of life tenured judges and with an increase in their docket.
Recall that one hundred years ago, in 1901, some 70 district judges sat
throughout the country, with a single judge serving entire states, such
as Maryland, Massachusetts, and Indiana.
Today, more than 650 authorized judgeships exist in the district
courts. In addition, some 180 appellate court judgeships are
authorized, and hundreds of senior Article III judges augment this work
force.
During the second half of the twentieth century, Congress also
authorized two new sets of federal judges--magistrate and bankruptcy
judges. These judges sit within the Article III judiciary but do not
have life tenure and constitutionally protected salaries; rather they
serve for renewable terms. Today, more than 450 magistrate and 325
bankruptcy judges join district judges at the trial level. For clarity,
I shall refer to the life tenured federal judges as our constitutional
federal judges, and to those judicial officers who work within our
Article III courts but without constitutional guarantees as statutory
federal judges.
In short, the federal judiciary today looks vastly different than
it did, even fifty years ago. Congress has played a central role in
this expansion--by authorizing new life-tenured judgeships, by creating
auxiliary, statutory judgeships and periodically enlarging their
mandates, and by giving new work to the federal courts. According to
the Administrative Office of the United States Courts, between 1974 and
1998, more than 470 new causes of action were created.\1\
\1\ Administrative Office of the U.S. Courts, Revision of List of
Statutes Enlarging the Court Workload (Sept. 17, 1998) (memorandum).
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As a consequence, constitutional judges today have three tasks:
First, as is familiar, they adjudicate, and their
rulings touch our lives in a myriad of ways. Today, the federal
judiciary's profile is especially high, with recent rulings
that have held unconstitutional several federal statutes.
Second, constitutional judges now have the
responsibility of selecting statutory judges. The district
court selects and then decides whether to reappoint magistrate
judges; the appellate courts do the same for bankruptcy judges.
Recall the numbers; the constitutional trial bench is now
somewhat smaller in number than its statutory siblings \2\
Indeed, as of 2001, in six district courts, the number of
magistrate judges was greater than that of life tenured judges;
\3\ in another sixteen, their numbers were equal.\4\
Constitutional judges are thus responsible for the selection,
appointment, and reappointment of more than 700 statutory
judges. Those chosen to be our constitutional judges therefore
not only shape the law through adjudication; they also shape
the law by deciding who will serve as our statutory judges.
\2\ See Chart I, Authorized Trial Level Federal Judgeships in
Article III Courts, Nationwide (1999), appended.
\3\ As of January 2000, those districts were: the Middle and
Southern Districts of Alabama, the Western District of New York, the
Eastern and Southern Districts of California, and the Western District
of Texas. Telephone interview with staff, Magistrates Division,
Administrative Office of the U.S. Courts (Jan. 9, 2001).
\4\ Those districts were in New Mexico, Arizona, the Northern
District of New York, the Virgin Islands, the Western District of North
Carolina, the Middle District of Louisiana, the Northern District of
Mississippi, the Western District of Michigan, the Eastern District of
Arkansas, the Northern and Southern Districts of Iowa, North Dakota,
Idaho, Montana, Oregon, and the Southern District of Georgia. Telephone
Interview with staff, Magistrates Division, Administrative Office of
the U.S. Courts (Jan. 9, 2001).
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Third, the life-tenured judiciary has, over the course
of the last several decades, taken it upon itself to advise
Congress about the desirability of creating new causes of
action, both civil and criminal. That role is new and
represents a change in attitude. In the earlier part of the
century, the life tenured judiciary thought it inappropriate to
provide this form of collective advice on matters of
legislative policy.\5\ Now, however, through the Judicial
Conference of the United States, the Article III judiciary
relies on its corporate voice to promote the use of the federal
courts for certain matters and not for others.\6\ On several
occasions, it has urged this Congress not to enact certain
causes of action.\7\ Constitutional judges have thus taken on a
lobbying role, pressing this Congress to enact legislation that
comports with a very particular and narrow view of the role of
the federal courts.
---------------------------------------------------------------------------
\5\ Individual judges and justices have, in contrast, often
provided their views. See EDWARD PURCELL, BRANDEIS AND THE PROGRESSIVE
CONSTITUTION: ERIE, THE JUDICIAL POWER & THE POLITICS OF THE FEDERAL
COURTS IN TWENTIETH CENTURY AMERICA (2000).
\6\ See, e.g., THE JUDICIAL CONFERENCE OF THE UNITED STATES, LONG-
RANGE PLAN FOR THE FEDERAL COURTS, reprinted at 166 F.R.D. 49 (1995).
\7\ For example, the Judicial Conference warned against enactment
of Y2K legislation; it also initially opposed the Violence Against
Women Act and then, in 1993, decided to take no position. See Judith
Resnik, The Programmatic Judiciary: Lobbying, Judging, and Invalidating
the Violence Against Women Act, 74 SO. CAL. L. REV. 269 (2000). See
also Judith Resnik, Trial as Error, Jurisdiction as Injury:
Transforming the Meaning of Article III, 113 HARV. L. REV. 925 (2000).
In sum, when asked to think about whether the current federal bench
has a point of view, Congress should turn not only to the judgments
rendered but also to the policy positions taken. In 1995, the Judicial
Conference of the United States, in its first-ever long-range plan,\8\
urged Congress to limit access to the federal courts and to have a
presumption against the creation of new civil causes of action and new
criminal protections for citizens. And beginning that very same year,
the United States Supreme Court, in a series of 5-4 rulings, held
unconstitutional criminal and then civil causes of action that this
Congress had enacted.\9\ The voices that now dominate the federal
judiciary surely have a particular ideological stance--against the use
of the federal courts for the protection of a wide range of rights and
against the enactment by this Congress of new rights for Americans.
---------------------------------------------------------------------------
\8\ See note 6, supra.
\9\ See, e.g., United States v. Lopez, 514 U.S. 549 (1995); United
States v. Morrison, 529 U.S. 598 (2000).
---------------------------------------------------------------------------
Given the multiplying of roles for life tenured judges and the
increasingly consistent anti access approach of many sitting jurists,
the question of selection of constitutional judges has never been more
important. And, given the close divide at the last election and the
current split in government, it is incumbent on the Senate to ensure
that the federal judiciary as a whole reflects the breadth of concerns
in this polity.
The Senate's Role: Reflecting and Articulating Legal Norms and Values
A first question posed for these hearings is about the Senate's
role, and specifically whether the Senate ought to consider the
attitudes, judicial philosophy, and ideology of nominees. The Senate's
historical practices make plain that it has done so in the past.
I hope I can help make clear that considering the bedrock views of
nominees is not only common and unavoidable (albeit often done
implicitly) but also to be celebrated as contributing to our legal
norms. When attitudes are widely shared, they are not perceived to be
``ideology.'' Only when norms and values are contested do we think of a
set of questions as touching on ideology. The nominations of judges is
one place in which legal norms are expressed--and, equally importantly,
developed. Through hearings such as this set and those of individual
nominees, we learn about and we develop this nation's values.
The important contribution of the Senate--and the work yet to be
done--can be illustrated by a brief review of when the question of
women's rights became a part of discussions at nominations. It was not
until 1970 that a nominee, George Harrold Carswell, was questioned
about his attitudes towards women.\10\ Congresswoman Patsy Mink from
Hawaii called the nomination of Carswell ``an affront to the women of
America;'' she cited his role in a case upholding the refusal to employ
women with children of pre-school age, although men with children of
pre-school were so employed.\11\ When Senator Birch Bayh of Indiana
asked Judge Carswell to address ``the impression that [Carswell was]
not in favor of equal rights for women,'' Carswell responded that he
was committed to the enforcement of the ``law of the land.'' \12\
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\10\ Over the past 200 years, some 140 individuals have been
nominated to the Supreme Court. See THE OXFORD COMPANION TO THE SUPREME
COURT OF THE UNITED STATES at 965-971 (Kermit L. Hall ed., 1992).
Information about nominations first became generally available in 1916,
when the Senate Judiciary Committee held public hearings and published
a report on the nomination of Louis D. Brandeis, the first Jewish
justice on the Supreme Court. See Preface to Volume I, ROY M. MERSKY &
J. MYRON JACOBSTEIN, THE SUPREME COURT OF THE UNITED STATES: HEARINGS &
REPORTS ON SUCCESSFUL AND UNSUCCESSFUL NOMINATIONS OF SUPREME COURT
JUSTICES BY THE SENATE JUDICIARY COMMITTEE (Hein, 1977 & supp.) (16
volumes compiled by Mersky and Jacobstein). For an understanding of the
confirmation process during the nineteenth century, the records of
which can be found in the National Archives, see John P. Frank, The
Appointment of Supreme Court Justices: Prestige, Principles, and
Politics, 1941 WIS. L. REV. 172 (part I), 343 (part II); 461 (part III)
(addressing late nineteenth as well as twentieth century appointments).
While public hearings occurred in the Brandeis nomination, Brandeis
himself did not testify. Harlan F. Stone was the first, in 1925, to
testify on his own behalf before the Senate's Committee on the
Judiciary. Id. According to the Committee notes, the invitation was
extended at 10:00 a.m., and Mr. Stone, then
Attorney General, appeared at 11:30; ``he was interrogated by a
number of the members of the Committee. The proceedings are in the form
of transcript, taken by a stenographer.'' Special Meeting of the Full
Committee on Stone Nomination, Jan. 28, 1925, Committee on the
Judiciary, U.S. Senate, Minutes, 1923-25, 68th Cong., Records of the
U.S. Senate, Record Group 46, National Archives (Washington, D.C.).
However, that testimony is not reproduced in the Mersky and Jacobstein
compilation nor listed as available in the Library of Congress
holdings. Transcripts are also not readily available from the period
when women's suffrage was much before the public, culminating in the
passage of the Nineteenth Amendment in 1920. Moreover, according to
Mersky and Jacobstein, not all of the Senate Judiciary Committee
proceedings since then have been made public.
In the later part of the twentieth century, more research materials
became available. A review of hearings on Supreme Court nominees
beginning in the 1960s reveals that the first questioning about women's
rights occurred at the Carswell hearings. See Hearings before the
Committee on the Judiciary on the Nomination of George Harrold Carswell
of Florida, to Be an Associate Justice of the Supreme Court of the
United States, U.S. Senate, 91st Cong., 2d Sess. (January 27, 28, 29,
February 2 and 3, 1970) [hereinafter Carswell Hearings].
\11\ Carswell Hearings, supra note 10, at 81-82. Carswell's role in
that case was quite limited; he was a member of an en banc panel that
denied rehearing in Phillips v. Martin Marietta Corp., 416 F.2d 1257
(5th Cir. 1969) (en banc), in which Ida Phillips claimed that the
company had violated her Title VII rights by declining to give her, a
mother of pre-school age children, a job not denied men with pre-school
age children. The Fifth Circuit concluded that the policy did not
discriminate against women but was based upon ``the differences between
the normal relationships of working fathers and working mothers to
their pre-school age children.'' Phillips v. Martin Marietta Corp., 411
F.2d 1, 4 (5th Cir. 1969). That decision was reversed and remanded by
the Supreme Court. Phillips v. Martin Marietta Corp., 400 U.S. 542, 544
(1971).
\12\ Carswell Hearings, supra note 10, at 40-41.
---------------------------------------------------------------------------
The Carswell nomination was rejected, but not because of Carswell's
views on women's role in society.\13\ The following year, when William
Rehnquist and Lewis Powell were nominated to be associate justices,
several witnesses objected to both nominees' attitudes towards women's
rights.\14\ While such testimony prompted Senator Bayh to ask William
Rehnquist about his views on equal rights for women,\15\ no such
questions were addressed to Lewis Powell.\16\ A nominee's attitudes
towards women's rights played a minor role in the hearings, and did not
become a subject of analysis by those commenting on the nomination
process.\17\
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\13\ According to one historian of the proceeding, criticism of
Carswell centered on his general lack of distinction as well as his
1948 pro-segregation stance, later repudiated. See, e.g., JOHN P.
FRANK, CLEMENT HAYNSWORTH, THE SENATE, AND THE SUPREME COURT 103-106
(1991). Frank noted Congresswoman Mink's opposition, but in his view,
the ``real sticking points were civil rights and competence.'' Id. at
113. Frank also discussed the political context, a democratically-
controlled Senate distressed at the forced resignation of Abe Fortas,
which animated the unsuccessful nomination of Clement Haynsworth (in
Frank's view, unfortunately rejected) as well as that of Carswell (in
Frank's view, appropriately rejected). Id. at xiv. 19, 28, 44, 94-95,
102-03. In May 1970, the Senate approved, with 94 affirmative votes
(and 6 absentees), the nomination of Harry Blackmun as an associate
justice. Id. at 124. No questions were addressed to Blackmun about his
views on women's rights during the brief one-day hearing. Hearings
before the Committee on the Judiciary, U.S. Senate on Nomination of
Harry A. Blackmun to be an Associate Justice of the Supreme Court of
the United States, U.S. Senate, 91 st Cong., 2d Sess. (Apr. 29, 1970).
\14\ See Hearings before the Committee on the Judiciary, United
States Senate, on the Nominations of William H. Rehnquist, of Arizona,
and Lewis F. Powell, Jr., of Virginia, to Be Associate Justices o/the
Supreme Court of the United States, U.S. Senate, 92d Cong., 2d Sess.
(November 3, 4, 8, 9, and 10, 1971) [hereinafter, Rehnquist and Powell
Hearings]. Objections were raised about William Rehnquist's testimony
while he was in the Justice Department on the Equal Rights Amendment
(ERA) and the Women's Equality Act (id. at 428-29) and about Lewis
Powell's failure, as a leader of the American Bar Association, to take
stands on issues affecting women. Id. at 423-25, 428-33, 433-36. See
also testimony of Catherine G. Roraback, president of the National
Lawyers' Guild, id. at 460 (under Powell's leadership, the ABA was
silent on equal rights for women). Barbara Greene Kilberg, of the
National Women's Political Caucus, testified not about the nominees but
about the absence of a female nominee (id. at 421-23), a topic that had
been in the news, prompted in part because of President Nixon's
statements that ``qualified women'' should be considered for the two
vacancies. James M. Naughton, Harlan Retires, N.Y. TIMES, Sept. 24,
1971, at 1.
\15\ In 1971, as Assistant Attorney General in the Nixon
administration, Rehnquist had testified before the House Judiciary
Committee; the testimony is somewhat ambiguous but in some respects
supported the ERA. See Federal Rights for Men and Women 1971, Hearings
before Subcommittee No. 4 of the Committee on the Judiciary on H.J. 35,
208, and Related Bills, House of Rep., 92d Cong., 1 st Sess. 323 (1971)
(Representative Wiggins noting that while the ``administration is
positively committed to the support of this constitutional amendment,''
it also said that the amendment was ``not necessary'').
When testifying as a nominee to be an associate justice before the
Senate Judiciary Committee, William Rehnquist declined to state his
personal view on the ERA. When asked his view on the rights of women
under the Fourteenth Amendment, he responded that it ``protects women
just as it protects other discrete minorities, if one could call women
a minority.'' Rehnquist and Powell Hearings, supra note 14, at 163.
Thereafter, noting that some of the issues were pending before the
Court, he declined to address additional questions on women's rights.
Id. at 164.
\16\ According to a biography of Justice Powell, when confronted by
``a group of women's rights activists,'' he responded: ``Ladies, I've
been married for thirty-five years and have three daughters. I've got
to be for you.'' JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR.
233 (1994). As Professor Jeffries describes it, the ``crucial issue was
not gender but race.'' While Justice Powell had resigned his
memberships in all-white clubs, concern was raised about his role in
the ``(non)desegregation of the Richmond schools.'' Justice Powell's
defense was to rely on endorsements by a variety of individuals
attesting to his efforts to respond calmly to the complex problems of
school integration, his work with the all-black National Bar
Association, and his commitment to fairness. Id. at 235-236.
\17\ See, e.g., HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS: A
POLITICAL HISTORY OF APPOINTMENTS TO THE SUPREME COURT, 20-22 (3d ed.
1992); Hearings before the Committee on the Judiciary on the Nomination
of John Paul Stevens to Be a Justice of the Supreme Court, U.S. Senate,
94th Cong., 1 st Sess. (Dec. 8, 9, 10, 1975); Hearings before the
Committee on the Judiciary on the Nomination of Judge Antonin Scalia,
to Be Associate Justice of the Supreme Court of the United States, U.
S. Senate, 99th Cong., 2d Sess. (Aug. 5, 6, 1986) [hereinafter Scalia
Hearings]; Hearings before the Committee on the Judiciary on the
Nomination of Justice William Hubbs Rehnquist to Be Confirmed as Chief
Justice of the U. S. Supreme Court, 99th Cong., 2d Sess. 114 (July 29,
30, 31, Aug. 1, 1986).
The nominees did not respond with detailed defenses or point to
their efforts to enhance women's participation in the political,
economic, and social life of the country. Indeed, Justice Scalia
defended his membership in an all-male club on the grounds that
although the club did discriminate by excluding women, that form of
discrimination was not ``invidious.'' See Scalia Hearings at 91 (also
commenting that a judge should not belong to a club that ``practices
invidious discrimination''). Justice Scalia resigned his membership in
that club; he explained that several factors influenced his decision,
including that ``I was uncomfortable at doing something which, although
I thought it was perfectly OK, was offensive to friends whose feelings
I am concerned about.'' Id. at 105.
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The hearings on the nomination of Robert Bork, in 1987, were the
first in which women's issues moved to center stage and became relevant
to the outcome.\18\ Many witnesses questioned Judge Bork's
interpretations of constitutional doctrine to exclude women from
heightened protection under the Fourteenth Amendment,\19\ as well as
his decisions in nonconstitutional cases. Judge Bork's opinions caused
concern about his capacity to appreciate problems from the perspectives
of women litigants.\20\ While many factors contributed to Judge Bork's
rejection, his belief that discrimination against women was not
directly prohibited by the Equal Protection Clause of the Fourteenth
Amendment,\21\ his opposition to the Equal Rights Amendment,\22\ and
his narrow construction of statutory rights for women played an
important part.
---------------------------------------------------------------------------
\18\ See generally ETHAN BRONNER, BATTLE FOR JUSTICE: HOW THE BORK
NOMINATION SHOOK AMERICA (Norton, 1989); Martin Shapiro, Interest
Groups and Supreme Court Appointments, 84 NW. U.L. REV 935 (1990).
\19\ Hearings before the Committee on the Judiciary on the
Nomination of Robert H. Bork to Be Associate Justice of the Supreme
Court of the United States, 100th Cong., 1st Sess. 160-161 (Sept. 15-
30, 1987) [hereinafter Bork Hearings]. One case that received attention
was Griswold v. Connecticut, 381 U.S. 479 (1965), which involved a
challenge to a statute making it a crime to prescribe contraceptives.
Robert Bork had called the statute a ``nutty law,'' and then, at the
hearings, described the case as an ``academic exercise.'' Bork Hearings
at 114, 240-243; Stuart Taylor, Jr., The Bork Hearings: Bork Tells
Panel He Is Not Liberal, Not Conservative, N.Y. TIMES, Sept. 16, 1987,
at A1, col. 6. See generally Andi Reardon, Griswold v. Connecticut:
Landmark Case Remembered, N.Y. TIMES, May 28, 1989, at 12CN, p.6, col.
5 (describing the efforts of Estelle Griswold and Charles Lee Buxton to
lobby the Connecticut legislature to repeal that law and their
subsequent arrest for operating a clinic that openly dispensed
contraceptives to poor women; Yale law professor Thomas Emerson, who
had argued the case, explained its import as one of the early
recognitions of a constitutionally based right to privacy).
\20\ For example, while on the Court of Appeals for the District of
Columbia, Judge Bork wrote a unanimous opinion for a panel of three
judges in which that court upheld, against a challenge under the
Occupational Safety and Health Act, a company policy that required
women of childbearing potential to be sterilized if they wanted to hold
jobs exposing them to chemicals alleged to cause harm to reproductive
capacities. Oil, Chem. and Atomic Workers Int'1 Union v. American
Cyanamid Co., 741 F.2d 444 (D.C. Cir. 1984). Judge Bork's opinion
described the company's plan as an attempt to deal with ``unattractive
alternatives'' and wrote that rather than firing women, the company had
given them ``a most unhappy choice'' of sterilization. Id. at 445, 450.
At the confirmation hearings, the question was whether Bork's
discussion evidenced understanding of the stark options put to women
workers: be fired, demoted, or sterilized. When questioned, Judge Bork
commented that ``some of [the women], I guess, didn't want to have
children.'' Bork Hearings, supra note 18, at 468. Compare SUSAN FALUDI,
BACKLASH: THE UNDECLARED WAR AGAINST AMERICAN WOMEN 450 (1991) (quoting
Betty Riggs's letter to the Senate: ``Only a j udge who knows nothing
about women who need to work could say that. I was only twenty-six
years old, but I had to work, so I had no choice . . . . This was the
most awful thing that ever happened to me. I still believe it was
against the law, whatever Bork says''). In 1991, the United States
Supreme Court ruled that, given evidence of the potential for harm to
the reproductive systems of both men and women if exposed to lead,
Title VII and the Pregnancy Disability Act prohibit employers from
banning only women of childbearing capacity from certain jobs. See
Int'1 Union, United Auto., Aerospace & Agric. Implement Workers of
America v. Johnson Controls, 499 U.S. 187 (1991).
Further, the Bork Hearings also addressed an opinion by Judge Bork
on sexual harassment, in which he had written about ``sexual
dalliance'' and ``sexual escapades,'' choosing language that could be
read as making light of an atmosphere in which sexual compliance was
allegedly required. Vinson v. Taylor, 760 F. 2d 1330, 1330, 1332 (D.C.
Cir. 1985) (Bork, J., dissenting from the suggestion for rehearing en
banc), panel opinion affd in part and rev'd in part sub nom. Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986).
\21\ Judge Bork argued that the Fourteenth Amendment was addressed
to race and ethnicity, not to gender, and that rules relating to race
should not and could not be transposed to gender, because ``our society
feels very strongly that relevant differences exist and should be
respected by government'' (referring to single-sex bathrooms and women
in combat). See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL
SEDUCTION OF THE LAw 328-331 (1990).
\22\ Bork Hearings, supra note 19, at 161-162 (Bork explained that
his opposition was not heated; he had not ``campaigned'' against the
ERA, but he did believe it would be inappropriate to ``put all the
relationships between the sexes in the hand of judges.'').
---------------------------------------------------------------------------
The effects were visible three months later, when Anthony Kennedy
was before the Senate seeking confirmation to the seat denied Judge
Bork. The discussion of women's concerns took a notably different turn.
Judge Kennedy made a point of affirming his commitment to women's
rights. He explained in some detail his growing understanding of the
issue; he described his unsuccessful efforts to change the policy of
the all-male club to which he had belonged and his subsequent
resignation.\23\ As he put it, ``Over the years, I have tried to become
more sensitive to the existence of subtle barriers to the advancement
of women and minorities in society. This was an issue on which I was
continuing to educate Myself'' \24\ Similarly, in 1990, when David
Souter was questioned by the Senate Judiciary Committee about sex
discrimination, he rejected the application of only a rational basis
test to sex discrimination, and he noted the ``difficulty'' with the
``looseness'' of the ``heightened scrutiny'' standard applied to
discrimination on the basis of sex.\25\
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\23\ Hearings before the Committee on the Judiciary on the
Nomination of Anthony M. Kennedy to Be Associate Justice of the Supreme
Court of the United States, U.S. Senate, 100th Cong., 1st Sess. 23
(Dec. 14, 15, 16, 1987) at 104-11.
\24\ Id. at 105.
\25\ Hearings before the Committee on the Judiciary on the
Nomination of David H. Souter to Be an Associate Justice of the Supreme
Court of the United States, U.S. Senate, 101st Cong., 2nd Sess. 75-76,
106 (Sept. 13, 14, 17, 18, 19, 1990). Judge Souter responded generally
to questions about women's rights with discussion of the legal tests
that govern the Equal Protection Clause and privacy. Id. at 53-57.
Senatorial concern about these issues is also evident in the Senate's
report on the nomination; in his ``additional views'' on the
nomination, Senator Biden noted that Souter had demonstrated a
``commendable concern'' for ensuring sufficient constitutional
protection for women's rights. NOMINATION OF DAVID H. SOUTER TO BE AN
ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT, S. EXEC. REP.
101-32, 101 st Cong., 2d Sess. 28-30 (Oct. 1, 1990).
---------------------------------------------------------------------------
With this review of questions put to Supreme Court nominees over
the past two decades, one can learn something about the useful role
that ``ideology'' played and the contributions that the Senate has made
through the hearing process. Up until 1970, women were invisible in the
hearings. Then, during the 1970s and through most of the 1980s, women
were but a minor footnote. The change comes in the late 1980s. Through
nomination hearings, as well as through several pieces of legislation,
the Senate has helped women to become equal rightsholders under the
United States Constitution.
I wish I could report that the work is over. But the substance of
those rights remain in dispute, and some of the nominees who will come
before you are likely to support women's rights only at a very general
level of abstraction. In 1994, Congress enacted a major civil rights
act for women, the Violence Against Women Act; in 2000, by a 5-4
majority, the Court found one section of it unconstitutional.\26\ Lower
courts are concluding that the Family and Medical Leave Act cannot be
applied against states and finding the Child Support Recovery Act
beyond Congress's power.\27\ And, last term, the Supreme Court, 5-4,
upheld the constitutionality of differential treatment of children
depending on whether their mother or their father is a citizen of the
United States.\28\ At issue in case after case are women's rights to
privacy, to be free from violence, to be both wage-workers and care-
givers. Debate continues about what level of scrutiny applies to
gender-based classifications. Therefore, as each and every nominee
comes up for appointment, to the district or the appellate courts, the
Senate must continue its work of shaping legal norms to ensure women's
equality.
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\26\ United States v. Morrison, 529 U.S. 598 (2000) (holding that
Congress lacked power under either the Commerce Clause or the Equal
Protection Clause to enact 42 U.S.C. Sec. 13891, the Civil Rights
Remedy.) The remainder of this legislation remains, and in 2000,
Congress reauthorized its many important provisions.
\27\ See, e.g., Chittister v. Dep't of Community and Economic Dev.,
226 F. 3d 223 (3d Cir. 2000); Sims v. University of Cincinnati, 219
F.3d 559 (6th Cir. 2000) (both Family and Medical Leave Act); United
States v. Faasse, 227 F. 3d 660 (6th Cir. 2000), vacated en banc, 234
F. 3d 312 (6th Cir. 2000) (decision en banc pending); United States v.
King, 2001 WL 111278 (S.D.N.Y. Feb. 8, 2001) (both Child Support
Recovery Act).
\28\ See Nguyen v. INS, 121 S. Ct. 2053 (2001).
---------------------------------------------------------------------------
More generally, the Senate should view the nomination process as an
important venue for discussions of equality in the courts, in terms of
the demography of the judiciary, treatment of litigants, lawyers, and
witnesses, and the legal doctrine. One obvious concern is for
diversifying the judicial work force so that those who sit in judgment
reflect more of the characteristics of those whom they judge. And here
again, while some progress has been made, more is needed. It is not
that the struggle for what Judge Leon Higginbotham has called
``judicial pluralism'' \29\ has been won or that affirmative efforts to
do so are popular, but that hostility to pluralism is no longer
plausible. Whether from the left or the right, political parties speak
of the need for inclusion, as they prominently display individuals of
both sexes and of a variety of races and ethnicities as emblems of
their commitment to inclusion.
---------------------------------------------------------------------------
\29\ See A. Leon Higginbotham, Jr., Seeking Pluralism in Judicial
Systems: The American Experience and the South African Challenge, 42
DUKE L. J. 1028 (1993).
---------------------------------------------------------------------------
But what does diversity mean, and is inclusion enough? The Senate
should be concerned not only that women and men ofall colors come
before it as nominees but also that those candidates view the law--both
statutory and constitutional--as having an affirmative role to play in
expanding opportunities for all.
The Bork nomination was a watershed in other respects. The Senate's
extensive public questioning of the nominee prompted a vigorous debate
about the meaning of the Senate's constitutional obligation and about
the effects of the public nomination process. At that time, like today,
debate focused on whether the power to provide both ``advice and
consent'' ought to mean that the Senate should presume it will consent.
Further, assuming a substantive role for the Senate, the issue raised
was whether senators could inquire directly about what was then termed
``judicial philosophy'' and what is now called ``ideology''--or whether
``judicial temperament'' and ``professional competence'' were the only
permissible topics.
Reviewing the nominations both before and since the Bork hearings,
I hope that the question about the Senate's role can now be understood
as settled. As Charles Black explained some years ago, no reason--
``textual,'' ``structural,'' ``prudential,'' or ``historical''--exists
for objecting to reading the Constitution's words ``advise and
consent'' as authorizing senators to take an active role in shaping the
federal judiciary.\30\ As I have just detailed, in recent years, the
Senate has used that role to illuminate both the ideas and beliefs of
an individual nominee and the concerns of the nation.
---------------------------------------------------------------------------
\30\ See Charles L. Black, Jr., A Note on Senatorial Consideration
of Supreme Court Nominees, 79 YALE L. J. 657, 664 (1970). See generally
PAUL SIMON, ADVICE & CONSENT: CLARENCE THOMAS, ROBERT BORK, AND THE
INTRIGUING HISTORY OF THE SUPREME COURT NOMINATION BATTLES (National
Press, 1992); David R. Strauss & Cass R. Sunstein, The Senate, the
Constitution, and the Confirmation Process, 101 YALE L. J. 1491 (1992);
Robert F. Nagel, Advice, Consent, and Influence, 84 Nw. U. L. REV. 858
(1990); Judith Resnik, Changing Criteria for Judging Judges, 84 NW. U.
L. REV. 889 (1990); Paul A. Freund, Appointment of Justices: Some
Historical Perspectives, 101 HARV. L. REV. 1146 (1988).
---------------------------------------------------------------------------
Rather than apologize, I hope that the Senate will embrace the
constitutional structure. We should all applaud the insights of the
Constitution to build in roles for both the Executive and the Senate.
Through these layers of repeated inquiry, first by the President's
staff and then by the Senate, power is distributed. The Senate should
not hesitate to engage nominees in careful exploration of their views,
their work experiences, and their commitments.
This series of hearings has also focused on a related question:
whether nominees ought to be asked to make an affirmative showing or
whether they come with a presumption of confirmability. No such
presumption ought to attach. The Article III judiciary is conceived as
independent of both Congress and the Executive. Federal judges are not
and ought not to be selected to be apart of the President's ``team.''
When Presidents select a broad and diverse group of nominees who in
turn represent a wide spectrum of views, senatorial concern might
relax, but when presidents pick a narrow band, such choices ought to
prompt ``heightened scrutiny.''
Searching inquiries are necessary today for two reasons. First, we
are in the midst of a significant debate about the meaning of federal
law. To preview questions that I understand will be central in the next
hearings of this Committee, the meaning of ``our federalism'' (to use
Justice Black's phrase from Younger v. Harris \31\) is deeply
contested. By way of a simple summary, today the Commerce Clause has
been read to mean something different than it did in 1994\32\ The same
can be said for both the Eleventh and Fourteenth Amendments.\33\ These
new interpretations all come by virtue of decisions made by a bare
majority on the Supreme Court.
---------------------------------------------------------------------------
\31\ 401 U.S. 37, 44 (1971).
\32\ See United States v. Lopez, 514 U.S. 549 (1995); United States
v. Morrison, 529 U.S. 598 (2000).
\33\ See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Kimel v.
Florida Bd. of Regents, 528 U.S. 62 (2000).
---------------------------------------------------------------------------
What is at stake in the appointment of life tenured judges is not
only constitutional rights but also the many statutory rights crafted
by Congress. Historically, a shared view was that courts were obliged
to defer to congressional judgments; doctrinally, this view was
expressed by the rule that federal statutes were entitled to a
presumption of constitutionality. That presumption is entirely proper,
marking the constitutionally shared power of the branches of the
federal government to make the meaning of federal law.
But, as I begin to teach my students tomorrow about the federal
courts, I cannot report to them that this presumption remains intact.
Members of the federal judiciary have undermined it substantially, as
they strike federal statute after federal statute. As Justice Breyer
put it in his dissent last term in the Garrett case, the five-person
majority of the Supreme Court is treating the record developed through
hearings in this Congress ``as if it were an administrative agency
record'' and substituting its own evaluation for that of this
legislature.\34\ Several of the majority's decisions are what I term
``factless,'' by which I mean that they are filled with abstract
theoretical claims about constitutional structure rather than grounded
in the experiences of litigants, the materials produced through
congressional hearings, and the detailed facts within the records.
---------------------------------------------------------------------------
\34\ See Board of Trustees of University of Alabama v. Garrett, 121
S.Ct. 955, 969 (2000) (Breyer, J., dissenting, joined by Justices
Stevens, Souter, and Ginsburg).
---------------------------------------------------------------------------
That approach ought not be one to which anyone aspires. As the
Senate considers nominees to the federal bench, it ought to inquire
about their attitudes towards the job of judging. Rather than presume
them appropriate for the judiciary, assess what they have done, as
lawyers and as judges. Further, when considering individuals, the
Senate ought also to assess the wisdom of their joining the specific
courts for which they have been proposed. I also hope that you will
think about the nominees as a group and reflect upon the degree to
which they bring to the bench diverse experiences as lawyers, involved
with the full range of legal and political activities rather than drawn
from only a limited sector. We need individuals who have been lawyers
for all kinds of people. The ranks of the judiciary ought to include
prosecutors and defense attorneys, those who have worked full time as
legal services lawyers and those who have worked in large commercial
firms, lawyers involved in the public sector, those who work for all
aspects of government, and for non-profits.
No single formulation captures the many attributes that are needed
to be a good judge. But the Senate can approach the issue by looking
for objective indices of nominees' views. For example, one can learn
whether a person, as a part of a professional career, has contributed
time and energy to represent those unable to afford lawyers. One can
learn whether nominees are aware of the many recent studies
demonstrating that courts are not yet places seen as providing equal
treatment, regardless of race, language, ethnicity and gender \35\ More
than sixty court-commissioned reports address the subject matter of
gender, race, and ethnic bias in the courts and the legal
profession.\36\ Bar associations have taken on these issues as well.
One can learn whether nominees contributed to such projects.
---------------------------------------------------------------------------
\35\ See, e.g., AMERICAN BAR ASSOCIATION, PERCEPTIONS OF THE U.S.
JUSTICE SYSTEM (1999).
\36\
---------------------------------------------------------------------------
36. See, e.g., New York State Judicial Commission on Minorities,
Report of the New York State Judicial Commission on Minorities (1991);
New York Task Force on Women in the Courts, Report of the New York Task
Force on Women in the Courts, reprinted in 15 FORDHAM URB. L. J. 11
(1986); Ninth Circuit Gender Bias Task Force, The Effects of Gender in
the Federal Courts: The Final Reports of the Ninth Circuit Gender Bias
Task Force, reprinted in 67 So. CAL. L. REv. 727 (1994).
Through a variety of means, the Senate can learn whether nominees
evidence concern for the human beings whose lives are to be affected by
court rulings and whether they can be sensitive to the fact that
disputants are often needy. One can look for evidence of a patient
willingness to be tethered to records, to be grounded in the minutiae
that make up legal proceedings, and to be constrained by the role to
delve into the parties' claims to ascertain the merits. One can look at
whether a nominee sees the use of federal courts as an important aspect
of justice in the United States and supports ready access to the
federal courts.
In sum, at this point in our history, I do not believe that the
question is really whether the Senate can ask questions and engage in a
full inquiry. Nor do I believe that the Senate has any basis in law or
practice to feel itself beholden to the President and obliged to
confirm his nominees.
Rather, the real question is whether the Senate will have the
willingness to devote itself to the work at the level required to do
so, well. Stamina, commitment, and energy are required. Hence, I come
today not only to offer historical and scholarly materials, drawn from
both the archives of the federal judiciary and contemporary databases,
but also as a citizen, appreciative that this Committee has convened
this hearing--and to ask for more. I have spent much of my life as a
lawyer and law professor thinking about the role of the federal
judiciary. I am deeply admiring of this institution, for, as one of our
Supreme Court justices put it, ``the independent judiciary . . . has
been one of our proudest boasts, by reason of Article III.'' \37\
---------------------------------------------------------------------------
\37\ See Palmore v. United States, 411 U.S. 389, 410, 412 (Douglas,
J., dissenting) (objecting to the reorganization of the D.C. courts,
which had been challenged by a criminal defendant arguing for an
Article III judge to preside in his case).
---------------------------------------------------------------------------
The task now is to make good on that constitutional promise. To do
so requires a fulsome commitment by the United States Senate to ensure
that the individuals entrusted with this lifetenured position, and who
therefore have the power to adjudicate, to appoint other judges, and to
advise this institution on the role of the federal courts, represent
all of America rather than only a narrow slice of our legal, political,
and social life.
Thank you.
[GRAPHIC] [TIFF OMITTED] T9825.014
Chairman Schumer. Thank you, Professor Resnik, for getting
a lot in in a short time.
Our next witness is Douglas Kmiec. He is the Dean of the
Columbus School of Law at the Catholic University of America
here in Washington, D.C., a graduate of Northwestern University
and the University of Southern California Law School. In
addition to postings at Pepperdine and Notre Dame Law School,
Dean Kmiec served from 1985 to 1989 in the Reagan and first
Bush administrations, where he headed the Office of Legal
Counsel. He is the author of numerous books and articles,
including The History, Structure and Philosophy of the American
Constitution, which he coauthored with a panelist from our last
hearing, Northwestern University legal historian Stephen
Presser.
Your entire statement, without objection, is read into the
record and you may proceed, Dean Kmiec.
STATEMENT OF DOUGLAS W. KMIEC, DEAN AND PROFESSOR OF LAW,
CATHOLIC UNIVERSITY OF AMERICA, WASHINGTON, D.C.
Mr. Kmiec. Thank you, Senator, and thank you for the
invitation and including my full statement in the record.
There is no question that the Senate's power of advice and
consent is textually unfettered, but I think as a matter of
historical context and practice, my proposition to you would be
simple, that the appropriate Senate inquiry is to matters of
demeanor, integrity, competence, and fidelity to the rule of
law.
I think the proposition that I state here is one that is
grounded in our history, going back to Alexander Hamilton's
explanation in The Federalist Papers of what your role would
be. You may remember, Senator, that his description of your
role was that it would be powerful, but that it would also be
generally silent in operation; that, in essence, the President
would know by the fact that his men and women would have to
come before you that that in itself would be quite a chastening
experience, and apparently it is turning out to be so.
But Alexander Hamilton specified in particular that it was
chastening with regard to the following matters. ``It would be
an excellent check,'' he wrote, ``upon the spirit of favoritism
in choices of the President,'' that it would tend greatly to
prevent the appointment of unfit characters, that it would
prevent the appointment of people who are laboring under
prejudice or family connection or who are appointed from
personal attachment or from a view of popularity.
I think if you analyze The Federalist Papers carefully, you
will see that those are questions of integrity, those are
questions of fitness, those are questions of temperament, those
are questions of fidelity to the rule of law. So one question
that I think needs to be answered is why are we reexamining
this, then, today?
Now, there has been a lot of popular suggestion that maybe
it is retribution for the allegation that President Clinton's
nominees were not treated well. I think it has been stated here
more than once this afternoon that, in fact, they were treated
quite similarly to those of Reagan in terms of similar number
approved, as well as the similar number that were left
unapproved by virtue of the lack of time. So I think, quite
frankly, that is either a speculation that is demeaning to this
body in terms of attributing to it only a partisan motive or
that is factually untrue.
Another explanation for why we are here today comes from
our colleague, Laurence Tribe, and he suggests that there is a
need for balance. Well, the difficulty with balance is that
this is an effervescent concept. It is largely undefined, and I
would suggest that in addition to being largely undefined and
somewhat unworkable, we already have it, whatever it is.
We have on the Supreme Court of the United States members
appointed from five different Presidential perspectives. We
have had recent essay writings suggesting that maybe we have
too many judges on the Court and we should get people from
other political experience. While there is something to be said
for that argument, I think it understates the careers of the
people who are already serving on the Court.
Take, for example, Ruth Bader Ginsburg, who was, as already
mentioned, I think, by Senator Simon, an advocate for the
American Civil Liberties Union. Take, for example, Justices
Thomas, Scalia and Breyer. Thomas and Scalia had distinguished
careers in the executive branch. Justice Breyer was a law
teacher. So we do have a number of different backgrounds
already in existence on the Court.
I think the real answer for why we are here is that there
is a desire for different substantive outcomes, and that is
what I heard in my colleague, Professor Resnik's remarks, and
that is what I have read in some of the other statements that
have been submitted to you. Quite frankly, there is
disenchantment by some Members of the Congress with how the
Supreme Court and the lower Federal courts are treating your
enforcement powers with regard to civil rights.
There is disenchantment with regard to what the scope of
the commerce power is, what things are national, what things
are local. There is disagreement over other questions that have
come before the Court recently with regard to the 11th
Amendment and State sovereign immunity and how that interacts
with Federal authority.
Quite frankly, those questions are important questions,
vital questions, and I like the notion of laying things on the
table. But where those should be laid on the table is in
legislative debate, in responses to the Court, in responses to
judicial decisions. If, in fact, the Court is saying to you
that there is an insufficient legislative record to vitiate
sovereign immunity, then, in fact, the response is to produce
that legislative record of the type that the Court suggests is
necessary, to address it head-on and not indirectly through
judicial nominations.
Most importantly, it is important to keep it in that
context because otherwise a very wrongful supposition is
indulged. Last week, Joseph Califano, a distinguished member of
this legal community in Washington, wrote an essay for the
Washington Post. The essential premise of the essay was that
this Congress is paralyzed, it is gridlocked, it is failing in
its responsibilities legislatively.
Mr. Califano mentioned a couple of topics of concern to
him. He talked about Big Tobacco, he talked about handgun
control. He said basically the Senate and the House have failed
on these issues, so we must turn to an alternative venue, the
courts, and have policy implemented through the courts. That, I
think, is the most grievous wrong that could be done to our
system, not only because it substitutes the courts for your
function, but it sacrifices what every school child knows is
important in terms of fairness of judgment, and that is the
independence of the judiciary.
The closest analog, Mr. Chairman, that I can think of is
the attempt, the well-intentioned intent perhaps of Franklin
Delano Roosevelt to pack the Court. You remember it. We were in
a dire economic depression. The Court was not being very
congenial to his ideas as to how to work his way out of that,
and so he came up with an ingenious plan which he said would
inject new blood onto the Court. But he rather quickly gave up
that pretense and said, what I really dislike is that these
conservative Justices are turning down my liberal outcomes.
Well, you remember the response to that. The response as
this Judiciary Committee said was ``If we may force the hand of
the Court to secure our interpretation of the Constitution,
then some succeeding Congress may repeat the process to secure
another and different interpretation, and one which may not be
so pleasant to our ears. The initial and ultimate effect of
undermining the independence of the courts and violating all
precedents in the history of our Government would be a
dangerous precedent for the future.'' It was a dangerous
precedent for the future 64 years ago and it is dangerous
today.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Kmiec follows:]
Testimony of Douglas W. Kmiec, Dean and St. Thomas More Professor of
Law, The Catholic University of America, Washington D. C.
Summary: To measure nominees by an ideological litmus-test or place
the burden on nominees to justify their ideological conformity is the
equivalent of partisan, outcome driven court-packing. Using the advice
and consent function for this purpose threatens judicial independence,
wrongly assumes judicial predictability, undermines the democratic
choice embodied in presidential election, and distracts the Senate from
its proper inquiry into competence, integrity and demeanor, and leaves
unexamined, more subtle and difficult inquiries into statutory or
interpretive method and fidelity to the rule of law.
Mr. Chairman, thank you for inviting me here to testify on the
appropriate inquiries for the Senate in considering judicial nominees.
My proposition is simple: the proper Senate inquiry of a judicial
candidate is demeanor, integrity, legal competence and fidelity to the
rule of law. It is not partisanship or policy agreement. While
textually the Senate is free to inquire and to reject a nominee on any
ground even a highly political, constitutionally problematic one like
the nominee's views on outcomes in specific cases--it should not do so.
Undertaking to make nominees carry a type of political burden of proof
will over time merely invite a subservience of mind and personality
that is contrary to an independent judiciary.
The significance of an independent judiciary is well-known to every
school child. The point was made plain in the bill of indictment
included against the English King in our Declaration of Independence.
``He has made Judges dependent upon his Will alone, for the tenure of
their offices,'' our founders complained. Any attempt to transform the
Senate's advice and consent role into a similar partisan inquiry would
cut deeply against our history and unnecessarily invite making federal
judges dependent upon constitutionally inappropriate considerations. In
the constitutional convention of 1787, great concern was expressed
against having judicial appointments influenced by the Legislature out
of ``cabal, from personal regard, or some other consideration than a
title derived from the proper qualifications.''\1\ Indeed, in this past
century, there has been only one other such blatant effort to subvert
the independence of the federal judiciary: FDR's court-packing plan.
---------------------------------------------------------------------------
\1\ Records of the Federal Convention of 1787 (July 21, 1787).
---------------------------------------------------------------------------
The court-packing plan, in essence, proposed that when a federal
judge who had served at least ten years waited more than six months
after his seventieth birthday to retire or resign, the President would
add a new judge to the bench, with up to six additional slated for the
Supreme Court. FDR talked about the need for ``new blood'' and so
forth, but everyone knew that the President wanted to change the
jurisprudential direction of the Court--to bend it to his will. FDR,
himself, gave up the pretense soon enough. As one scholar noted, ``the
President virtually abandoned this line of argument and came out with
his main reason: that the Court was dominated by a set of conservative
justices who were making it impossible for liberal government to
function.'' \2\ Sound familiar? These were times of great economic
distress. Millions were out of work and the Court was showing little
deference for FDR's regulatory initiatives to address the problem. Yet,
even under these dire circumstances--which are hardly equivalent to the
relative prosperity of today--``it quickly became apparent that
opponents of the plan enjoyed widespread support.'' \3\
---------------------------------------------------------------------------
\2\ William E. Leuchtenburg, Franklin D. Roosevelt's Supreme Court
`Packing' Plan,'' 86.
\3\ Id. at 83.
---------------------------------------------------------------------------
Like President Roosevelt, some in the Senate today may believe the
Rehnquist Court, and even the lower federal courts (even though they
have recently been augmented with 377 new judges sharing the judicial
philosophy of former President Clinton) to be ideologically contrary to
desired policy. Like FDR, these members of the Senate ask for a
judicial population that will not weigh case or controversy by
adherence to precedent. or textual or structural interpretation, but by
the desirability of particular outcome. This course is ill-advised and
should not be pursued. The short-term political gratification of
defeating one or a handful of judicial nominees on partisan or
ideological grounds will harm the federal judiciary and bring dishonor
to this deliberative body.
Why dishonor? Consider the words of the Senate Judiciary Committee
in turning away FDR's attempt to inject partisanship into the
composition of the courts. The plan was denounced for applying ``force
to the judiciary. It is an attempt to impose upon the courts a course
of action, a line of decision which, without that force, without that
imposition, the judiciary might not adopt.'' \4\ This assault upon
judicial independence came with the following warning which
unfortunately seems equally apt to the arguments being presently made
to force judicial nominees to prove their ideological bona fides:
\4\ S. Rep. No. 75-711 at 7-8 (1937).
---------------------------------------------------------------------------
``Let us, for the purpose of the argument, grant that the Court
has been wrong, wrong not only in that it has rendered mistaken
opinions but wrong in the far more serious sense that it has
substituted its will for the Congressional will in the matter
of legislation. May we nevertheless safely punish the Court?. .
. .If we yield to temptation now to lay the lash upon the
Court, we are only teaching others how to apply it to ourselves
and to the people when the occasion seems to warrant.
Manifestly, if we may force the hand of the Court to secure our
interpretation of the Constitution, then some succeeding
Congress may repeat the process to secure another and a
different interpretation and one which may not sound so
pleasant in our ears as that for which we now contend.\5\
---------------------------------------------------------------------------
\5\ Id. at 10.
---------------------------------------------------------------------------
In the end, the Senate Judiciary Committee in the 1930s strongly
denounced the courtpacking exercise as having the ``initial and
ultimate effect [of undermining] the independence of the courts,'' and
[violating] ``all precedents in the history of our Government and would
in itself be a dangerous precedent for the future.'' \6\
---------------------------------------------------------------------------
\6\ Id. at 3.
---------------------------------------------------------------------------
The future is apparently now, and sixty-four years later packing
the courts on the basis of desired outcomes looks no better and is no
more consistent with the spirit of the Constitution and its guarantee
of judicial independence.
But more than judicial independence is at stake, because an attempt
to exclude men and women of excellent credential and judgment because
they don't happen to subscribe to your particular conception of
federalism, or because they do not possess the right disposition toward
this or that doctrinal formulation of due process, or affirmative
action, or any other topical subject is a use of the vital Senatorial
role of advice and consent that is either wholly random since it seeks
to predict the unpredictable or deeply anti-democratic as it seeks to
undo a national election and the contemplated sovereignty of the people
in the selection of judges through the election of a new executive.
Nominee selection--as a matter of fact--is seldom sufficient to
predict accurately the philosophical direction of a particular judicial
candidate, once appointed to a lifetime job with no salary diminution.
Eisenhower had his Earl Warren; Nixon had his Blackmun; Bush had his
Souter. In each case, it is either popularly speculated or actually
articulated that the nominee's service was at some considerable
variance to the philosophy of the nominating president. A recent study
for the LBJ Journal of Public Affairs estimates that one Justice in
four disappointed his appointing president.
Whether or not presidents have been dismayed by their nominees at
times, judicial behavior is certainly a hazard to predict. ``Chief
Justice Earl Warren, prior to his appointment, supported President
Roosevelt's decision to intern United States citizens of Japanese
ancestry during World War II . . . . But as Chief Justice, Warren
became an icon of civil liberties organizations . . . .'' \7\ Consider
also just the past term of the high court. So-called conservative
Justices Scalia and Thomas insisted that law enforcement observe the
privacy of a home from the intrusion of a rare thermal imaging device,
while claimed liberal Justice Stevens dissented. Meanwhile, Justice
Breyer assumed by the President who nominated him, the media, and this
body to have a progressive or liberal ideology at the time of his
confirmation, has joined results permitting a student Bible club to use
a public school classroom in the after school hours, and earlier, that
would more easily exclude adult cable programming. As Professor Richard
Garnett has observed: ``[the] justices are neither easy to pigeonhole
nor easy to predict. Their dispositions are not merely `restrained' or
`activist.' Their decisions aren't predetermined by the ideological
labels slapped on?by partisan animators.\8\
---------------------------------------------------------------------------
\7\ Bruce Fein, ``A Circumscribed Senate Confirmation Role, ``102
Harv. L. Rev. 672, 682 (1989).
\8\ Richard Garnett, ``Disrobed! Actually, They Think for
Themselves,'' Washington Post (June 29, 2001).
---------------------------------------------------------------------------
But even if there was a greater level of predictability, what
possibly authorizes the Senate to substitute its judgment for that of
the electorate under the disguise of inquiring into judicial fitness?
Despite the disagreements that you or I may have with individual
decisions of the present Supreme Court or the lower federal courts,
there is little to suggest that, in the aggregate, these institutions
are composed of individuals unrepresentative of the people. Quite the
contrary. Five presidents have contributed to the make-up of the
present Court and Presidents Reagan and Clinton had the opportunity to
appoint virtually identical numbers of lower federal court judges over
their respective terms [377 for Clinton and 382 for Reagan]. And
despite the fact that the last national election may have hung by a
chad, or that some academics would have preferred greater reliance upon
political (rather than adjudicative) means of resolving the electoral
disputes that emerged, the outcome--supported at its most basic level
by seven justices (labeled conservative and liberal alike)--has vested
the power to nominate judicial officers in President Bush by a majority
of electoral vote. And that vote has meaning for executive and judicial
appointment that ought not be undone covertly by this body.
Here it is good to recur to first principle. As the very able
Northwestern legal historian Professor Stephen Presser pointed out
before this body earlier this year, the critics of the Constitution
were particularly worried about any policy making tendencies of federal
judges, especially as it might displace state authority. Hamilton
responded to this criticism by emphasizing that it was not the job of
judges to make law, that their role under the Constitution was simply
to enforce the Constitution and laws as they were written, according to
their original understanding. By doing so, Hamilton explained, federal
judges would be acting as agents of the sovereign people themselves,
and would do their part in implementing the rule of law. It was true
that judges might sometimes be called upon to declare statutes invalid
because of the dictates of the Constitution, but this was the role
envisioned in those specific, and one might hope, rare cases. The
Constitution itself sets limits on what Congress may do, Hamilton
explained, and when the legislature exceeds those limits it ceases to
act pursuant to the will of the people. It is then the job of the
people's other agents, the Courts, to reign in the legislatures.\9\ All
this is a long way of saying, as Hamilton did succinctly, that in
properly deciding matters of unconstitutionality, the courts are not
implementing their own preferences, but that of the people.
---------------------------------------------------------------------------
\9\ Federalist 78
---------------------------------------------------------------------------
Professor Presser further bolstered this historical reference by
mention of the separation of powers. It was well understood to our
framers, pursuant to the theories of Montesquieu, that liberty could
not be preserved unless judges were barred from legislating. Lawmaking
was left to the legislature and the people themselves. As Hamilton
wrote in Federalist 78, quoting Montesquieu's Spirit of Laws directly,
``there is no liberty if the power of judging be not separated from the
legislative and executive powers.'' \10\ And that is not just an
admonition to judges to observe the boundaries of their intended role.
Liberty can also be lost if judging is given over to the executive or
legislative branches as well, or if prospective judges are invited to
be lawmakers by the pressures of politicized confirmation.
---------------------------------------------------------------------------
\10\ Id..
---------------------------------------------------------------------------
Sadly, this is forgotten far too often today. Courts are casually
discussed as merely alternative policymakers. Mr. Joseph Califano Jr.
in an essay just last week, for example, accused and the Congress as a
whole of ``political pandering,'' ``gridlock,'' and ``failure,'' and as
a result argued that federal courts must become (and have become)
``powerful architects of public policy.'' \11\ I doubt very much
whether the Senate wants to indulge Mr. Califano's harsh premise of the
failure of Congress. Perhaps, as a policy matter, many would support a
more aggressive regulatory, perhaps even prohibitory, policy toward
tobacco or hand-guns, and reading him, I suspect so would Mr. Califano.
But the Congress has chosen a different path--to regulate tobacco
advertising and to pursue background checks for certain weapon
purchases. These are policy choices. Congress has made them. When the
Supreme Court was asked to do more than Congress was willing to do--to
authorize explicitly the FDA to regulate tobacco products--it declined.
If Congress is truly displeased with that judicial outcome, it has a
far more direct and appropriate constitutional means than to smuggle a
highly partisan, policy litmus-test into the judicial confirmation
inquiry.
---------------------------------------------------------------------------
\11\ Joseph A. Califano Jr., ``Yes, Litmus-Test Judges,''
Washington Post A 23 (August 31, 2001).
---------------------------------------------------------------------------
The President has the power of choice in his nomination. Textually,
the Senate has unfettered power to deny that choice. But text is
necessarily bounded by its historical context. History reveals that the
Senate up until the 1980s largely confined its inquiries to integrity,
demeanor, competence and subscription to the rule of law. ``There will,
of course, be no exercise of choice on the part of the Senate,'' wrote
Hamilton in Federalist 66. In observing this precept over time, the
Senate was observing the designed independence of the judiciary,
respecting the democratic will of the people, and abiding by the
separation of powers. It certainly was not attempting to escape any
allegation of its own policy forfeiture, and to seek to do indirectly
that which it has lacked the political courage to do directly.
If the Senate is truly interested in improving the federal
judiciary, I respectfully suggest that these hearings would be better
devoted to examining judicial method and fidelity to text and
legislative purpose, rather than partisanship; in other words, to
inquire whether nominees coming, before you are willing to abide by the
text of the statutory law as you have authored it. Legitimate questions
can be asked whether there is a difference between statutory and
constitutional interpretation, and how a prospective nominee would
address that difference. The Constitution is to ``endure for the
ages,'' after all, and statutes often are intended to have a shorter
life or a narrower object. But that said, what this body needs to
know--especially from lower court nominees--is whether the judicial
nominee proposes to observe the intended scope of statutory text given
to it by the Congress, or one of his or her own making.
In brief, personal integrity, judicial temperament or demeanor, and
learning in the law or competence are the primary indicia for
eligibility of judicial service, and underlying them all, must be a
sincere commitment to abide by the rule of law. Judicial independence
from mean spirited or shallow political posturing or inquiry is merited
because in this country, citizens are still entitled to believe that
lawyers called to the bench--and those receiving the confirmation of
the Senate--will allow the prospective application of previously and
regularly enacted rules to prevail over arbitrary power, even when they
may dislike the rule at issue. Nominees should face no obstruction or
delay or improper placements of political burdens so long as they
believe that all people, rich and poor alike and of whatever race, are
to be equally subject to generally applicable law administered by
ordinary, regular courts. Yes, the Senate has a duty to inquire whether
a nominee subscribes to these age-old precepts of the rule of law,
well-summarized to our founders by Blackstone, and traceable to the
earliest manifestations of the common law. But this inquiry bears no
resemblance to the bumper-sticker like characterizations of whether one
nominee or another is conservative or liberal.
If this is so well-settled, why are we invited to reconsider it
now? There is little by way of a coherent response that the proponents
of a heightened nominee burden of proof give. Some proponents of a
reconfigured Senate role, like my friend and constitutional law
colleague Laurence Tribe, propose that the ultimate purpose of the
questioning is to have a balanced court. With all due respect to
Professor Tribe's erudition in matters of constitutional study, a S-4
court on the most delicate issues of the day is a fairly solid
indicator of balance. Perhaps the balance ``tilts'' slightly to the
center-right, rather than the center-left, but there is no real measure
of this from term to term. So too, it is recently popular to claim that
there aren't enough varieties of experience on the bench--too many
former judges, as it were. This characterization, however, slights the
lifetime of achievement of the present Court. Ruth Bader Ginsburg had
prior appellate judicial experience, but also, led a litigation arm of
a very active national organization on gender issues. Several of the
justices had executive or administrative experience (Rehnquist, Scalia
and Thomas); others were teachers (Breyer and Kennedy) and still others
distinguished practitioners (Stevens).
However, even if balance could be defined, another witness before
you today, the distinguished Professor Sanford Levinson, says balance
is the entirely wrong inquiry. Professor Levinson urges you to
substantively object to the Court's Fourteenth Amendment, Commerce
Clause and Eleventh Amendment jurisprudence.
Why does Professor Levinson feel comfortable substituting his view
of these issues for those of the present Court, or more relevantly to
today's discussion, to the views of the people as represented by the
President through the appointment process? Bluntly: because, to quote
him, Bush v. Gore is ``a patently illegitimate decision, . . .
monumentally unpersuasive; and . . . its illegitimacy taints Mr. Bush's
own status as our President.'' We owe Professor Levinson a debt of
gratitude for his candor, because I believe his remarks are the
gravamen of this hearing.
This is not the place to re-argue Bush v. Gore, and I won't.
However, it is clear that, unlike some academics, the overwhelming
percentage of people (and seven justices of the Supreme Court) accept
the proposition that equal protection when applied to ballots means at
least this: if you're asked to count votes, you have to know what
you're counting. When the Florida Supreme Court reflected upon the
matter, five of the state justices who had previously ordered the
standard-less recount affirmed that ``the development of a specific,
uniform standard necessary to ensure equal application and to secure
the fundamental right to vote throughout the State of Florida should be
left to the body we believe best equipped to study and address it, the
Legislature.'' \12\
---------------------------------------------------------------------------
\12\ Gore v. Harris, 773 So. 2d 524, 526 (Fla. 2000) (per curiam);
this is the opinion written disposing of the matter after it was
remanded by the U.S. Supreme Court the second time in Bush v. Gore.
---------------------------------------------------------------------------
Respect for the lawmaking enterprise, for legislatures, especially
the Congress, is a salutary by-product of the proper exercise of advice
and consent. ``Limiting the judicial function to interpreting the
Constitution guarantees the political branches their legitimate powers,
which keeps policymaking in the hands of those who are most accountable
to the people. . . .The Senate's power of advice and consent is a broad
one, though it is not arbitrary. A fair interpretation of the qualities
required of judicial nominees by the Constitution emphasizes legal
capacity, personal integrity, and a commitment to abide by the
Constitution.'' \13\ Obtaining commitments to abide by favored policy
outcomes does not abide the Constitution.
---------------------------------------------------------------------------
\13\ Christopher Wolfe, ``The Senate's Power to Give `Advice and
Consent' in Judicial Appointments,: 82 Marquette L. Rev. 355, 379
(1999)
---------------------------------------------------------------------------
The Senate is rightly desirous to perform its constitutional duty
well. But undertaking partisan screening no matter how elegantly
dressed in academic language is a default of that duty. As Hamilton
explained, ``the necessity of [your] concurrence would have a powerful,
though, in general a silent operation. It would be an excellent check
upon the 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.'' \14\
---------------------------------------------------------------------------
\14\ Federalist No. 76.
---------------------------------------------------------------------------
The Senate should not place the burden of proving partisan
compatibility upon judicial nominees.
Chairman Schumer. Thank you, Dean Kmiec.
Finally, our last witness, and we thank him for his
patience here today, is Mark Tushnet. He is the Carmack
Waterhouse Professor of Constitutional Law at the Georgetown
University Law Center. He received his undergraduate degree
from Harvard, a master's and law degree from Yale, and clerked
on the Supreme Court for Justice Marshall before embarking on a
career in academia where he has developed a reputation as one
of the Nation's leading legal historians. He is the coauthor
of, among other works, Federal Courts in the 21st Century, and
has written extensively about the history of the Federal
judiciary.
Like the other witnesses, your entire statement is read
into the record and you may proceed as you wish, Professor.
STATEMENT OF MARK TUSHNET, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER, WASHINGTON, D.C.
Mr. Tushnet. Thank you, Senator Schumer. I want to thank
you and your Subcommittee for inviting me to testify on the
important question we are discussing today.
I am going to begin with some general comments about
whether nominees must show that they are particularly qualified
for the appointment or whether, in contrast, those who oppose
the nomination must show that the nominees are not qualified.
My written comments turn to the relevance of political
experience to appointment to the Federal courts. I won't go
through those points orally, but would be happy to discuss them
in the question period.
It seems to me that constitutional principle shows that
nominations come to the Senate essentially in equipoise because
the considerations relevant to a burden of persuasion are
basically in balance. That conclusion, it seems to me, is
supported by the most basic aspects of our system of separation
of powers, famously described by Madison in the 51st Federal
Paper as one in which ambition counters ambition; that is, the
separation of powers system works best when each branch--here,
the President and the Senate--take positions that each
calculates independently will serve the American people best.
In the context of judicial nominations, the process of
ambition countering ambition works in this way: the nominee and
his or her supporters can point out that the nomination was
made by a President. Now, we have heard talk about deference to
the President, but the question really is what is the reason,
if any, for the existence of some presumption or deference.
It is not simply the position the President occupies.
Rather, deference arises, if it does, because the President
presumptively has the support of the people of the United
States as a whole, having been chosen by a majority of them. In
response, Senators can reasonably respond that they too were
chosen by the majority of the American people, taken as a
whole, organized somewhat differently. Indeed, I think there
are a couple of considerations that make the Senators' claims
somewhat stronger, although the distribution matters a bit.
The President was chosen by a majority of the American
people in a single election, capturing the people's views at a
moment in time, while Senators were chosen in a series of
elections that, taken together, might better capture the more
enduring values of the American people. And in that connection,
questions of timing may matter as well. The more remote the
Presidential election is, the more powerful is the Senate's
claim to represent the people as of the time of nomination.
Now, the historical record is unsurprisingly subject to
varying interpretations. One historian describes the Senate's
role as reactive, responding to the initiative taken by the
President in selecting a nominee. In this connection, there is
a particular problem in assessing history which I would put
under the heading of ``divided government,'' a relatively
recent phenomenon as a sort of permanent feature of our
constitutional system.
When the Senate and the President are in the same party, it
is not surprising that the Senate would engage in a relatively
limited inquiry and that the criteria articulated would be
relatively limited. After all, there is going to be relatively
little disagreement between the nominating President and a
majority of the Senate where there is this sort of unified
control.
I think that Senator Schumer's concern about the under-the-
table problem arises in connection with divided Government,
when the President and a majority of the Senate are from
different parties. It is at that point that controversy arises,
and I take the effort here to be one to make sure that the
nature of the controversy be brought out into the open rather
than concealed by some other inquiries that might be
undertaken.
This historian I quoted, Dean Raymond Solomon, describes
the history as one in which politics, policy and
professionalism all play a role. Policy concerns, he says,
dominate when Presidents attempt to transform governmental
structures or policies and perceive the Court as a necessary
ally in accomplishing that agenda.
Controversy has arisen when Presidents made selections
based on concerns that the Senate didn't share, whether the
disagreement was over a policy course the President sought to
set through the nominations or over the patronage-type politics
the President pursued in selecting a nominee.
My own take on this complex history would be that, in
general, opponents of nominations have never thought that the
mere fact of nomination carried with it any special presumption
in favor of the nomination. Nomination contests have focused on
whatever seemed relevant at the time: the nominee's ideology,
the nominee's performance in executive office pursuing policies
with which the Senate didn't agree, whether the nomination
would have particularly dramatic effects on the overall
direction of the Court, the nominee's background. All of this
has been fair game, and it seems to me that is precisely the
way the system of ambition countering ambition should work.
I want to close with two comments. The first is the
observation that has been made earlier today about the
inaccuracy of predictions about the course the nominees will
pursue once appointed. Here, there is a line--I may not quote
it exactly -from Ecclesiastes: the race is not always to the
swift, nor the battle to the strong. It was amended by either
H.L. Mencken or Damon Runyon, but that is the way to bet; that
is, chances are you are going to get what you expect to get.
The second point relates to the concern about an intrusive
or extensive nomination process and its effects on attracting
people to the positions for which they might be nominated.
Here, I want to refer to a dinner conversation I had nearly 30
years ago with the first judge I worked for, George Edwards, in
Detroit.
At the end of my term of service with him as a law clerk,
we went out to dinner and during the course of that dinner he
said something that I have never forgotten, which is,
reflecting on his career, he said we should always remember
that it is a privilege to have the opportunity to serve the
American people. I think that a nominee who does not regard the
opportunity to serve as a real privilege is one about whom we
ought to have questions.
Thank you.
[The prepared statement of Mr. Tushnet follows:]
Statement of Mark Tushnet, Carmack Waterhouse Professor of
Constitutional Law, Georgetown University Law Center
I want to thank Senator Schumer and the subcommittee for inviting
me to testify on the important question of the criteria Senators should
use in determining whether to vote in favor of a proposed appointment
to the federal courts, and especially the Supreme Court. My
observations are informed by historical experience and, I believe,
constitutional principle. I begin with some general comments about
whether nominees must show that they are particularly qualified for the
appointment or whether, in contrast, those who oppose the nomination
must show that the nominees are not qualified.
My comments then turn to the relevance of political experience to
appointment to the federal courts, and especially the Supreme Court. In
my brief comments I will provide some snapshots from history, which
indicate that many Supreme Court justices, including some of the most
celebrated, have had substantial experience at the national political
level.\1\ After giving these snapshots, I will explain why I think that
such experience is an important asset that a person can bring to the
Supreme Court. I do not argue, of course, that only people with such
experience should be appointed to the Court, but rather that the Court
serves us best when it contains a mixture of people with different
backgrounds, and among those backgrounds should be some with
substantial national political experience.
---------------------------------------------------------------------------
\1\ My comments draw in part on Mark Tushnet, Constitutional
Interpretation, Character, and Experience, 72 B. U. L. REV. 747 (1992).
---------------------------------------------------------------------------
I believe that constitutional principle shows that nominations come
to the Senate essentially in equipoise, because the considerations
relevant to a burden of persuasion are basically in balance. This
conclusion seems to me supported by the most basic aspects of our
system of separation of powers, famously described by James Madison in
The Federalist 51 as one in which ambition counters ambition. That is,
the separation of powers system works best when each branch--here, the
President and the Senate--take positions that each calculates
independently would serve the American people best.
In the context of judicial nominations, the process of ambition
countering ambition works in this way: The nominee and his or her
supporters can point out that the nomination was made by a President
who presumptively has the support of the people of the United States as
a whole, having been chosen by a majority of them. Senators can
reasonably respond that they too were chosen by a majority of the
American people taken as a whole. Indeed, they can note that the
President was chosen by a majority of the American people in a single
election, capturing the people's views at a moment in time, while
Senators were chosen in a series of elections that, taken together,
might better capture the more enduring values of the American people.
In that connection, questions of timing may matter as well: The more
remote the presidential election is, the more powerful is the Senate's
claim to represent the people as of the time of the nomination.
The historical record is, unsurprisingly, subject to varying
interpretations. One historian describes the Senate's role as
``reactive,'' responding to the initiative taken by the President in
selecting a nominee.\2\ Presidents always have political allies in the
Senate, who almost always take the position that the nominee is fully
qualified for the position and that, in any event, the President's
judgment that the nominee is qualified deserves some deference.
Evidence taken from statements by supporters of a nomination is
therefore, in my judgment, less valuable than evidence taken from
statements by a nomination's opponents. In addition, the confirmation
of a nominee has often been something of a foregone conclusion, which
makes statements of principle on the question of confirmation something
of a free shot by supporters and opponents: The supporters can
structure their comments to lay the groundwork for using the
confirmation as a precedent, and the opponents can dismiss those
statements because they have no effect on the confirmation process.
---------------------------------------------------------------------------
\2\ Rayman L. Solomon, ``Nominees, Controversial,'' in THE OXFORD
COMPANION TO THE SUPREME COURT 595-96 (Kermit L. Hall ed. 1992).
---------------------------------------------------------------------------
These considerations lead me to conclude that the most historically
informed inquiry would examine highly contested nominations, a much
smaller number, of course, than all nominations. Dean Solomon describes
the history as one in which ``politics, policy, and professionalism''
all play a role. He points out that ``policy concerns dominate when
presidents attempt to transform governmental structures or policies and
perceive the Court as a necessary ally in accomplishing that agenda.''
Controversy has arisen when Presidents made selections based on
concerns that the Senate did not share, whether the disagreement was
over the policy course the President sought to set through the
nominations or over the patronage-type politics the President pursued
in selecting a nominee.\3\
---------------------------------------------------------------------------
\3\ For example, the Senate rejected the nomination of Ebenezer
Hoar to the Supreme Court in 1879 because the President represented one
segment of the Republican Party, to which Hoar adhered as well, while
the majority of the Senate formed a different faction in the same party
and sought a nominee from that faction.
---------------------------------------------------------------------------
I would summarize a complex history by saying that, in general,
opponents have never thought that the mere fact of nomination carried
with it any special presumption in favor of the nomination. Nomination
contests have focused on whatever seemed relevant at the time. The
nominee's ideology, the nominee's performance in executive office
pursuing policies with which the Senate did not agree, whether the
nomination would have particularly dramatic effects on the overall
direction of the court, the nominee's background, whether the President
is using the nomination essentially as a patronage appointment or to
appeal to some particular interest group--all this has been fair game.
In my view, that is precisely the way the system of ambition countering
ambition should work.
I turn now to the question of political experience as a
qualification for judicial office. Consider first the membership of the
Supreme Court when it decided Brown v. Board of Education. The Chief
Justice had been Governor of California, the Republican Party's
candidate for the vice-presidency in 1948, and a realistic contender
for the presidential nomination in 1952 until Dwight Eisenhower entered
the race. Hugo Black had been a Senator and a leader in promoting some
of Franklin Roosevelt's most important legislative initiatives. William
O. Douglas had been a presidential adviser and chair of one of the New
Deal's major administrative agencies, the Securities and Exchange
Commission. Stanley Reed had been a state legislator, general counsel
to an important Depression-era agency, and Solicitor General. Felix
Frankfurter had been a close presidential adviser and a major public
commentator on the Supreme Court and the Constitution. Robert Jackson
had been Solicitor General and Attorney General. Tom Clark had been a
close presidential adviser and Attorney General under Harry S Truman.
Even the least distinguished members of the Brown Court had significant
national political experience: Harold Burton had been mayor of
Cleveland and a Senator, and Sherman Minton had been a Senator from
Indiana before his 1940 election defeat, after which he was appointed
to the federal court of appeals.
The substantial political experience represented on the Brown Court
was not unique, or a response to the Court's obstructionism during the
early New Deal, as a second snapshot reveals. The Court in the 1920s
also had several members with substantial national political
experience. The Chief Justice, William Howard Taft, had of course been
president of the United States. James McReynolds had been Attorney
General. Louis Brandeis had been a major public figure, leading the
nation's consumer movement. Joseph McKenna had been a member of the
House of Representatives and, briefly, Attorney General. And George
Sutherland had been a leading figure in the United States Senate, after
having served in the state legislature and the House of
Representatives.
A third snapshot includes the men who have served as Chief Justice.
John Jay, of course, had been an important diplomat for the new nation
and an author of a handful of The Federalist Papers. John Marshall had
been a Virginia legislator, an important legal and political adviser to
George Washington, a member of the House of Representatives, and,
briefly, secretary of state. Roger Taney had been, again, a close
adviser to President Andrew Jackson, secretary of the treasury and
Attorney General. Salmon Chase was a governor and Senator, and
Lincoln's secretary of the treasury, and, even while serving on the
Court, a persistent potential candidate for the presidency. Edward
Douglass White served in the Senate for three years before his
appointment as Chief Justice. I have already mentioned William Howard
Taft. Taft's successor Charles Evans Hughes had been Governor of New
York for two terms before his appointment to the Court, and was the
unsuccessful Republican candidate for the presidency in 1916. Before
his reappointment as Chief Justice, Hughes served as secretary of
state. Fred Vinson was a member of the House of Representatives, and,
after resigning as a federal judge, occupied a number of important
positions in Roosevelt's wartime administration before becoming
secretary of the treasury in 1945.
My final snapshot is drawn from a list of justices provided in the
first pages of the constitutional law casebook of which I am a co-
author. The list is designed, we say, ``to offer at least some sense of
the background, personality, and intellectual style of the justices who
have had the greatest impact on modern constitutional law.''\4\
Omitting the Court's present members, we describe 29 justices, of whom
seventeen, in my judgment, had substantial political experience, almost
all of them on the national level.
---------------------------------------------------------------------------
\4\ GEOFFREY STONE ET AL., CONSTITUTIONAL LAW lxxi (4th
ed. 2001).
---------------------------------------------------------------------------
I should note at this point an important qualification. Of course
determining whether someone has had substantial political experience on
the national level is a matter of judgment, and I have no doubt that
some of my judgments could be challenged. In my efforts to count and
evaluate, for example, I treat Louis Brandeis and Thurgood Marshall as
people with substantial national political experience even though
neither had occupied elective office before they became justices, and
Brandeis had not held even an appointive national office. But I did not
include Lewis Powell in my list of justices with substantial national
political experience, despite the important positions he held in
Virginia's education system during the early years of desegregation and
despite the fact that he had been president of the American Bar
Association. I counted serving, even briefly, as Attorney General as
having national political experience, but what of Justice Byron White's
service as Deputy Attorney General?
The snapshots I have given indicate rather clearly, I think, that
over the course of U.S. history, substantial experience in national
politics has been regarded as an asset for Supreme Court justices. This
is not to say that such experience has been a prerequisite for
appointment, or that justices with such experience have uniformly been
better, according to any relevant criteria, than justices without it.
Rather, it is to say only that the judgment of presidents and Senators
appears to be that having a Court with some justices with national
political experience is valuable for the Court and the nation.
What might explain that judgment? I will identify three reasons, in
decreasing order of importance, for thinking that the Supreme Court's
quality, and therefore the quality of constitutional law, is improved
when some justices have had significant national political experience.
Again, of course, one's view about the quality of constitutional
adjudication depends at least in part on the general understanding one
has about what constitutional adjudication is, and each Senator will
have to assess what I have to say in light of his or her individual
understanding about that question.
The most important reason for thinking that substantial national
political experience is a valuable attribute of Supreme Court justices
is that an important component of what we want from Supreme Court
justices is what Dean Anthony Kronman of Yale Law School calls prudence
or practical wisdom, precisely because justices are called upon not to
articulate principles of justice in the abstract but rather to develop
principles of justice suitable for regulating government in the present
day, under real-world conditions.
We can find practical wisdom in many places, of course, but people
with substantial national political experience have two characteristics
that make them particularly suitable candidates for finding it. First,
they have displayed their capacity to exercise practical wisdom in
their public lives. So, we simply have a larger evidentiary base for
evaluating a nominee's capacity to exercise practical wisdom when the
nominee has been an important public figure. No doubt backroom advisers
and lawyers in private practice can have practical wisdom, but only
those whom they advise will be able to say with confidence that the
nominees are indeed people of sound practical judgment.
Second, an important reason that people become successful public
figures over the long run is that they actually demonstrate their good
judgment. Among other things, success requires that political figures
listen well to people with views different from theirs, and learn how
to respect and to some degree accommodate those views without yielding
on what is fundamental to the political actor. Here substantial
national political experience does not itself give the person a
particular asset, such as knowledge about the realities of government
that he or she can contribute to the Court. Rather, successful
performance on the national political stage is an indication that the
nominee has the valuable character trait of practical wisdom and
judgment that we seek in judges.
A somewhat less important reason for thinking that national
political experience should be regarded as an asset in a judicial
nominee is the sense of reality that people with such experience can
bring to constitutional adjudication. To the extent that Supreme Court
justices are developing doctrine aimed at ensuring that the American
people are governed as well as we can be within constitutional limits,
knowing how government actually works may be a valuable asset. The
usual example given to support this point is that someone sensitive to
the realities of the national legislative process would not dismiss
legislative history as a guide to interpreting statutes.\5\ Another
example might be that of Justice Byron White, the Court's most
articulate defender of the proposition that separation-of-powers
questions should be resolved with an appreciation of the way in which
members of Congress and members of the executive branch are engaged in
long-term interactions. Justice White based this understanding of the
Constitution on his experience as Deputy Attorney General.
---------------------------------------------------------------------------
\5\ I note, though, that to some extent those who argue against
resort to legislative history have an account of statutory meaning
based on a theory of democratic self-governance according to which the
actual operation of the present legislative process is irrelevant.
---------------------------------------------------------------------------
I think it is indeed important that the Supreme Court as an
institution have access to this sense of the realities of governing.
One problem, however, is that those realities change, and a person
appointed in one era might not understand the new realities. Justice
Black, for example, clearly knew what Congress was like in the late
1930s, but he served through the 1960s, by which time the realities of
the legislative process had changed dramatically. He could, and did,
contribute his sense of the realities of governance to the Court in the
1940s, but his ability to make such a contribution dissipated over
time. This consideration suggests to me that Senators should be
concerned that they be presented with some regularity with nominees
with substantial national political experience. A long run of nominees
without such experience is, I think, likely to impair the quality of
constitutional law.
Finally, in conversations about the contributions people with
substantial political experience can make to constitutional
adjudication, sometimes I have heard politicians disparaged as people
who are good at the art of compromise but--for that reason--not well
suited for developing constitutional principles. Designing a statute
that accommodates competing interests, it is thought, is quite
different from articulating a constitutional principle to regulate some
general area like free speech. In the main, I agree with this position,
although I think it fails to appreciate the extent to which politicians
themselves act on principle. Still, I think it worth noting that the
art of compromise is not foreign to the Supreme Court. As with
statutes, opinions contain language whose terms are sometimes
negotiated among the justices, as the inspection of the papers of
various justices at the Library of Congress reveals. A person adept of
explaining to a recalcitrant colleague why a change in language is
desirable and need not impair what the colleague thinks important
serves a valuable function on the Court. To the extent that people with
substantial political experience bring such talents to the job, all the
better. But, of course, those talents are not unique to people with
such experience, so the ability to work out compromises over doctrinal
formulations is the least important asset people with substantial
national political experience bring to the Court.
I should be clear that neither my snapshots nor my normative
argument establish that we should have only people with substantial
national political experience on the courts. For example, having some
grasp of the realities of government is useful, but so is having some
grasp of the realities of business, and having some grasp of the
realities of the criminal justice system, and so on. Different nominees
bring different experiences to the courts, and what seems desirable is
having a decent mix of people, among whom are some with substantial
political experience.\6\
---------------------------------------------------------------------------
\6\ I think it worth noting as well one disadvantage associated
with the nomination of people with substantial national political
experience: The Senators who will consider them in the confirmation
process are likely to have had personal relations with the nominees.
Such relations can enhance the quality of the Senators' judgments, but
they also can distort those judgments: nominee who has been easy to get
along with may mistakenly be seen as wise and prudent.
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To summarize: Historically it has been thought important that some
significant number of Supreme Court justices have substantial
experience in national politics. And there are good reasons, based on
what I think is the best understanding of what we seek in
constitutional adjudication, supporting that judgment. In particular,
judges with such experience are likely to bring a sense of reality to
constitutional adjudication, and, more important, practical wisdom as
well.
Chairman Schumer. Thank you, Professor. I want to thank all
five witnesses. The testimony was varied, but I think right to
the point, and we appreciate it very much.
We may have a vote at five o'clock, so I am going to do 5-
minute rounds and maybe we will go for a second round, if that
is OK.
I want to propose three questions that as a Senator I would
like to ask nominees, certainly to the Supreme Court, but
others, and their answers would not be totally dispositive, but
influential, let's say, or having some influence in whether I
would vote for them.
They are: what is your belief in the First Amendment, how
does it affect your views on whether the Congress should be
able to regulate campaign finance reform? What are your views
on the Second Amendment and do you believe that licensing and
registration of firearms is inconsonant with the Second
Amendment? What is your view on the Federal right to privacy
and how does it affect your views on a woman's right to choose?
I could go on ad nauseam with questions like that, and I
would be particularly interested in Professor Rotunda's and
Dean Kmiec's view on that, but I would want to hear all the
witnesses because particularly Professor Rotunda's testimony
would seem to say those questions should not be asked and that
should not be influential in determining whether we should have
a judge. Now, these are not political questions, these are not
questions involving a particular case. They are questions of
broad judicial philosophy that have relevance to the American
people.
So why don't you start, Professor Rotunda, because I have a
feeling you would think that those are not legitimate questions
for inquiry by this committee, give your reasons why, and then
I will ask others who would disagree to rebut that.
Mr. Rotunda. I don't think those questions should be
answered. Judge Ruth Ginsburg came to Illinois some years ago
when she was on the D.C. Circuit and recalled questions that
were going to be asked of her by a group called United Families
of America. They wanted to test the nominee's ``balance.'' That
is her phrase. These were typical inquiries: can Congress limit
the jurisdiction of the Federal courts in, say, school busing
cases? Do parents have any rights with respect to abortions
performed on their minor children? Present law and practice of
the armed forces bar women from combat. Could that exemption
withstand a constitutional challenge?
She said that United Families wanted these inquiries to
uncover any bias toward activist and she said, ``I was relieved
when Senator Howard Metzenbaum, who chaired the confirmation
hearing the day I appeared, refused to ask the questions. I
found them a frightful prospect.''
I mean, it is a free country: You ask what you want, but I
don't think a nominee should answer those questions. It is
basically giving a promise on how he or she is going to vote on
a particular case and you wouldn't want a nominee like that.
Chairman Schumer. Well, those are not particular cases, but
much broader judicial philosophy. I didn't ask specifically
about any specific case.
Mr. Rotunda. Well, you asked does the First Amendment limit
the campaign financing rules.
Chairman Schumer. Right.
Mr. Rotunda. Does the Second Amendment restrict Congress'
power to restrict arms? You are asking about legal issues. I
don't think judicial candidates should do that.
Chairman Schumer. Any disagreement?
Mr. Tushnet. Well, it seems to me on the Second Amendment
question, I think most of your nominees or people put up in
front of you would say, I know there is this controversy over
how the Second Amendment should be interpreted; I really
haven't examined it in any detail and so I don't have any
formed views on that. I think that would be an honest answer
for many of the nominees. I think it is an appropriate question
to ask and I think that is certainly an appropriate kind of
answer.
On the campaign finance question, I think it would be
perfectly proper for somebody to say, well, you know, Buckley
v. Valeo is on the books. There is now 25 years of campaign
finance law. The Supreme Court has decided. They have
identified a series of considerations about the appearance of
corruption and whether that is implicated by particular forms
of campaign finance regulation.
Now, you could go either way. One nominee might say, it
seems to me that they have struck the balance somewhat in a way
that makes me a little uncomfortable. They have identified the
right kinds of things, but I am not sure which way I would go
on particular cases. Or they might say they have identified the
right kinds of things and, on the whole, the law that the Court
has developed seems basically OK by me.
Now, that seems to me revealing of what we have been
calling here judicial ideology, a way of thinking about--
Chairman Schumer. I am sort of at a loss as to what
Professor Rotunda would have me--why we would have a hearing
here. Now, someone pointed out on the other side that we didn't
have hearings for a while.
Mr. Rotunda. When you had them, they were closed to the
public and the nominees could not testify.
Chairman Schumer. So what is the purpose of the ``consent''
part of the Constitution?
Mr. Rotunda. Well, what we have been doing for the last 200
years, which is--
Chairman Schumer. Well, no. These questions have been asked
before.
Mr. Rotunda.--talking about integrity.
Chairman Schumer. Just integrity? OK.
Mr. Rotunda. That is right. Take the Second Amendment
question. If you can ask that question, the Senator is going to
be saying, OK, you haven't thought about it; think about it for
a month and come back to me because I would like to know your
answer on that. And we shouldn't do that.
Chairman Schumer. Why don't we have Professor Resnik and
Professor Levinson?
Ms. Resnik. Imagine that you asked the question, does the
14th Amendment prohibit discrimination against race and are
single-race schools illegal? No one would object to your asking
that question.
Chairman Schumer. Would you, Professor Rotunda?
Mr. Rotunda. No. That is what the law is.
Ms. Resnik. But my point is--
Chairman Schumer. Because it is settled law? Is that the
reason?
Mr. Rotunda. Yes.
Ms. Resnik. But actually what the real meaning of Brown has
not yet become settled law.
Chairman Schumer. Well, what if I believe Roe v. Wade is
settled law?
Mr. Rotunda. Well, the Supreme Court has pretty much
settled it for the last 25 years.
Chairman Schumer. So my third question is a legitimate
question?
Mr. Rotunda. Well, no. I think if you ask somebody what has
the Court ruled on this, that is just like looking at a law
book; you answer the question. If you are asking somebody how
they are going to rule on the issue, I think a lower court
judge should follow the U.S. Supreme Court. That is what a
judge should say. Is that helpful to you?
Chairman Schumer. It is certainly helpful in knowing
someone's judicial philosophy to me. It is not dispositive, but
it is helpful. To me, it is as important as the law school they
went to or the fact that they haven't had anyone file anything
against them at the bar association. Particularly for a Supreme
Court nominee, you bet it is helpful. I think that is part of
my job. I think I would be derelict in my responsibilities if I
didn't ask those questions.
Go ahead, Professor.
Ms. Resnik. I would like to also push you a little further.
In addition to asking and looking at their answer, you should
go further and look at what they have done in their past.
Chairman Schumer. Of course.
Ms. Resnik. We need to not just look at the answer in a
given time. The role of the Senate confirmation hearings is a
positive one in developing the legal rules. The good news is
since 1925 we have been doing it, and the better news is that
more recently, we have been doing it in public. Doing it in
public creates a public forum for debating what our law ought
to be. When you confirm someone, you are endorsing the notion
that this person ought to have the privilege of serving as a
life-tenured judge.
Chairman Schumer. I will let Professor Levinson answer, but
I am sort of befuddled that we are allowed to ask questions
about settled law, but not about unsettled law. Well, I would
like to know the big book in the sky that says what is settled
and what isn't settled. On so many of the issues, the side that
agrees with them regards it as settled and the side that
disagrees regards it as unsettled. I am sure there are some
crazy people in this country who don't think the 14th
Amendment, as Professor Resnik brought out, is settled. It is a
weird path to go down.
Professor Levinson?
Mr. Levinson. I think the thrust of Professor Rotunda's
argument is that the Senate should go back to its pre-1925
practices, and I think there are very good reasons that the
Senate has over the years rejected those. In my earlier
comment, I mentioned that the Framers did not imagine political
parties. I think it is also fair to say that nobody imagined
the practical power of the Federal judiciary.
Whatever side you are on, I suspect that all of us have, at
least in conversation, referred to the imperial judiciary, even
if we have been referring to different judges and different
judiciaries. As a practical matter, everybody knows it matters
who is on the courts. You are interested and the public is
interested.
If you don't stop holding hearings at all with the judges,
the second best model for Professor Rotunda is the Scalia
hearings. But Justice Scalia quite remarkably--and I will kind
of give him credit for his gumption on this--refused to answer
a question, I believe, about Marbury v. Madison because, after
all, the issue of judicial review and judicial power is the
fundamental issue. Professor Tushnet has written an excellent
book attacking the idea of contemporary judicial review, and if
you take this seriously, there really is nothing to hold
hearings about.
Chairman Schumer. You are right. It gets to a point of
absurdity, I guess.
Do you want to have the last word, Dean Kmiec, because you
didn't have a chance on this one?
Mr. Kmiec. Well, I doubt it will be the last word, but an
observation. I think the difficulty with the questions you pose
may be the level of specificity. It would be a preferred
alternative to ratchet it up to the methodology that the
particular nominee would use in the context of--
Chairman Schumer. Well, I specifically tried not to make it
a specific case.
Mr. Kmiec. Not to make it a specific case. I think this is
a delicate line to observe because, Mr. Chairman, part of your
question is really a question about the rule of law. As you may
remember, in my testimony I said it was entirely proper to ask
questions about fidelity to the rule of law and questions about
stare decisis and the like.
But in terms of actually evaluating a judicial nominee, I
think you want to know method. You want to know is there a
difference for this nominee between statutory interpretation
and constitutional interpretation. How does he approach both
questions? And perhaps as you edge ever closer to a particular
substantive area, you run the risk of not being able to
anticipate where cases are going to come from, and that is what
threatens the independence of the judiciary.
Chairman Schumer. I would never want to press a potential
nominee on a specific case. I would never say on the evening of
March 2nd, such and such occurred and this is what happened and
how would you rule?
In fact, I specifically avoided, I believe, in my question
mentioning Buckley v. Valeo or Roe v. Wade because I didn't
even want to get into that level of specificity. But to explore
the very question that you have posed--how does someone reason
and how does someone look at statutory rulings--you need to ask
questions like this.
Mr. Kmiec. I think those questions are in the ballpark, but
I think the one thing that you would have to be alert to very
assiduously is the moment that the citations start to come out.
Chairman Schumer. From which side of the table?
Mr. Kmiec. On either side of the table, because for the
nominee to awkwardly start making gratuitous, non-judicial
comments about the cases or for the questions to start being
put to him starts to undermine, I think, the judicial process.
Chairman Schumer. Just one point here. Some of our nominees
have very little judicial experience, but some have been judges
at the State or lower Federal courts for 20 years. I would need
less of an answer for the latter type of nominee than the
former type of nominee, don't you think?
Mr. Kmiec. Well, without a doubt, Professor Resnik made
that point about reviewing their past behavior, whatever it is,
whether it be prior judicial opinions, whether it be law review
writing, whether it be speeches that they have given to the bar
association.
But, again, all of those things seem less important than
whether or not the person has manifested an attachment to the
seriousness of the position that he has been nominated for in
terms of the rule of law, his integrity to abiding by the
precedents as they exist, depending on the level of court we
are talking about here now--different judges are going to have
different responsibilities with regard to that--and, of course,
fundamental fitness, preparation, learning in the law.
Chairman Schumer. They are all important, and I would say
no specific is dispositive to me, at least.
Senator Sessions, I appreciate your indulging me.
Senator Sessions. This is most interesting, Mr. Chairman. I
appreciate this fine panel. We have had a lot of good
discussion about this matter and I think it is worthy of
discussion. I think it is a free country and we ought to talk
about it, but I don't believe that we need to alter our
historic pattern of giving deference to the President.
I believe Senator Simon said he wished he had not voted for
Scalia, and would not had he come again. But does that mean
that I as a person who believes in restraint should vote
against Ruth Bader Ginsburg and other judges that got
overwhelming support in this body just because we don't agree
with all aspects of their legal, judicial or personal politics?
I think it is a dangerous road for us to get into, that we go
down that road, and I would share that.
I think the greatest danger, as Senator Hatch has stated,
is do we have a judge who is an activist? An activist is a
judge that allows his or her personal political or
philosophical views, whether liberal or conservative, to
override their commitment to the rule of law.
I believe Professor Rotunda noted that our laws are
respected around the world. Indeed, I am absolutely convinced
as I become older that the strength of the American economic
system, judicial system and political system is our legal
system. You can expect to go to court and get a fair and
consistent verdict in any court in America normally, and if
not, you have a good chance of getting it reversed. It is a
good legal system. It has worked by keeping politics out of it.
We need to keep politics out of the courts.
Now, I know there is afoot in this country a philosophy,
particularly in law schools, that believes that all law is
politics, that everything is politics and there is no truth,
that you can redefine words to mean anything you want them to
mean, and therefore a judge has a power to carry out an agenda.
That is a threat to democracy. That is a threat to democracy
because judges are lifetime-appointed; they are unaccountable
to the people, they are anti-democratic. It is the only aspect
of our system that I know of that is that way, and we ought not
to put somebody on the bench that has an agenda to achieve.
That is the key aspect.
I remember, and I will never forget it, in the early 1980's
Hodding Carter when this debate was going on was on ``Meet the
Press'' and he said we liberals are frustrated because we can't
expect the courts to carry out our political agenda which we
can no longer win at the ballot box. Basically, that is what he
said, and I think that is what the key aspect of it is here.
We want to have judges, whether they are liberal or
conservative, who have fidelity to the law and will subordinate
themselves to it. Now, if you start asking them about what is
your view on firearms or campaign finance reform, a judge who
thinks his answer might not be in accord with one more than
half this Committee is probably in a difficult position.
I would submit to you honorable people can disagree on
whether Laurence Tribe is right and the right to bear arms is a
personal right guaranteed under the Second Amendment or not. We
ought not to just decline to confirm a nominee who may disagree
with us on that point or any other single point. The judges are
all over the lot. We have got people in this Senate who believe
that the burning of a piece of cloth is speech and ought to be
protected, and so does Scalia. The same group of people believe
that we can pass a law in this Senate that says a group of
American citizens can't come together and raise money and buy
an ad on television to say Senator Jeff Sessions is a no-good
skunk. They say that doesn't affect the First Amendment right
of free speech and press.
I say those are serious matters and I don't know the answer
to them. I don't expect every nominee who comes before us to
answer those questions. Hopefully, if it ever comes before
them, they will study every brief and they will study history
and give it serious thought.
Mr. Chairman, I think you can't prohibit a Senator from
asking a lot of the questions you are talking about. I think
you do get an insight from some of those questions, but we have
got to be very careful that we don't politicize this process.
That would be my concern.
I will go back to you.
Chairman Schumer. You have got plenty more time.
Senator Sessions. I have questions, but I will let you go
next.
Chairman Schumer. Great. I just wanted to follow up on what
you said. The problem here is what people see and where you
come from. You said Orrin Hatch said ``activist judges,'' and I
understand where people in the 1970's and 1980's and others
particularly said we have a Supreme Court that is so far away
from what the American people think that they are making laws
that they can't get through Congress.
I would argue that now there are a lot of people who feel
that the activists on the Supreme Court are certainly not Judge
Ginsburg or Judge Breyer, the two Clinton appointees who tend
to be regarded at least by the people on the left as moderate.
I like moderates. When I appoint judges in New York, I
don't want far-left people because I have seen them in New York
City make laws that are ludicrous. I don't want them and I will
tell you stories, between you and me, of people I have rejected
because some of their decisions, even though my heart would
agree with them, were so impractical and so beyond the bounds.
They were just saying I am a judge and I want to put it my way
on homeless issues, on things like that.
I would say to you that, here, lots of people regard the
real activists on the Court as Scalia and Thomas. You may say,
well, they are strictly interpreting the law and they are not
activists. But some of us would say the Commerce Clause has
been interpreted since the 1890's and the 1912s, you know, the
progressive era, and certainly the New Deal, as allowing this,
this, this and this. And all of a sudden we get some people who
say, oh, no, let's go back to the way the Commerce Clause might
have been in 1840.
I would say, or some would say--let's not even bring you
and me into this--many would say that is activist and the
danger is having too many of those activists.
Senator Sessions. Well, let's talk about that.
Chairman Schumer. Well, I want to get the panel's view on
this.
Senator Sessions. All right. That would be just as well; it
would be better.
Chairman Schumer. And then we will talk about it, but the
same, exact arguments that many on the right objected to with
the Warren Court are being used now by many on the left to
object to the present Court. And I am not talking about Bush v.
Gore. I don't quite agree with Professor Levinson on that. He
is the President and that is that. I don't think it was great
reasoning, but it doesn't influence my views on how I want to
vote on judges.
Senator Sessions. He won anyway, the recounts show.
Chairman Schumer. Well, we won't get into that one now. I
am trying to avoid it, Jeff.
Senator Sessions. You started it.
Chairman Schumer. And so particularly when you have the
present President Bush who said he wanted to choose judges like
Scalia and Thomas, who are not--I forget the words now, but we
can read them into the record--who are not big liberals and who
are not translating the law too far, many in the country, and
not people just on the far left would say because the President
has decided to nominate people who are such activists,
activists on the right as opposed to activists on the left,
there is an added burden to stop him, just using the same
analogy used, but mirror-imaged.
I would like to know people's view on when a President
seems to be invoking some degree of judicial philosophy in whom
he chooses, does that put a greater burden on the Senate to
bring out who the nominees are? Does that mean the judges
should have to go forward?
This time, I will call on Professor Resnik first.
Ms. Resnik. Well, I would just like to start by working on
these words ``to act.'' Imagine you are a judge in a particular
case and you have heard all the testimony and you just say,
wow, I really can't decide, I pass. We don't let judges do
that; they have to judge. To judge is to act. So all judges of
any stripe, including the moderates, are acting in rendering
judgment.
Then the question is what is their license? The facts in a
case are the first basis for their license. One of the problems
with the current majority of five on the Supreme Court is that
many of their decisions are what I would call ``factless'',
which is to say that their opinions are theoretical discussions
of the structures and the meaning of the Constitution, but the
decisions do not actually struggle with the facts in the
records, including the records made here in Congress.
So when are judges moving outside their realm? I noticed
that Boyden Gray and I would say exactly the same thing. Judges
should not legislate. What judges need to do is, A, hold a
presumption in favor of and deference to Congressional
statutes, and B, decide based on facts and arguments on whether
to shift legal rules, and C, but try to make narrow rulings.
I am a judicial conservative in the sense that I think
judges ought to do less rather than more. In that sense, the
real concern now is that courts are striking statutes with
breathtakingly general statements. For example, take the deeply
atextual approach to the Eleventh Amendment. For those who care
about the text of the Constitution, one of the most remarkable
aspects of the current 11th Amendment jurisprudence is that
some of the majority opinions state that it is not the text of
that provisions that matters it is what these justices believe
it supposed to mean that counts. That is where I think we move
into a form of aggressive judicial behavior. All judges must
act; what is objectionable is the take on aggressive
expansionist authority.
If the President is saying that such an aggressive posture
is his model of a desirable judge, then your work is all the
greater, particularly in a split government. In a split
government, found a split election, we need to be sure that the
people who are the new judges really are judges for us all and
not appointed to forward only a particular, narrow agenda. So I
think you actually have a bigger job now than you might have
under other circumstances.
Chairman Schumer. Professor Levinson?
Mr. Levinson. I agree with most of what Professor Resnik
has said. I confess I don't find the word ``activist'' very
helpful on either side, and in terms of Senator Sessions'
comment about law and politics, I would return to Justice
Frankfurther's comment about the idealized political pictures.
Whatever my views about Bush v. Gore, I am sure that the
majority believes that that is the accurate political picture
of the Constitution, just as I am sure that the dissenters
believe that is the actual constitutional picture.
I think the point of the Frankfurter quotation and the
Justice Breyer quotation is precisely that law is complex, is
controversial, is unclear, especially the higher up you go in
the judicial hierarchy. I have no doubt that the comments made
earlier that most district judges will come out the same way
most of the time--we might quibble about the percentages, but I
suspect you are right.
But I think that as you go higher in the judiciary, the
cases are going to be more difficult, more controversial. And
then I think to keep with the Frankfurter metaphor, the lens
you use, the filter you use and the like, are thoroughly
sincere. I think that all of the people we are talking about
are people of integrity, but they are using different filters.
They do look at different things and you come out sometimes
with profoundly different pictures.
I think that the question about inquiry into ideology is
precisely--and this metaphor might come to an end--precisely
what camera you are going to use, what kind of equipment you
are going to use. I think it is perfectly proper to ask those
questions, but I really don't think the words ``activist'' or
``restraint'' are at all helpful anymore. I think they are
simply labels to attack people whose pictures you basically
don't like.
Chairman Schumer. Professor Rotunda?
Mr. Rotunda. Well, Justice Scalia a few months ago wrote
the opinion that banned warrantless searches using high-
technology, heat-seeking devices. Justice Stevens was in the
dissent. Maybe when President Bush says he wants to appoint
Justices like Scalia, he means people that respect our Fourth
Amendment privacy rights. Maybe that is what he means.
How in the world he is going to find these people, I don't
know. I mean, you could ask somebody, do you agree with Justice
Scalia's opinion? And I guess the answer would be it is the law
now; lower court judges are supposed to follow it. But
otherwise, I don't think Presidents, any more than Senators,
are able to predict with any kind of accuracy.
Chairman Schumer. President Bush, when he mentioned Scalia
and Thomas, mentioned the words he didn't want liberal or
activist judges. I believe that is in the quote.
Mr. Rotunda. That is right.
Chairman Schumer. I think he was much clearer than you are
giving him credit for.
Mr. Rotunda. Professor Resnik doesn't believe in activist
judges. You want moderate judges, we all want moderate judges,
but that is a level of generality that I don't think really
helps a lot. I think that if we look to some of these--
Chairman Schumer. How do we find them?
Mr. Rotunda. What?
Chairman Schumer. How do we in the Senate help find them if
we want them, or how does the President find them? If none of
us can ask the questions that I asked in the first round, I
don't get it.
Mr. Rotunda. Some things are impossible, like trying to
square the circle. If you wanted to look at somebody's
background, the Senate would have rejected Hugo Black, who was
a card-carrying member of the Klan, and still had his card when
he was a Senator.
Chairman Schumer. But the exception doesn't prove the rule.
Mr. Rotunda. No. I think actually that that is the rule,
that we tend always to guess wrong. When we reject somebody on
the bench, we never know what kind of judge he will be, but we
have accepted people on the bench who have really surprised us
all the time. And I think they ought to because that is why we
give them lifetime tenure and salary protection. They are not
beholden to the President or the Senators, and they shouldn't
be.
Chairman Schumer. Do you have any historical perspective on
this, Professor Tushnet?
Mr. Tushnet. Well, I want to reiterate the point I made
earlier that, as a general matter, you can predict reasonably
well. If you could predict as well on the stock market as you
can predict about judges, you would be a very rich person.
It just seems to me, of course, there are individual
exceptions and, with individual judges, particular cases where
things are somewhat surprising. But I don't think President
Reagan is disappointed in his appointment of Justice Scalia. I
think he wanted a conservative, activist judge and got one.
Now, he might not like the flag-burning decision. I have no
idea about the Fourth Amendment stuff, but on the whole he got
what he wanted.
Chairman Schumer. You can always point to exceptions here
and there. Otherwise, we might as well just go Aristotlean, was
it, or Plato or Socrates who said we ought to choose people by
lot because none of these questions matter because we can't
predict?
Ms. Resnik. I want to disagree a little bit with Professor
Levinson's notion about a focus only or primarily at the higher
levels of that Judiciary. Look at the district court judgments.
Some are reading even the current Supreme Court's Commerce
Clause jurisprudence for more than it is worth. It is in the
lower courts where the meaning of Brown of the permissiblility
affirmative action is debated. Lower courts are parsing the
meaning of the Child Support Recovery Act, of the 11th
Amendment.
I want to underscore that the Senate's job shouldn't be
just seen as a sort of one-shot play where you put in an
appearance for the purposes of the United States Supreme Court,
or even some of the high-visibility appellate court judgeships.
To me, the real question is how to help the Senate have the
wherewithal and stamina to do the needed inquiry for this life-
tenured position time and time again. How are you going to
develop and embrace that role? How can you institutionalize
practices?
Chairman Schumer. Good question.
Ms. Resnik. The judiciary at the beginning of the twentieth
century was 70 to 100 people. We are now talking about 700 to
800 lifetime appointments. The stakes are high each and every
time. To me, the question is how can any of us help you augment
your resources so you do undertake the inquiry not as a show,
but as a serious effort to express the degree to which we all
cherish the Article III judiciary. The Senate and the President
together constitute this other branch with deep respect for it.
How can we help you institutionalize processes that express
that approach and that make this serious inquiry go forward?
Mr. Kmiec. And ideology isn't it. Respectfully, there is a
fundamental divide between two questions. One question is to
the nominee: how will you go about your job, how will you go
about deciding? The other question is how will you decide?
The question, how will you decide, is entirely
inappropriate, I respectfully suggest to this body. The
question, how will you go about deciding, is the difficult and
the tough one, the one that I think Professor Resnik just
alluded to. But it is also the one that Senator Sessions picked
up because, in essence, it is asking the nominee, do you
believe that the language this body, the Congress of the United
States uses has meaning and can be ascertained with reasonable
effort from the statute itself, from the statutory placement of
its words, from the underlying purpose that gave rise to the
statute in the first place? Will you make a faithful effort to
ascertain our meaning so that the politically accountable
branch will, in fact, govern in the United States? That is the
question.
Chairman Schumer. Professor Resnik wouldn't disagree with
you. She is just saying some of the present members are
ignoring that and we ought to find out if they will continue to
ignore it.
Is that right? Is that a fair statement?
Ms. Resnik. Absolutely.
Mr. Kmiec. But be careful here. The evidence of how they
are ignoring it cannot be proved by that you dislike their 11th
Amendment jurisprudence or you dislike their Commerce Clause
jurisprudence or you dislike their holding on a particular flag
case. I may dislike them, too.
The question is did they faithfully go about their business
as a judge seeking to ascertain in the text of the
Constitution, the structure of the Constitution, the history of
the Constitution what it means to have a First Amendment right
of free speech. Did they go about doing that? And if, in fact,
they fairly went about doing that, then the outcome is far less
important because you and I can't anticipate the cases that are
going to come before them.
We can anticipate whether or not they have the legal,
mental capacity and the disposition to fairly carry out their
function. So, again, the difference is how you go about
deciding, as opposed to how will you decide.
Chairman Schumer. Go ahead.
Mr. Levinson. Could I suggest actually one additional
question, and I would be very interested to hear particularly
Professor Rotunda's and Dean Kmiec's responses. I think it
would be perfectly proper to ask nominees if they thought it is
proper--and what they would do--to time their leave-taking from
the Federal judiciary with regard to the political identity of
the President or the Senate.
I think there is no doubt, for example, that Justice White
and Justice Blackmun timed their resignations to wait for a
Clinton presidency. There have certainly been similar
suggestions with regard to the current Court, and one can look
through our history--
Chairman Schumer. Professor, some would have us believe
that never, ever happens.
Mr. Levinson. But that is demonstrably false, and it does
seem to me that this is a very clear and important way that
politics injects itself into the judicial role if, by judicial
role, we mean the way one leaves that role gracefully.
This does not ask anybody to talk about a future case, to
promise a decision on the merits or the like. It simply asks,
in effect, whether one ought to take into account the politics
of appointment. And to the degree that we do believe that the
politics of appointment are taken into account in timing
resignations, I think it is certainly a matter worth hearing on
some other day whether there is anything that can be done about
that, short of abolishing lifetime tenure.
Chairman Schumer. Go ahead, Professor.
Ms. Resnik. It is the politics of authorizing judgeships,
as well, because the Congress increases the number of life-
tenured judgeships under certain circumstances and not under
others. Just last year, under the prior administration, we were
hearing from members of the opposing party in Congress that we
didn't need more life-tenured judges because the benches were
full enough. Now there has been a change in administration,
some of the people who had opposed additional appointments for
the Fourth Circuit or the D.C. Circuit are suddenly saying that
now we need more life-tenured judges. So the rhetoric around
the need for appointments is deeply steeped in politicals.
Chairman Schumer. If you ask the average American person
does politics have anything to do with the role of selecting
judges, and even the way judges decide, they say of course it
does. And it is not the worst thing in the world, they would
say.
I understand the countervailing argument and that we can't
just have someone's politics decide things. That is why we have
a system of law and that is why we have judges interpret the
law. But the opposite argument is like the gambling in
``Casablanca.'' It is somewhere in between, and that is what we
are trying to figure out here, I think.
Go ahead, Dean, and then Senator Sessions has been very
patient with me.
Mr. Kmiec. I think we are trying to figure that out. I
would disagree a little bit with what you report to be the
conversation from the man on the street. I think he would
readily admit, thinking through the nature of the appointment
process and where the Constitution assigns the appointment
responsibility to the President of the United States--Alexander
Hamilton says the Senate will have no choice in the selection
of nominees. They can, of course, reject the nominees given to
them, but they have no choice in the selection. You know this,
as well. Justice Scalia, from the bench, in the patronage cases
articulates how odd it is for the Court to put patronage off
limits in those cases when, in fact, the Justices themselves
emerged out of a political process.
But we do understand from the guarantee of independence of
life tenure and no salary diminution that, in fact, these
judges and Justices will dispassionately, as much as that is
humanly possible, aspire to the rule of law. And the rule of
law is still what Blackstone and Dicey and all the other great
authors told us it was. It is to be governed by the written
word, not arbitrary exercises of power. It is to extend
equality of treatment to rich and poor alike, and to people of
all races alike, and not to selectively apply the generally
prospective law. That is what we want out of our judges.
I think, therefore, Mr. Chairman, they would disagree with
you on the second point. They would not expect a true judge who
was trying to do his job to make a political decision in terms
of the writing of an opinion.
Chairman Schumer. They would say that the judge should
aspire to be as dispassionate and neutral as possible, in my
judgment anyway, but they would admit that some types of
politics enter the process. And when they ask what we do, I
think they would say because we are more political, so to
speak, without lifetime appointments, politics enters into it
more. The quotes I read from my colleagues here before indicate
that that has been the case before as well.
Mr. Kmiec. I am from the Catholic University of America and
I admit sin as well, but hopefully don't aspire to it.
Senator Sessions. I think that is a point, Chuck. We just
need to be sure that as we go through this process what we do
doesn't acknowledge, affirm or encourage the politicization of
the courts. That is critical. If we do that, we have done
something badly. I think if every time we bring a nominee up
here we pound away at them over their personal political views,
I think we are going to be not encouraging them to act
independently on the bench, but to feel their confirmation was
based on saying the right things, and encouraging the public to
have less respect than they do today for the independence of
the courts.
Chairman Schumer. I would agree with that. I would just
simply say what is politics and what is judicial philosophy are
two different things, and the latter belongs as part of our
inquiry, and always has and always will. That is all. To call
judicial ideology politics--you can get into semantics, but it
is not, I think, what people are referring to. At least I am
not.
I think Professor Rotunda wanted to say something.
Mr. Rotunda. There are so many things to say. It is so nice
that everybody is talking about me.
When you say President Reagan was happy with his
appointment of Justice Scalia, I don't know. Certainly, on
things like Fourth Amendment people were surprised. If abortion
was the big issue, which many people said at the time, what
about Justice Kennedy?
I point out in my paper if a baseball team can bat .500,
that is great. But a President on the Supreme Court only gets
between zero and one appointment every 4 years, 2 in his 8-year
term. President Clinton got 2 in his 8-year term and both of
them ruled against him in Jones v. Clinton. That probably hurt.
And that is, of course, on the U.S. Supreme Court where we pay
a lot of attention. What about the trial court, the district
court, and the court of appeals?
The fact is, as Judge Edwards pointed out, you cannot
predict how these judges will rule based on who appointed them.
And, of course, we are talking not just about tomorrow, but 5
or 10 years from now. We don't know what the big issues are.
When Justices Kennedy and Souter were appointed to the Court,
nobody knew about New York v. United States. That issue wasn't
even on the horizon.
So I think it is difficult, but you don't choose by lot. I
think you want to make sure that the person is well-qualified
as a lawyer and has experience either as a practitioner,
academic, or in prior government service. Those are the things
you look at before to make sure that the questions that come to
them they will be able to understand and try to make sure they
have an open mind.
We have had some great judges. Abner Mikva was a partisan,
a U.S. Congressman, but a great judge. When he came to my class
once, he said of one case on statutory interpretation, I knew
what I wanted as a Representative, but it wasn't in the record
and so I had to rule against what I knew in my heart Congress
really intended. Now, not all judges will act with that kind of
self-restraint, but the great judges do. That is why he was a
great judge, although when he was not a judge, he was a
Democrat and Congressman. But when he put on the robes, he
acted as a judge.
Now, I am not surprised that a Democratic President
appointed him rather than a Republican President. To the victor
belongs the spoils. It is not surprising that people choose
members of their own party, but they shouldn't choose anybody
simply because he is of their own party. They should choose
people who are qualified, such as Judge Friendly rejected his
own article in one of his opinions--and that is why he became a
good judge because he wasn't tied by the past. He tried to have
an open mind.
How do you choose people who have an open mind? I guess if
I could bottle it, I would sell it and make a mint. But I think
the way we have been doing it for the last 200 years,
particularly the last century, has worked well. That is why I
suggest we not change what we are doing, because we have
produced the best judiciary in the world under both Republican
and Democratic Senates and Republican and Democratic
Presidents.
Ms. Resnik. Just for the clarity of the record, I should
add that Judge Edwards was writing in response to a series of
law review articles by Professor Ricky Ravesz of N.Y.U. Law
School. Professor Ravesz's essays are empirical studies of the
D.C. Circuit that show a cohort or collegiality effect. The
judges are identified by the President that nominated them. It
is not whether they are themselves personally Democratic or
Republican, but they are coded by reference to the party of the
President who nominated them.
In those studies, Professor Ravesz reports that there is a
pattern. When two Republican-appointed judges or two Democrat-
appointed judges are together, there are patterns of voting.
Judge Edwards disagrees with that analysis, and there has been
a series of backs-and-forths between them on this issue. My
point is that some empirical literature suggest and verify
Professor Tushnet's elegantly put ``good bets'' point. There
are a number of studies that I am sure any of us who are
teachers of the Federal courts would be happy to forward to the
Committee.
Mr. Levinson. Certainly, you can understand the
practitioner's devotion to forum-shopping and trying to get it.
In Texas, we are particularly familiar with forum-shopping on
plaintiffs' personal injury suits. Rightly or wrongly, good,
experienced lawyers believe that they can predict some fairly
important things, though no doubt they also do strike out on
occasion.
Mr. Rotunda. Of course, in Texas the state have elected
judges and some litigants want to get to Texas State court. It
is amazing that throughout the country, it is the appointed
judges that do better. Illinois has primarily an elected
system. The deans of every law school in the State of Illinois
for years joined the American Judicature Society in asking for
an appointed system.
When you have an appointed system, you just have a better
system. That is the system we have now and it works well. It
worked well under President Clinton, under the first President
Bush, President Reagan, President Eisenhower, and so on. It has
worked well this century and I am concerned about tampering
with it.
Chairman Schumer. On that note, we are going to thank our
witnesses for what I think was an excellent exchange and helped
elucidate things. I thank Senator Sessions again for his
patience and camaraderie on this, and I thank everybody who
stayed until the end of the hearing.
Senator Sessions. Mr. Chairman, I would like to include in
the record two articles written by Joseph Califano and Roger
Pilon.
Chairman Schumer. Without objection.
The hearing is adjourned.
[Whereupon, at 5:15 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow:]
[Additional material is being retained in the Committee
files.]
QUESTIONS AND ANSWERS
Responses of Stephen B. Presser to questions submitted by Senator
Thurmond
Question 1. Assume the President nominates someone for a district
or circuit judgeship who appears to be well qualified to serve because
he or she, for example, has extensive legal experience, is well
regarded in the local legal community, and has not had any character
issues arise in background checks. At this point should the nominee
have an affirmative burden to prove to the Judiciary Committee and the
Senate that he would be confirmed and deserves the votes of senators,
or should the opponents to the nominee have some obligation to show
that the objective criteria for being qualified are not sufficient for
a particular candidate?
Answer. In my opinion, Senator, if a judicial nominee appears to
possess the objective qualifications which indicate high standing in
the legal community of a kind that you have suggested, it is profoundly
wrong to suggest that such a nominee has an ``affirmative burden'' of
proving to the Judiciary Committee and the Senate that he or she
deserves to be confirmed. The role of the Senate, as I understand it
from the text of the Constitution and from the contemporary exposition
of the Constitution, such as the Federalist Papers, is to fulfill an
``advise and consent'' role, and not to be a ``co-partner'' in the
nomination process. As we explored in our hearing on 26 July, and as I
tried to make clear in my written testimony submitted in connection
with that hearing, the Senate's role is to reject a nominee where the
President has failed to choose him or her based on his or her
qualifications for the job, and has made a selection of a person who
lacks the character or expertise for the job, or a person who has been
chosen not because of qualifications, but because of particular
personal, family, or social connections to the President or others.
Where the President has proposed the kind of nominee you suggest, I
believe that the President's choice is entitled to at least a
presumption of appropriateness on the part of the Senate, if not, as
has traditionally been true, some deference on the part of the Senate.
The President's role is to select the nominees, and just as each branch
is supposed to defer to the others in the case of specially-designated
functions (for instance, there is a presumption of constitutionality
with regard to acts passed by Congress when these are reviewed by the
judiciary, and our tradition calls for the executive to carry out the
laws passed by Congress and the orders of the Courts) so the Congress
should, give a presumption of fitness for office to the President's
nominees. As you imply, opponents of nominees to the bench should have
the burden of proving a particular nominee unfit for the bench. It
would be a strange legal system that gives defendants in criminal cases
a presumption of innocence but presumes that judicial nominees are
guilty of unfitness for the bench.
Question 2. Do you view judicial philosophy as a better criteria
for a Senator to consider in evaluating judicial nominees than
political ideology, and do you think it is important to distinguish
between terms such as these when discussing the Senate's role in the
confirmation process?
Answer. As I tried to make clear in my written testimony submitted
in connection with the hearing on 26 June, I am convinced that
``judicial philosophy'' is a much sounder criteria for a Senator to
consider in evaluating judicial nominees than ``political ideology.'' I
do think it is very important to distinguish these terms. As both Lloyd
Cutler and C. Boyden Gray pointed out at the hearing on 26 June, it is
difficult to imagine a better way to discredit the judiciary than to
pick judges based on ``political ideology.'' Our whole republic, our
whole national creed that ours is a government of laws not men, is
endangered if we begin to pick judges based on ``political ideology.''
In order to implement the rule of law we must have judges who believe
that objective determinations of the law and Constitution are possible,
and that those interpretations are to be guided by the original
understanding of the provisions to be interpreted. Any other ``judicial
philosophy'' results in judges legislating, and not doing their
constitutional task of interpreting the law. Accordingly, it is
appropriate for the President to select judges who will interpret
rather than make law, and it is appropriate for the Senate to satisfy
itself that this is what the President has done. To ask for the
selection of judges based on ``political ideology,'' however, suggests
that the judge's politics, rather than his or her understanding of the
law, will dictate results. This is profoundly wrong, at least if we
believe that there is a difference between law and politics. It is true
that there are some in the legal academy and, perhaps, in legal
practice, who do not believe there is any difference between law and
politics, but, as I have tried to make clear here and in my testimony,
if there is no difference between law and politics our most basic
governmental principles and beliefs for the past two hundred and twelve
years have been wrong. They are not wrong, and there is a difference
between law and politics, which it is the job of our high officials to
recognize.
Question 3. If Senators vote on judicial nominees based on the
nominee's views on particular political and public policy issues, is
there a danger that the Judicial Branch will be viewed as simply
another political institution no different from the Legislative Branch?
Answer. Yes, indeed, if Senators vote on judicial nominees based on
the nominee's views on particular political and public policy issues,
there is a very great danger that the Judicial Branch will be viewed as
simply another political institution no different from the Legislative
Branch. As I tried to make clear in my testimony submitted at the 26
June hearing, there is no issue that could be more important to the
future of the Republic than this one. As the recent Presidential
campaign emphasized, and in particular, with regard to the campaign
promise of the then Governor Bush to appoint judges who would interpret
and not make law, we are at a crossroads involving the future of the
rule of law. For many years we have seen too many courts assume the
role (wrongly in my opinion) of social policy makers, a role that is
supposed to be occupied in our system only by the legislature. One
cannot have a democratic republic, as ours is supposed to be, when
judges rather than legislatures make the law. We are supposed to be
governed according to the principle of popular sovereignty, and when
the judges create and implement policy it is they, rather than the
people, who rule. If our people believe that the judicial branch is
``just another political institution,'' it will be difficult if not
impossible for the people to accept the responsibility to govern
themselves. This is difficult enough as it is, and it is a national
tragedy that most Americans seem so disappointed with American
politics, and that so few involve themselves even in the most basic
political processes, such as voting and service on juries. Anything
that detracts from the rule of law, from the idea that ours is a
government of laws not men, is a great danger to our way of life.
Picking judges on the basis of political ideology, and viewing the
judiciary as just another ``political institution'' is such a great
danger.
Thank you for the opportunity to submit these thoughts.
Response of Cass R. Sunstein to a question submitted by Senator
Sessions
Question. Do you support Michael McConnell's nomination to the
federal bench?
Answer. I enthusiastically support the nomination of Michael
McConnell to the federal bench. He is an extremely able and open-minded
person.
SUBMISSIONS FOR THE RECORD
Statement of the American Center of Law and Justice
This statement was prepare by Jay A. Sekulow, Chief Counsel, James
M. Henderson, Esq., Senior Litigation Counsel, and Colby M. May, Esq.,
Director, Washington D.C. Office of the American Center for Law and
Justice.
Introduction
A recurring and contentious question confronts anyone who considers
the appropriate role of the United States Senate in the process of
selecting officers of the United States, in particular judicial
officers. Existing judicial vacancies and the constitutional
methodology for filling them have come to the political foreground as a
consequence of the recent change in the make-up of the United States
Senate. The importance of the question and its answer have been
highlighted as Senators have raised anew questions,\1\ Washington Post,
May 26, 2001, at A13, about how the Senate will treat nominations by
the President to fill up the judicial vacancies in the federal district
and appellate courts, and in the Supreme Court of the United States.\2\
Legal Times Online, June 7, 2001. While there are, undoubtedly, many
opinions on the question, the appropriate course, we think, is to look
to the Constitution itself for the answer. In this respect we agree
with the view expressed by Justice Scalia, dissenting, in Morrison v.
Olson, 487 U.S. 654, 697 (1988). There, objecting to the rootless and
unfounded approach taken by the Courts majority to answering the
question whether the statute authorizing the appointment of independent
counsels met constitutional requisites, Justice Scalia urged:
---------------------------------------------------------------------------
\1\ For example, the Washington Post carried an Associated Press
report on the impact of the change from Republican to Democrat control
of the Senate that included the following:
Cox becomes the first judicial casualty of the Democratic takeover.
From the point when they learned that they would be in control of the
Senate, Judiciary Democrats warned Bush that they would not let hard-
right conservative nominees through the Senate.
``Judges will have to be moderate,'' said Sen. Charles E. Schumer
(D-N.Y.), who is in line to become chairman of the Judiciary
subcommittee on courts ``Everything will have to be moderate.''
\2\ The shift in the balance of power in the United States Senate
caused by the decision of Senator Jeffords to leave the Republican
Party, change his party affiliation to Independent, and vote with the
Democratic Caucus in the Senate for organizational purposes, guarantees
significant changes in the activities of the Senate Judiciary
Committee, through which all judicial nominees must pass:
A Crucial Shift at the Judiciary Committee by Jonathan Ringel
In what turned out to be his last hearing as chairman of the Senate
Judiciary Committee, Utah Republican Orrin Hatch noted on May 23 that a
Justice Department nominee sitting before him had the glowing
endorsement of Sen. Edward Kennedy. That's high praise, Hatch added,
considering that the Massachusetts Democrat had chaired the panel
himself, ``in the good old days.''
``Soon to return,'' quipped Kennedy. The very next day, Vermont
Sen. James Jeffords' defection from the GOP set a new course for the
committee-and for President George W. Bush's judicial candidates.
``This changes every little thing,'' said Sen. Charles Schumer (D-
N.Y.), a member of the committee and a vocal opponent of many of Bush's
conservative picks. ``In fact, it changes the little things more than
the big things.''
It's the little things that count in the committee, the gateway to
Senate confirmation for judicial and Justice Department nominees.
From ``blue slips'' that can block a nominee from getting a
confirmation vote to the role of the American Bar Association-and from
the membership of the committee itself to the future composition of the
federal district and circuit courts-most everything was promised a new
look after Jeffords' stunning move.
The ad hoc approach to constitutional [decision-making] has
real attraction, even apart from its work-saving potential. It
is guaranteed to produce a result, in every case, that will
make a majority of the Court happy with the law. The law is, by
definition, precisely what the majority thinks, taking all
things into account, it ought to be. I prefer to rely upon the
judgement of the wise men who constructed our system, and of
the people who approved it, and of two centuries of history
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that have shown it to be sound.
Morrison, 487 U.S. at 734. The quest must be to discover the answer
to the question in the text of the Constitution, and where that text is
at all unclear, to discover its meaning in the judgment of the wise men
who constructed our system, and of the people who approved it. . . .''
Together with the related segments of the Federalist Papers, a
proper reading of the Constitution reveals a simple but grand plan for
the selection and placement of officers of the United States. According
to that plan, the President alone is endowed with the power to select
appropriate nominees to the federal judiciary. That sole power of
selecting candidates is clear and to balance against that selection the
power of the Senate to refrain from confirming candidates unworthy of
office by reason of character, incapacity or unfitness is also clear.
Nominations: An Executive Prerogative Serving the Interests in
Efficient and Effective Government
In devising a structure for the government of the Nation, the
Framers of the Constitution vested all executive power of the United
States government in the President. The executive power shall be vested
in a President of the United States of America. U.S. CONST. Art. II,
Sec. 1. The Framers concluded that effective administration of the
federal government not only required placing all executive power in the
President, but also required delegation by the President of duties and
responsibilities to others. For purposes of investing executive
authority to act on behalf of the United States, the Constitution
contemplates two kinds of ``officers of the United States'': principal
officers and inferior officers.
With respect to the former category, the Constitution grants to the
president alone the authority to nominate the principal officers of his
government. Thus, among other constitutional duties attendant to
heading the executive branch the President is charged with selecting
candidates to serve as the principal officers of it, including,
``ambassadors'', ``public ministers and consuls'', ``judges of the
Supreme Court,'' as well as ``all other officers of the United States,
whose appointments are not herein otherwise provided for.'' \3\ U.S.
CONST. Art. 11, Sec. 2. And, as will be shown below, the nomination of
inferior officers belongs to the President unless Congress acts
pursuant to the Constitution to delegate that responsibility elsewhere.
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\3\ An example of an officer for whom the Constitution does
otherwise provide the means of selection is the President of the
Senate. See U.S. Const. Art. 1, Sec. 3. (``The Vice President of the
United States shall be President of the Senate, but shall have no vote,
unless they be equally divided '').
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After debating the possible alternatives to doing so, the Framers
chose as the safest course to place within the sole hands of the
Executive the power to nominate the principal ``officers of the United
States'' and, during recesses of the Senate to fill temporarily such
``vacancies that may happen. . .by granting commissions which shall
expire at the end of their next session.'' Specifically, the Executive
Article of the Constitution provides:
The President. . .shall nominate, and by and with the advice
and consent of the Senate, shall appoint ambassadors, other
public ministers and consuls, judges of the Supreme Court, and
all other officers of the United States, whose appointments are
not herein otherwise provided for, and which shall be
established by law: but the Congress may bylaw vest the
appointment of such inferior officers, as they think proper, in
the President alone, in the courts of law, or in the heads of
departments.
The President shall have power to fill up all vacancies that
may happen during the recess of the Senate, by granting
commissions which shall expire at the end of their next
session.
U.S. Const. Art. 11, Sec. 2.
This passage of the Constitution also indicates the Framers'
intention to impose a two step process in the selection of officers of
the United States: first, nomination; and second, appointment.
Moreover, the Framers chose to repose all responsibility and
prerogative for nomination of principal officers with the President,
but to require that appointment by the President come only with the
approval of the Senate.
Of course, it was possible to devise in the Constitution other
methods for selecting candidates to fill the offices of the United
States. In Federalist Nos. 76 and 77, Aexander Hamilton addressed and
explained the appointing power. In No. 76, Hamilton suggested that
three basic approaches to the selection of candidates could be
considered: ``t ought either to be vested in a single man, or in a
SELECT assembly of a moderate number; or in a single man, with the
concurrence of such an assembly.'' \4\ Antifederalist Nos. 76-77. For
the choice made in the Constitution to share the power of appointment
between the President and the Senate, the Federal Farmer found no sound
reason. ``This mode, for general purposes, is clearly not defensible.''
Id. As Hamilton explained, however, granting the nomination power to a
single man avoided problems presented when the power was shared across
a group consisting of more than one person.
---------------------------------------------------------------------------
\4\ Richard Henry Lee, writing as the Federal Farmer in the
Antifederalist Nos. 76-77, considered that six basic arrangements for
disbursing the appointments power were possible:
In contemplating the necessary officers of the union, there appear
to be six different modes in which, in whole or in part, the
appointments may be made. 1. by the legislature; 2. by the president
and the senate; 3. by the president and an executive council; 4. by the
president alone; 5. by the heads of the departments; 6. by the state
governments.
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First, sharing the power of appointment across a group bogs the
process of filling offices of the United States at the nomination stage
by increasing the number of people eligible to choose candidates. That
approach could amplify certain consequences that could be injurious to
the process. For example, whatever the abuses that one man might
inflict in the process of selecting officers, the real probability is
that such abuses would be amplified, not minimized, by spreading out
onto a larger number of shoulders the burden of selection. Alexander
Hamilton noted, in Federalist No. 76, the President, acting alone,
``will have FEWER personal attachments to gratify, than a body of men
who may each be supposed to have an equal number. . ..'' Consequently,
Hamilton reasoned, ``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.''
Second, placing the power of appointment in an individual insures
that the individual in whom that power resides will be held accountable
for the appropriate exercise of that power. In other words, when the
authority is exercised by a body of men, each may individually hide
behind the collective judgment of the body. But where only one man is
permitted to act in a matter, as is the case in the nomination of
principal officers of the United States, then responsibility for
carrying out that duty irresponsibly cannot be avoided by hiding behind
the collective judgment of some group. As Hamilton put it, ``The sole
and undivided responsibility of one man will naturally beget a livelier
sense of duty and a more exact regard to reputation. He will, on this
account, feel himself under stronger obligations, and more interested
to investigate with care the qualities requisite to the stations to be
filled, and to prefer with impartiality the persons who may have the
fairest pretensions to them.'' The Federalist No. 76.
The decision to vest sole power to nominate ``officers'' with the
Executive was tempered, however, by then subjecting the Executive's
power to appoint those officers to the ``advice and consent of the
Senate.'' As a consequence of this construction, the Framers created a
process for the filling of offices in which the need for consultation
with the Senate was deliberately back-loaded. In this way, Hamilton at
least, thought the Constitution would designedly insure that the
President could place within the administration that he heads, capable,
competent, and honorable men whose capacity to join him in service of
the people of the United States he does not doubts.\5\ History has, as
a general matter, born out Hamilton's judgment with respect to
appointments to fill offices in the Executive branch.\6\ To a much
lesser extent, history has born out that judgment with respect to the
appointment of judicial officers.\7\
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\5\ The Federal Farmer, to the contrary, feared senatorial
participation in appointment. He was concerned: (1) that allowing the
Senate to participate in appointment would take from it its pure and
unbiased judgment regarding the performance of officers brought before
it for judgment; (2) that doing so would make the Senate the real seat
of federal government (``[t]he consequence will be that the senate,
with these efficient means of influence, will not only dictate,
probably, to the president, but manage the house, as the constitution
now stands; and under appearances of a balanced system, in reality
govern alone ''). See The Antifederalist Nos. 76-77. The former fear of
the Federal Farmer, that the judgments of the Senate, which would
otherwise be free from appearance of bias, would now suffer that
appearance, was also considered a weakness in the plan by BRUTUS,
writing in the Antifederalist No. 62, on the organization and powers of
the Senate (``This body will possess a strange mixture of legislative,
executive, and judicial powers, which in my opinion, will in some cases
clash with each other'').
\6\ See Robert C. Byrd, ``Nominations,'' THE SENATE, 1789-1989
(Washington: GPO, 1991), vol. 11, at 41 (noting that, as of date
written, Senate had confirmed ninety seven percent of cabinet
nominees).
\7\ See Robert C. Byrd, ``Nominations,'' THE SENATE, 1789-1989
(Washington: GPO, 1991), vol. 11, at 41 (noting that, as of date
written, Senate had confirmed eighty percent of Supreme Court
nominees).
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WITH THE ``ADVICE AND CONSENT OF THE SENATE'': SENATORIAL PARTICIPATION
IN APPOINTMENTS
While, with respect to the principal officers of the United States,
the President alone nominates, the President shares the appointment
power with the Senate. See U.S. Const. art. II, sec. 2 (``[t]he
President. . .by and with the advice and consent of the Senate, shall
appoint''). The Constitution does not specify, however, the means by
which the Senate shall provide advice and consent, and only hints at
two possible considerations.
First, in the Legislative Article, each House is empowered to make
its own rules for operation: ``Each House may determine the rules of
its proceedings, punish its members for disorderly behavior, and, with
the concurrence of two thirds, expel a member.'' U.S. Const. art. I,
sec. 5. In accord with that constitutional authority, then, the Senate
certainly is authorized to determine its own rules for how to proceed
in considering appointments and in the giving of their advice and
consent.
Second, in the Executive Article of the Constitution, the
appointments clause is paired with the treaty making clause. See U.S.
Const. art. II, sec. 2. Moreover, both the authority to make
appointments and the authority to make treaties are reposed jointly
with the President and the Senate. Compare U.S. Const. art. III, sec.
2, c1.1 (treaty making clause) with U.S. Const. art. 111, sec. 2, c1.2
(appointments clause). Only one point of distinction separates the two
provisions. The treaty making clause requires that two thirds of
Senators present must concur in the making of a treaty, but does not
provide any numerical limitation with respect to the giving of advice
and consent.
Without more, the legislative assumption has been that the Senate
may, in keeping with Article I, section 5, make its own rules governing
the process of providing advise and consent. The Senate has exercised
that constitutional authority to make rules for its proceedings by
authorizing senators to place holds on the consideration of
nominations. The Constitution does not grant to the President the power
or right to direct the Senate to proceed differently than it chooses to
do in advising and consenting with respect to pending nominations.
Setting aside technical considerations about the number of Senators
required to approve an appointment or the manner and timing of the
provision of advice and consent, the most pressing question about the
role of the Senate is the basis for consenting, or declining to
consent, to the appointment of candidates nominated by the President.
On this question, the Constitution is silent. Consequently, we can look
for guidance in the ``the judgment of the wise men who constructed our
system, and of the people who approved it. . ..'' Morrison, 487 U.S. at
734 (Scalia, J., dissenting).
In addition to his arguments in the Federalist Papers, Alexander
Hamilton participated in the ratifying convention for the State of New
York. There, in addressing the nature and construction of the Senate
and its role in the general government he expressed a view that may
inform one who considers this issue. In Hamilton's view, the Senate was
constructed, not as a check against the Executive branch, but as a
check against the State governments. See Elliot, The Debates in the
Several State Conventions on the Adoption of the Federal Constitution,
vol. 2, at 317 (Ayer Co. 1987). Thus, at least to Hamilton, ``advice
and consent'' must have meant more than merely a means of obstructing
the appointment of otherwise eligible persons to office.
In the Federalist No. 76, Hamilton also makes the point that advice
and consent is not a tool for subverting the Executive's sole authority
to nominate:
But might not [the President's] 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, where there were not special and strong reasons for
the refusal.
The Federalist No. 76.
Of course, it is customary, though not constitutionally required,
for the Executive to subject certain nominees for consideration by
individual Senators. So called ``senatorial courtesy'' is a practice
limited to instances in which the territorial jurisdiction of an office
to which an appointment will be made falls within any particular state
of the Union.\8\ In such circumstances, it is expected that the
President will present his proposed nominees to the Senators of the
state affected for their consideration. But expected courtesies, given
or not, would not, in Hamilton's view, justify a vote not to confirm a
nominee where the sole reason for opposition is the hope, hidden or
expressed, that another, favored by the Senator, should have the
office.\9\
---------------------------------------------------------------------------
\8\ See Robert C. Byrd, ``Nominations,'' THE SENATE, 1789-1989
(Washington: GPO, 1991), vol. 11, at 31 et sea.
\9\ At the North Carolina ratifying convention, James Iredell
expressed the view that Senators would risk being ``reprobated'' if
they withheld their consent without just cause:
As to offices, the Senate has no other influence but a restraint on
improper appointments. The President proposes such a man for such an
office. The Senate has to consider upon it. If they think him improper,
the President must nominate another, whose appointment ultimately again
depends upon the Senate. Suppose a man nominated by the President; with
what face would any senator object to him without a good reason? There
must be some decorum in every public body. He would not say, ``I do not
choose this man, because a friend of mine wants the office.'' Were he
to object to the nomination of the President, without assigning any
reason, his conduct would be reprobated, and still might not answer his
purpose. Were an office to be vacant, for which a hundred men on the
continent were equally well qualified, there would be a hundred chances
to one whether his friend would be nominated to it.
Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution, vol. 4, at 134 (Ayer Co. 1987).
Iredell was later appointed as one of the original associate justices
to serve on the Supreme Court by President George Washington. See
http://www.britannica.com/seo/J*/J*ames-iredell.
---------------------------------------------------------------------------
Ultimately, in the Federalist No. 76, Hamilton offers what is the
soundest approach to the exercise of advice and consent. Hamilton
directed himself to the question of requiring the cooperation of the
Senate in the appointment process. In his view, their cooperation was a
salve against poor choices by the Executive:
[T]heir concurrence would have a powerful, though, in general,
a silent operation. 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. In addition to this, it would be an
efficacious source of stability in the administration.
The Federalist No. 76. Thus, we see that for Hamilton at least,
Senate advice and consent consisted of a process by which the natural
tendency of giving the spoils of political victory to the Executive was
ameliorated, and by which considerations of family, friendship,
faction, and popularity could be subjugated by the quest for
excellence. Moreover, in his view, the Senate's participation in the
appointment process would serve to stabilize the administration.\10\
---------------------------------------------------------------------------
\10\
---------------------------------------------------------------------------
The quest for stability in administrations, however, has been the
source of legislative abuse. During Andrew Johnson's administration,
the Congress passed, over Johnson's veto, the Tenure of Office Act.
That Act gave duration in office to persons confirmed by Senate vote,
allowing them to retain their offices until a successor was both
nominated and confirmed. It was Johnson's disregard for that Act that
led to his impeachment and near removal from office. Ultimately,
however, the Supreme Court concluded that the Act was unconstitutional.
See Robert C. Byrd, ``Nominations,'' THE SENATE, 1789-1989 (Washington:
GPO, 1991), vol.11, at 36; see also Myers v. United States, 272 U.S. 52
(1926) (declaring tenure provision unconstitutional).
Conclusion
Both the Executive and the Senate share a common duty to the people
of the United States to place in offices of the United States persons
of trustworthy character, and capable and suited to the performance of
the duties of their office. The selection of suitable candidates for
the principle officers of the United States is the Executive's alone
(tempered by the practice of Senatorial courtesy in cases of such
offices as fall alone within the boundaries of one state). But the
appointment of the candidate to the office is a shared exercise. That
exercise must be suited to the duty owed to the people of the United
States.
To deny the appointments of a President because the candidate is
incompetent to serve is no abuse of the duty of advice and consent. To
the contrary, it is the role of the Senate to prevent considerations of
family, friendship and the like from being the basis upon which such
appointments are made. But to deny the appointments of a President
because the candidate, though fully suited to the tasks of the office,
holds political opinions different from those of the Senate (or of
individual senators) is precisely the abuse that Hamilton suggests the
advice and consent provision was not intended to accommodate.
Statement of Professor Lillian R. BeVier, University of Virginia Law
School
In connection with its hearing on Tuesday, June 26, 2001, entitled
``Should Ideology Matter?'' Judicial Nomination 2001,'' I have been
requested to submit this witness statement to the Senate Judiciary
Subcommittee on Administrative Oversight and the Courts. It is an honor
for me to do so.
I was nominated by President George Bush to the Fourth Circuit
Court of Appeals in October 1991. My nomination lapsed when President
Clinton was elected thirteen months later. Despite the fact that I
received a qualified rating from the ABA, and had the support of both
my home state senators, then-Senator Robb and Senator Warner, the
Judiciary Committee, chaired at that time by Senator Biden, refused to
hold a hearing on my nomination. Not having been informed of the
reasons why the Committee was unwilling even to give me a hearing, I
prefer not to speculate about them. To the extent the reasons for
refusing me a hearing reflected concern with my philosophy of judging,
I would have valued at least a chance to answer their questions in a
public forum and to get my views on record. While in my view it would
have been improper for the Committee to have probed my political
ideology or to have queried me about how I expected to rule on
particular cases, I would have welcomed the opportunity to explain my
judicial philosophy. In the paragraphs that follow I offer at least a
partial explanation.
Questions of judicial philosophy are not first and foremost
questions about the merits of particular constitutional controversies.
They are not primarily questions of what actual limits shall exist on
federal legislative power or of how power between the President and
Congress shall be divided in the federal system or of whether the 14th
Amendment incorporates the provisions of the Bill of Rights into a
``one-size-fits-all'' set of rules for the treatment of accused
criminal defendants or even of whether the Constitution is color blind.
Important as these questions are, questions of judicial philosophy are
even more fundamental, for they raise issues not of what should be
decided but who (i.e., what institution of government) should decide,
what is the source of their power to do so, and by what criteria are
their decisions to be guided and evaluated. At one extreme, shall it be
the Justices of the Supreme Court who decide according to their own--or
some law clerk or law professor's--notions of what is good for the
country? Or , at the other end of the spectrum of views, shall it be
the framers of the Constitution, the text they wrote and the intentions
they embodied therein--with the current Justices acting as their agents
to interpret as faithfully and impersonally as humanly possible the
document the framers wrote?
The arguments that are often put forth in behalf of some form
judicial activism, or nonoriginalism, or a-originalism, are often
intellectually sophisticated, sometimes eloquent, usually nonlegal.
They self-consciously eschew ``formalism,'' and nearly always come
adorned with practically irresistible rhetorical embellishments. They
invoke the Constitution's ``aspiration to social justice, brotherhood,
and human dignity;'' they insist that adhering to the values of 1789
entails ``turning a blind eye to progress'' and that doing so ignores
``the transformative purpose of the text.'' Anyway, they claim, it's
either ``too difficult''--maybe it's impossible--to know what the
framers meant by the words they chose; or it's just too horrible to
contemplate the straight jacket that adhering to the Founders' commands
would impose upon ``our'' ability to accomplish a ``progressive''
political and social agenda. Stripped of their considerable academic
gloss, the arguments of the nonoriginalists tend to boil down to this:
if the Supreme Court is constrained by an obligation of fidelity to the
text of the Framers, then we might not be able to get the results we
want when we want them. We might have to wait, and go through other
channels, to secure the right to abortion, gender equality, the right
to remain silent when questioned by the police (but NOT when you might
be praying in school). And if the nonorginalists' arguments did not--
most of them--appear in law reviews and were not--most of them--made by
law professors, you would hardly have a clue that they were supposed to
be part of a debate about the legal authority of judges to accomplish
those results. You'd think instead that the debate was strictly and
purely a political or policy debate about what the law of today should
be, and that any person in her right mind would agree that once
``we've'' decided what we think the law should be, it follows a
fortiori that judges can reach that result under cover of the
Constitution.
On the other hand, the arguments in behalf of orginalism or
textualism or the structural constitution seldom stray far from the
question of the legal authority of judges. They are utterly preoccupied
with questions of the legitimacy of judicial power. That is why they
begin from an uncompromising premise, and end with an uncompromising
solution. The text of the written Constitution is law, right? Right.
The Constitution is the sole source of the power of judicial review,
right? Right. It confers power upon -and thus legitimates the power
of--the Justices of the Supreme Court to set aside the acts of the
other branches of the federal government and of the States, right?
Right! But, being the sole source of the legitimacy of that power, the
Constitution also specifies the limits of its legitimate exercise,
right? Right! Those who argue in behalf of originalism or textualism or
the structural constitution are not prone to talk about brotherhood,
human dignity, moral evolution, adaptability, flexibility or any other
of those neat progressive things. They tend to talk about LAW, and
about the Courts legal authority to do ANYTHING. And when that's the
framework--when that's the question--originalism, textualism, and the
structural constitution seem axiomatic.
The antagonists in the orginalism/textualism vs. nonoriginalism
debate focus on utterly different issues. Originalists and textualists
talk in terms of uncompromising first principles while nonoriginalists,
unable to accept a regime that places such an obstacle in the way of
judges' ability to achieve the results they desire in particular cases
talk in terms of progress and flexibility and most especially of
outcomes in pending cases and of what they want now.
Originalism and textualism are the legal equivalents of abstinence
from sex by unmarried teens: they are simple, straightforward,
uncompromising solutions that pay heed to a command more permanent than
that of the moment, that require self-restraint, that entail delayed
gratification, but that do not erect permanent roadblocks to the
eventual legitimate satisfaction of desire.
Originalists and textualists tend to ground their arguments
primarily on a foundation of legitimacy. They seem wedded to this
question of principle, and to what the law requires. Even when they
turn to instrumental defenses, they tend to stress originalism and
textualism's legalistic'' virtues--of stability, predictability, and
clarity. I endorse these virtues and think originalism serves them
relatively well. But originalism and textualism possess two other
virtues: the first is inter it . The second is deliberate
impersonality--and hence the universal accessibility--of the decision-
making criteria they supply.
First, integrity. Many proponents of originalism and textualism
notice and bemoan the discrepancy between what the court does--and what
its nonoriginalist cheerleaders urge it to do--and what it says it
does. And the originalists urge upon the court the simple virtue of
candor: as Judge Posner has noted, ``Originalism is the legal
professor's orthodox mode of justification.'' So, originalists and
textualists say, you should align your practice with your preaching.
And to the extent it continues to condone this ``orthodox mode of
justification'' while in fact rejecting its premise, the nonoriginalist
position is irredeemably hypocritical and essentially dishonest.
Nonoriginalists intone along with the rest of us that we are
fortunate indeed to have a government ``of laws and not of men.'' But,
whereas they appreciate that whenever the coercive power of the state
(or of the Supreme Court exercising the power of judicial review) is
brought to bear it must be wearing an apparent cloak of legal
legitimacy, they in fact seem to have but little respect for law, at
least insofar as law might be a constraint on either the Court or on
their own arguments about what the court should, must, may do.
I suggest that the hypocrisy of many of the nonoriginalist
arguments--the deliberate masking of their real agenda, the lack of
condor, the absence of respect or even acknowledgement of law as a
constraint on themselves as well as others--all of these features exert
a corrupting influence on the enterprise--on the very idea--of law
itself. Thus, in my view, an important function of originalism is to
exemplify, enforce, and sustain the rule of law.
A second virtue of originalism and textualism is the impersonality
of their decision-making criteria. In a way, to notice this aspect of
orginalism or textualism is merely to work a variation on the familiar
juxtaposition of the objectively specified, relatively determinate
relatively disinterested nature of originalist or text-bound decision-
making criteria and the often arbitrary, unpredictable, unspecified,
partisan, subjectively chosen criteria that nonoriginalists use. To
speak of the impersonality of originalism's criteria is to invoke all
the virtues of objectivity and by implication to deplore subjective
judging. But it also is to emphasize the particular importance of
impersonality as a characteristic of the criteria that judges use to
decide cases. The outcome of any judicial process is supposed to be a
function of impartial--i.e., unbiased, disinterested--judges deciding
cases based on the evidence submitted in court and the arguments of
counsel. Participation in the process by litigants is rendered
meaningful by the fact that the playing field is supposed to be level:
it is levelled by rules--rules of admissibility, rules of evidence;
rules of decision specified in advance. These rules supposedly
constrain ALL the players, including the judges. But when judges don't
play by these rules--either because they change them in the middle of
the game or because they simply pay them lip service while actually
being guided by their own views of good policy, then the game is
essentially rigged. Advocates whose cases are subjected to this kind of
rigging are in much the same position as voters are when the other side
stuffs the ballot box: they are for all practical purposes
disenfranchised, their opportunity to make their case, to present their
arguments, to persuade the court rendered chimerical by the fact that
the outcome has already been decided, and on the basis of criteria they
neither knew would govern nor could help to shape. What a charade the
judicial process then becomes--how empty its promise of equal justice
under law! You wonder why some of the advocates even bother to show up!
It seems to me to be the essence of unfairness to litigants, who
think they are getting their day in court and that their arguments are
to a purpose, to have their cases decided by judges who in fact are
listening only to their own inner voices, and who view themselves as
being constrained only by their own sense of what's good for the
country. Originalism and textualism are more fair to litigants than
this if only because its decision-making criteria are deliberately
external to the judges who apply them, they are accessible to all, and
they constrain ALL the participants in the game--including, most
especially, the referees.
But when the issue of judicial philosophy is approached in more
pragmatic terms, another reason emerges why courts should respect their
own institutional limitations: the reason is that as social engineers
on a grand scale they are simply incompetent. In other words, when one
considers simply the quality of governance that is likely to emerge,
there is good reason for courts to stay within the institutional
boundaries that the framers established when they separated and divided
power among the three branches. Institutional specialization has
several under appreciated virtues, and asking courts to be the engine
of social change in our complex society makes as much sense as asking
your word processor to cook your dinner for you: it's just not the job
it was designed to do.
This submission is not the right place fully to develop this theme,
but one or two observations may help make the point. Fist, the nature
of and differences between the tasks that the Constitution assigns to
the various branches--making, enforcing, and applying the law--are
notoriously imprecise. Nevertheless, one can infer quite a lot about
the kinds of tasks that the framers meant to assign to the judiciary by
looking at how the judicial process works how do judges get their
information, for example, and how does their agenda get set and who
gets to participate in the process; who are judges accountable to and
what kinds of arguments persuade them. One can get a sense of
comparative institutional advantage with respect to certain kinds of
questions by comparing the judicial with the legislative process along
these dimensions. Very briefly, think for a moment about the
implications of the fact that the judicial process is designed (and
constitutionally limited by virtue of the case or controversy
requirement) to resolve existing disputes between two parties. The
court waits passively for the parties to bring the dispute before it,
and when they do the court constrains their presentations by rules that
limit them to presenting only relevant and probative evidence. The
court decides the outcome based on supposedly preexisting rules as
applied to facts that the parties prove and in response to arguments
that the parties make. Persons who may be very substantially affected
by the outcome but who are not parties to the suit have no claim on the
court's time, and there is certainly no guarantee that the parties
themselves will present the ``whole story'' about the implications of a
court decision one way or another. The court's decisions have
retroactive effect as a matter of course. Because judges in the federal
system have life tenure, they are formally accountable to no
constituency for their mistakes of either law or policy. Their
professional colleagues might criticize them, and lawyers might scream
bloody murder, and the press might go ballistic, and law professors
might have a field day, but no formal mechanism of accountability
exists.
The most obvious difference in the institutional design of the
legislative branch is of course the electoral accountability of
legislators: formally, at least, they rish defeat at the next election
should they make ``mistakes.'' But there are other equally important
differences in institutional design: the legislature is not constrained
in its agenda-setting as courts are-it has almost total discretion to
set its own agenda, from war to welfare reform. The legislature is not
constrained to make decisions based on relevant or probative evidence,
nor must it remain neutral or free from partisan influences. Indeed,
legislative decisions are paradigmatically the outcome of interest
group pressures; log-rolling and interest group bargaining are the
norm. Although legislatures are not constitutionally required to listed
to all affected parties, they generally tend to try to do so (at least
if the parties are well-enough organized to realize that their
interests are likely to be affected by pending legislation). It is in
the self-interest of legislators to obtain as much information about
the likely impacts of what they plan to do before they do it, so that
their chances for reelection are not jeopardized by unexpected fallout
from their legislative product.
The basic point is that one of the chief differences in
institutional design between courts and legislatures has to do with
their access to information about the nature of the problems that come
before them. As compared to legislatures, the information that courts
receive is backward looking, the data base upon which their decisions
rest is extraordinarily limited, and there is no systematic way for
them to acquire knowledge about the likely effects of their decisions.
This fact alone suggests that, the more complex the problem, the more
constrained should be the judicial role in solving it. The reason is
that good decision-making requires more than good intentions. One of
the principal problems that bedevils policymakers today, in fact, is
that good intentions are almost always sabotaged by unintended
unforeseen undesired and wholly unwanted consequences. This is because
policymakers tend to assume that people will comply with their edicts
and they forget to inform themselves about what will happen when people
take quite reasonable and legal steps to avoid compliance.
Well-intentioned decision-makers with laudable goals are not enough
to insure good decision-making. Good decision-making cannot proceed in
the absence of good information, for if you do not know what the facts
are, if you've only been told part of the story, and if you cannot
predict and have no way of calculating the likely effects of your
decisions and the kinds of evasive actions your decisions will induce
in affected parties, you are going to mess up! With complex social
problems, courts-comparatively speaking-don't know enough and can't
possibly find out enough because of the way their information-gathering
processes have been designed. To acknowledge this fact says nothing
about the judiciary's supposed comparative advantage at implementing
values, and precious little about their universally acknowledged
obligation to protect constitutional rights. It says a lot about their
comparative disadvantage at knowing what they are doing and what the
consequences are likely to be. And it suggests a very pragmatic reason
why untethered judicial activism may create problems, and itself
constitutes a powerful argument in behalf of a judicial philosophy of
originalism, textualism and structuralism.
Statement of Detective Patrick Boyle, Philadelphia Police Department
Senators, please allow me to introduce myself, my name is Patrick
Boyle; I am a Detective with the Philadelphia Police Department. I
.have been a member of the Police Department for 35 years. In 1997, I
was invited to give testimony before a Congressional Committee and also
a Senate Committee. The subject at both of those hearings was
``Judicial Activism and Its Impact.''
I was indeed honored to appear before both of those Committees.
Once again, I have been asked to at least submit this written testimony
before another Senate Committee at the request of Senator Jeff
Sessions.
,Some of you may be wondering why a Police Detective would be asked
to give testimony concerning the selection. and appointment of Federal
Judges. Please allow me to explain. A Federal Judge in Philadelphia
imposed a prison cap on the City of Philadelphia in 1987 or 1988. This
action was taken without any court finding; that unconstitutional
conditions or over crowding ever existed. The City of Philadelphia was
convicted, as in the famous Irish ballad ``Joe McDonald'', without
crime ox without trial. The Philadelphia District Attorney was denied
the right to intervene and challenge the lawfulness of this decree.
Mayor Rendell and the Justice Department asked the .federal court to
end the prison cap, as a public safety consideration, but the court
refused to even hear the merits of the motion. As an example of the
effects of this decree, suspects charged with certain offenses were not
incarcerated nor required to post any type of bond to ensure their
appearance at trial. A sampling of the offenses are; car jacking,
stalking, drug dealing, burglary, some robberies, firearms violations,
Terroristic threats, auto theft, drunk driving manslaughter and
vehicular homicide. Any person charged with any of these crimes was
released without posting any bond and given a further court date to
appear. I am sure that no one on this panel would be surprised at the
results--no one came to court. This procedure was repeated over and
over, arrested, bench warrant, arrested, bench warrant. On average 68%
of all defendants failed to appear in court. The number of outstanding
bench warrants rose from 18,000 in 1988 to close to 50,000 in 1994. In
1991, over 8,000 defendants released under the ``prison cap'' were
rearrested. for new charges including 77 murders, 850 burglaries and
over 1,000 robberies.
The year 1991 was the worst year of my life. In June of 1990 I was
extremely proud when my Son, Daniel Boyle followed my footsteps into
the ranks of the Philadelphia Police Department. Danny, after
graduating from the Police Academy began working the streets of our
City. On February 4, 1991 while working the midnight shift, Danny
stopped a stolen vehicle traveling the wrong way on a one-way street.
The operator of this vehicle jumped from the auto and immediately began
firing a 9 mm handgun at my Son. One of the 13 shots struck Danny in
the right temple. Danny died 2 days later on February 6, 1991. Dan
served the City for one year and one day.
Danny's killer was arrested, tried and convicted of .first-degree
murder. At the end of the trial and after the jury imposed the sentence
of death; the presiding Judge informed us in open court that this
murder should never have happened, that Danny should be with us today
but that the killer had been arrested and released time and time again
because of the prison cap. As you can see by the statistics mentioned
above we are not the only victims of this miscarriage of justice, many
others have been affected by this outrage.
This distinguished body now knows why I have been asked to submit
my thoughts on the issue of Judicial Antiviam--I feel cure that no one
condones what occurred to Danny or any of the other victims because of
the prison cap. As you proceed with the hearings on the selection of
Federal appointments to the bench please remember that you, the
Congress of the United States of America, are empowered to enact our
laws, not our Judges. I would be the last person on earth who would be
pleased with any Judge that was so far to the right or to the left that
he or she could infringe on our basic freedoms.
While I am not a lawyer, I do have thirty-five years experience
with the criminal justice system. You are our elected representatives,
each of you have the responsibility to see that your powers of enacting
our laws are not usurped by the appointments (for life) of Judges whose
power seems, at least to me, in some cases unchecked. I fully
understand the Political nature of all that goes on in our Capital but
please remember the ramifications of your decisions will have a lasting
effect on all of the Citizens of this great Country. I would never want
any other parent to suffer the loss our family has had to endure
because of an open door policy in the prison system, enforced by a
Federal judge. Thank you.
Article from Washington Post by Joseph A. Califano, Jr., Friday, August
31, 2001
Yes, Litmus-Test Judges
In considering presidential nominees for district and appellate
judgeships, professional qualification alone should no longer be
considered a ticket to a seat on the bench.
For years partisan gridlock and political pandering for campaign
dollars have led to failures of the Congress and White House, whether
Democratic or Republican, to legislate and execute laws on a variety of
matters of urgent concern to our citizens. As a result, the federal
courts have become increasingly powerful architects of public policy,
and those who seek such power must be judged in the spotlight of that
reality.
Years ago battles of the bench were pretty much limited to the
Supreme Court: FDR's effort to stack the court with New Dealers,
Johnson's attempt to name Abe Fortas chief justice, Nixon's push to
seat Clement Haynsworth and Harrold Carswell, and the in-your-face
street fights over Robert Bork and Clarence Thomas. Senate scrutiny was
painstaking because the nine justices have such a potent voice in
setting national policy.
In those days, when it came to lower-court nominees, senators
deferred to the wishes--and litmus tests--of their colleagues from the
nominee's state and the president. Until Lyndon Johnson moved into the
Oval Office, southern senators such as Mississippi's John Eastland,
then Judiciary Committee chairman, insisted that presidents (including
John F. Kennedy) nominate segregationist federal judges in their
states. LBJ believed Kennedy had made a mistake in bowing to these
senators. If there was to be a litmus test, it would be his.
As a result, in selecting judicial nominees, those of us who helped
check them out and interviewed them nailed down their views on civil
rights, desegregation and racial justice. LBJ's insistence on this cost
him the friendship of his mentor, Georgia senator Richard Russell, over
a federal appellate court seat.
The litmus test of recent years has focused on the pro-life or pro-
choice views of nominees. It is as inconceivable that Ronald Reagan
would have sent the Senate a decidedly pro-choice nominee as it was
that Bill Clinton would have named a pro-life one.
Litmus tests are nothing new. What's new is the growing role of
federal courts in crafting national policies once considered the
exclusive preserve of the legislature and executive. As gridlock and
big money have stymied the House and Senate and shaped the way laws are
executed, concerned citizens have gone to court with petitions they
once would have taken to legislators and executive appointees. As the
federal courts have moved to fill the public policy vacuum,
conservatives, liberals and a host of special interests have developed
a sharp eye for those nominated to sit on the bench. So should the
Senate.
The failure of Congress to enact sensible public health policies
regarding tobacco to protect our children from nicotine pushers sent
anti-smoking advocates to federal court to draft a settlement agreement
with provisions that read like sections of a federal statute. While
Republican and Democratic administrations and Congresses have been
fiddling over a patients' bill of rights, patients have gone to federal
court for relief likely to have at least as much impact on health
maintenance organizations as anything the politicians at both ends of
Pennsylvania Avenue can cobble together.
Despairing of more effective legislative or executive action, many
cities are asking federal district judges for damages and court orders
to restrict the way manufacturers sell handguns and other firearms.
Federal District Judge Colleen Kollar-Kotelly's final orders to remedy
Microsoft's monopolization may have more to say about the development
of the Internet economy that any president, House speaker or Senate
majority leader.
When the executive does act, say on cigarette marketing or
environmental protection, adversely affected businesses rush to court
to overturn its actions and regulations. The big bankrollers of drug
legalization like George Soros know the difference between a federal
judge who can find a way to uphold state medical marijuana laws and one
who will find that federal statutes preempt them.
Environmentalists, prison reformers and consumer advocates have
learned that what can't be won in the legislature or executive may be
achievable in a federal district court where a sympathetic judge sits.
Federal district judges are the lords of their realms, and unless
they open the gates, it can be impossible for the litigating parties to
get out once they enter the courtroom kingdom. These judges can hold
cases for years, tying up businesses and regulating prisons, cities and
schools with detailed court orders.
The battle over who fills the record number of judicial vacancies
has taken on an importance unimaginable just a generation ago. Who sits
in federal district and appellate courts is more important than the
struggle over the budget, the level of defense spending, second-
guessing the tax bill and whose fingers are poised to dip into the
Social Security and Medicare cookie jars.
President Bush and Republican Sen. Orrin Hatch understand this as
surely as Democratic Senate Judiciary Chairman Patrick Leahy and
subcommittee Chairman Charles Schumer do. Both sides know that many of
the individuals who fill these seats will have more power over tobacco
policy, prison reform, control of HMOs, the death penalty, abortion,
environmental issues, the constitutionality of redistricting for House
elections, gun control and the rights of women and minorities than the
president or congressional leaders, and for a longer period of time.
That's why professional qualifications should be only the threshold
step in the climb of judicial nominees to Senate confirmation. There is
not sufficient time to examine each lower federal court nominee with
the penetrating policy MRI reserved for Supreme Court justices. But the
Senate must take enough time to give these men and women the kind of
searching review their sweeping power to make national policies
deserves.
The writer is president of the National Center on Addiction and
Substance Abuse at Columbia University. He was Lyndon Johnson's special
assistant for domestic affairs and secretary of health, education and
welfare from 1977 to 1979.
Statement of Ronald A. Cass, Dean, Boston University School of Law
Thank you, Mr. Chairman and Committee members for giving me the
opportunity to submit testimony on this important issue. Let me begin
by emphasizing that this testimony reflects only my own, personal view
s, not those of Boston University or any other entity.
Personal Qualifications.
Before turning to the matter at hand, I will describe my
background. I am presently the Dean of Boston University School of Law
and the Melville Madison Bigelow Professor of Law at Boston University.
I have been a lawyer for more than twenty-five years. I have practiced
law and have served in government as an attorney and as a presidential
appointee, gaining first-hand experience in one version of the Senate
confirmation process. I also have taught and written about
constitutional law, administrative law, the judicial process, and the
performance and selection of judges. My most recent book, The Rule of
Law in America (Johns Hopkins University Press, 2001), deals at some
length with the manner in which judicial decisions are made. I am a
past President of the American Law Deans Association, past Chair of the
Section of Administrative Law and Regulatory Practice of the American
Bar Association, a current member of the ABA's House of Delegates, and
a member of the American Law Institute. These comments draw on my
experiences in these different capacities but reflect only my own
judgments. They have not been screened by and are not endorsed by any
organization with which I am associated.
Antecedent Issue: What Judges Do
The question before this Subcommittee plainly is not freestanding.
The initial question respecting the confirmation of judges is not the
assignment of burdens but description of the job that you are
considering providing advice on and consent to--what, in other words,
is it that federal judges do? There is a great deal of mythology on
this matter. When that is put aside, the task of the Senate in the
confirmation process becomes much easier to see.
Despite the public attention focused on a small number of
controversial decisions, the job of a federal judge almost entirely
consists of the resolution of well-defined conflicts over the meaning
of reasonably determinate legal authorities. Federal judges are not
given a wide-ranging mandate to announce rules of their own choosing.
They are instructed to decide which of two (or several) possible
interpretations of law--of statutory directives, of constitutional
provisions, or of prior judicial decisions--fits better with the
governing legal authorities. And that, in fact, is what they do.
Evaluation of the work of federal judges strongly suggests that they
primarily (without exaggeration one might say almost exclusively) are
engaged in the application of sound technical legal skills--the skills
of reading, parsing, and interpreting legal authorities--to a shifting
set of controversies.
This is not necessarily a simple task. It can, in fact, be quite
difficult. That is why you want judges with demonstrated competence at
the skills that are needed for legal interpretation. That is why we
care whether judges have been successful as scholars and lawyers in
showing the ability to perform the interpretive task at the heart of
the judicial enterprise. But there is incredibly widespread accord
among judges that this is indeed what judges do.
Because the judge's job is principally an exercise in the
application of skills generally described as ``legal reasoning,''
little of what judges do is controversial so long as judges have the
competence to perform their interpretive tasks. Most legal actions--
about 1.2 million in federal courts each year--are settled by the
parties without a judge's decision. The cases that federal judges
decide are less apt to be controversial because of different views of
the law than because parties disagree with findings of fact. Because of
that--and because appellate courts defer to lower court findings of
fact--relatively few cases disposed of at the district court level are
appealed. The lack of controversy over the typical federal court
decision can be seen from statistics. Consider, for example, that
almost 80 percent of the cases decided by the U.S. Court of Appeals
(the level just below the Supreme Court) are disposed of without
published opinion, indicating agreement that these are fairly simple
decisions. For the remaining fifth of appellate cases that generate
published opinions, the vast majority are unanimous decisions. Even
where judges think an issue is important and not settled, they tend to
agree on the correct outcome.
Ideology versus Interpretation
There are, of course, commentators who argue that judges use
ideology to decide important matters. That argument is a hardy
perennial, and scholars have been attempting to understand judges'
actions through the lens of ideology for many years. It is a remarkably
unhelpful lens for all but the rarest judges or the rarest cases.
Doubtless, there are some judges who use ideology as an element in
their decisionmaking, and there are some decisions that are affected by
judges' views on matters that cannot be described as technical,
interpretive issues. But these are not the ordinary occurrence. They
are unusual, and we should not design our procedures with respect to
the selection and confirmation of judges as if this aberration were the
norm.
The evidence supporting the ideology argument is remarkably weak.
If the argument is understood as a general statement that ideology
provides a dominant explanation for judicial decisions, there is almost
no credible evidence to support it. How would it explain, for instance,
the incredibly high level of agreement among U.S. Court of Appeals
judges from different backgrounds, different political affiliations,
and different asserted ideologies? It is most often used in argument
over the Supreme Court of the United States. That court culls its
caseload of 70-100 cases a year (a mere eight one-thousandth of one
percent of the total number of legal actions each year in the US) from
thousands of petitions to select the most important and legally
indeterminate cases. If any set of cases in any court in the nation is
to provide evidence to support the ideological dominance claim, this
should be it. Yet, even here the explanation falters. If ideology
dominates other decisional factors, why is the Supreme Court unanimous
in more than 40 percent of its cases for a typical term?
There is a less aggressive argument for the role of ideology which
is more plausible, but it still does not provide a good basis for
abandoning the general understanding of what courts do. This less
aggressive argument is that judges principally decide cases on the
basis of technical considerations respecting legal authorities. They
endeavor to make sense of the language used in statutes, constitutional
provisions, and judicial precedents, using rules of construction that
are relatively free of ideological freight. But, the argument goes,
inevitably in some instances this approach has leeway for different
outcomes there is space left among the legal authorities for different
conclusions about the exact shape of the rule that governs a particular
conflict. When that happens, judges must attempt to divine what is most
reasonable, what best harmonizes the different strands of authority.
That task ineluctably leads to consideration of policy issues, of
values to be placed on different results, of weights to be given to
competing interests. In that setting, even judges attempting earnestly
to give a reasoned interpretation to legal texts will be influenced--
perhaps subtly, perhaps not--by their ideology.
Of course, this version of the ideology argument is, on one level,
correct. The less certain the outcome of a legal dispute governed by
ordinary interpretive techniques that command widespread adherence, the
more likely it is that other factors will come into play. The more the
issue at hand requires consideration of factors that will receive
different evaluations--factors that cannot be subjected readily to
objective tests--the more likely it is that the judge's own subjective
evaluation will be described as influenced by ideology.
That, however, does not get the ideology proponents where they need
to go. The explanation seems plausible in large part because it
recognizes what should be evident to all observers of judicial
decisionmaking: that the dominant influences on judicial decisions are
the quality of the legal authorities and the competence of the
decision-maker, not the decision-maker's political or other
inclinations. The explanation, in other words, gains force largely
because it adopts the position opposed to ideological dominance as its
base. Moreover, the argument that is left now from the proposition that
ideology governs judicial decisions is the tautological observation
that when the usually dominant technical considerations don't give a
clear answer, the answer will not rest purely on technical
considerations. That is so, but so what? Almost any life experience of
a decision-maker may exercise some influence over decisions that in
some respect are ``up for grabs,'' but unless there is a clear and
direct connection between some specific, discernable influence and a
significant set of outcomes, there is little to be gained by pursuing
the various possibilities. Any inquiry in this vein is apt to be more
theatrics than analysis.
Perhaps most critical to the flaw in the ideology argument is this:
efforts to make judicial decisions seem the product of ideology must
provide oversimplified definitions of ideology if they are to work. The
effort is to tie judges to a political party or a specific perspective
that can be defined in linear fashion--this judge has Republican or
Democratic leanings, that judge is liberal or conservative, and so on.
These characterizations may work tolerably well over a set of issues,
but only as rough proxies for a more complicated set of views that do
not graph cleanly in a linear mode. Consider, for example, Supreme
Court Justice Antonin Scalia, frequently caricatured as the epitome of
the ideological, conservative jurist, voting this past term that the
Fourth Amendment to the Constitution prohibits police from conducting
warrantless, thermalimage searches of homes. Or consider Justice David
Souter, often described by conservative commentators as reflexively
liberal, voting this past term to allow police to arrest and jail a
woman whose children, in violation of the law, were not wearing
seatbelts in their car. Neither of those votes fits the simple liberal-
conservative stereotype because the stereotype does not really explain
the considerations that inform the justices' decisions. And it surely
does not explain the considerations that typically inform other judges'
decisions, even in difficult matters not covered by well-defined legal
precepts.
Once you abandon the fiction that the linear description actually
tells you what is going on, however, the already weak argument for
ideology's influence becomes much weaker. The more complicated set of
views that may affect the judges' decisions will not look so much like
ideology because it is complex. The complexity means that judges do not
simply act on the basis of beliefs that fit readily with the sort of
politically charged description of views that usually gets referred to
as ideology--not even as a prompt for decision-making in difficult
cases with open-textured legal authorities. They evaluate the pros and
cons of arguments according to an enormously rich set of understandings
of facts and values that cannot easily be conflated to an ideological
bias. Even where judges must bring something to bear other than mere
technical legal skills to generate a decision, ideology will be a poor
explanation of their decision processes.
So, why then, is the ideology argument--the assertion of ideology's
prominent role in judicial decision-making--pressed by some very smart
and thoughtful people? The fact that this argument has force among a
certain group of commentators must be understood in light of the
commentators' perspective. This is an argument that appeals to those,
such as law professors, who professionally focus on the least
predictable cases. Law professors spend most of our time on cases that
are interesting to us for the same reason that ornithologists are
intrigued by sighting the least common birds. There is little for
professional critics to say about the application of well-established
bodies of law to a reasonably ordinary set of facts. Unpredictable
cases--ones in which either the law is much less well-specified than
the norm or something has gone off the normal course in court--are the
only cases we are apt to spend time and energy discussing.
Yet it is a mistake to try to understand the legal system based on
these cases as if they were the normal judicial fare. These cases are
to the general population of legal cases as the rarest cancer cases are
to matters of general public health. They are what matters to us, what
interests us--and we come naturally to exaggerate their frequency and
their importance, just as oncologists tend to see the world as if it
were basically a cancer ward. For all of our fascination with cancer,
it is dwarfed as a cause of death in the world by dysentery, diahhrea,
malnutrition, and malaria. In the United States, it pales in comparison
to heart disease. And survival to a much older age is more normal than
early death from any of these causes. Cancer is a much more difficult
disease to understand than dysentery and the like, which is why we
worry about it and why doctors are interested in it. But we should not
exaggerate its impact by mistaking it for the ordinary, expected state
of the world. The same is true for legal matters where it looks like
ideological considerations may play a role. The fact that such matters
exist should not be taken as evidence that this is a common phenomenon
or a significant problem.
Confirmation: What Should Senators Do?
If judges generally base their decisions on sincere efforts to
interpret governing legal authorities but at times cannot perform that
task without importing other factual and normative assumptions, what
should the Senate do in assessing judicial nominees? The first and most
obvious lesson is that senators should pay careful attention to the
technical legal qualifications of nominees. You should assure
yourselves that judicial nominees have the skills they will be called
upon to exercise on the bench and that there is a likelihood they will
use these skills to perform the necessary interpretive tasks. Nominees
who have had lackluster careers, who have not demonstrated a facility
for legal analysis, or who have personal characteristics that will
impede such analysis should be turned down. So, for example, in
addition to assessing competence, senators might inquire whether
nominees are unwilling to listen to others, for example, or have
demonstrated biases that make it unlikely that some individuals will
get a fair hearing.
Surely, however, the President who nominates judges will care about
their views and will endeavor to select judges whose views are
sympathetic in some respect. Shouldn't the Senate seek the same
assurances? Even if judges' decisions are not primarily--even if they
are not significantly--the products of ideology, shouldn't senators
have the right to ``level the playing field'' by keeping presidential
prerogatives within bounds?
First, one predicate for the questions presented above is
undoubtedly correct: even if everything argued above about the
extremely limited role of ideology in judicial decision-making is true,
the presidential nomination process will be tilted toward people who
generally share the President's outlook and inclinations. Those are the
people who will always be most congenial to a President and who will
have the greatest likelihood of sharing connections to people whose
judgment the President trusts. Further, a President may care
particularly about a set of views and endeavor to select nominees who
share those views. A President who believes, for example, that the
death penalty is a strong deterrent to the most abhorrent crimes well
might endeavor not to appoint judges who are vehemently opposed to the
death penalty. There is nothing untoward about this aspect of
presidential selection of nominees. It is understood as part of what we
get when we elect a President. Fear that a President may have views and
associations too far from the comfort level of most Americans is
frequently used as an argument against a particular candidate. Election
certifies that the fear is not so widespread as to be a serious
problem.
The fact that the President's selections will have been screened in
some respect for their views does not mean that the Senate must play
the role of counterweight. To start, it is wrong to believe that the
Senate gives the President a free hand in selecting nominees who will
advance his interests if it forswears inquiry into such matters.
Serious tests for competence and temperament rule out those nominees
most likely to depart from straightforward application of governing
law. Indeed, serious tests for competence and temperament are most
likely to assure all parties that the judges who are confirmed, however
they have come to be selected, will serve public interests over the
long term, interests that are defined by our governing legal
authorities.
Note, too, that even if the President wants to select judges whose
views are compatible with his on some margin, it is very difficult to
do that in a way that will predictably affect judicial decisions. It is
difficult because, as explained above, things other than a judge's
personal views dominate judicial decision-making. It is difficult
because it is not a simple matter to project current views to future
decisions (witness the selections of Chief Justice Earl Warren and
Associate Justice William Brennan by President Eisenhower). It is
easier to screen out people with well-established views contrary to the
President on some matter than to ``screen in'' people with compatible
views. Even that limited screening, however, is not easy. Presidential
viewpoint screening also is difficult because the more the selection
process focuses on personal views, the more it creates disincentives
for prospective nominees to be fully candid--disincentives that operate
throughout the appointments process. Presidents with well-known
perspectives on particular issues will induce more potential nominees
to profess accord with those interests. The standard check on the bona
fides of such statements is whether associates of the President who
know the candidate will vouch for him. While standard, this is both a
very poor check on the candidate's views and very largely redundant of
the process that would be used in all events.
Senatorial efforts to screen nominees' views are not likely to be
very effective. The same problems that affect presidentialscreening
affect senatorial screening. And the President, as the first-mover in
this game, can continue to eliminate nominees who are thought most
likely to disagree with the President on important matters.
Second, and more important, the effort to check a candidate's views
is fraught with peril. Most obviously, it leads almost inevitably to a
more strategic and more hostile set of interactions between President
and Senate. Although proponents of such screening commonly assert that
it need not be so, those proponents--whether Republicans opposing a
Democratic President or Democrats opposing a Republican President--
seldom have standing as voices of moderation. It is typically those who
are most committed to opposition who suggest this tack while
maintaining that it can be done in a collegial manner. The now long-
running argument about who first de-railed a nomination of a well-
qualified candidate and who did it to how many more or less is evidence
of this problem.
Further, the effort to check nominees' views compromises the
Senate's ability to check nominees' legal competence and temperament.
Not only will the effort to check views take time and energy away from
other screening; it also will color other screening efforts. Once
ideology becomes the focus, any discussion will be seen through that
lens. Objections to competence will be less likely to be credited as
sincere. And that will further undermine the Senate's ability to focus
clearly and cogently on that issue.
Perhaps most problematic, the process of publicly focusing on
personal views will have adverse consequences for the legal system. It
will convey to the public the false impression that ideology dominates
judicial decision-making, which over time will undermine confidence in
and respect for our legal system. That is not to anyone's advantage.
Worse yet, the process also will induce judicial nominees to follow one
of two routes, neither of which is attractive. One possible response is
to duck--to avoid really saying anything about any issue. That almost
surely will be seen as dissembling. The alternative is to try and have
developed positions on the most important issues that might come before
the nominee when on the bench. Of course, the nominee would then be
making public statements about views on exactly the range of cases that
are most politically sensitive--and that we most want judges to think
hard about in the context of particular cases and arguments. We will be
setting judges up either to make pronouncements they do not later
follow or to make decisions in the wrong way about the issues we
traditionally have entrusted to a case-by-case decision process that
has served us well. These are bad alternatives. And they are the most
likely alternatives. Grilling prospective judges about their views may
look good at the time, but it has terrible effects on our legal system.
Conclusion
The Senate's advise-and-consent role with respect to federal judges
is a weighty one. It should focus on assuring that our judges have the
legal skills and the temperament necessary to the tasks of legal
interpretation that we have entrusted to our judiciary. The Senate
should not attempt to divine a nominee's personal views, positions on
legal issues, or ideology. That is not likely to be a useful role for
the Senate and is very apt to have untoward consequences for our
judicial system.
I appreciate the opportunity to submit these remarks and would be
happy to expand on any issue that interests the Committee.
Statement of Elena Ruth Sassower, Coordinator, Center for Judicial
Accountability, Inc.
Dear Chairman Schumer:
As you know, the Center for Judicial Accountability, Inc. (CJA) is
a national, non-partisan, non-profit citizens' organization, based in
New York. Our purpose is to safeguard the public interest in meaningful
and effective processes of judicial selection and discipline. On the
federal level, as likewise on state and local levels, these essential
processes take place almost exclusively behind closed-doors. For your
convenience, a copy of CJA's informational brochure is enclosed--
similar to one I gave you, in hand, on March 20, 1998, when you were
seeking election as a Senator from New York.
In the twelve years since our founding in 1989, CJA has had
substantial first-had experience with the Senate Judiciary Committee
under both Democratic and Republican chairmen. Reflecting this is the
enclosed copy of CJA's May 27, 1996 letter to then Judiciary Committee
Chairman Orrin Hatch, as printed in the record of the Committee's May
21, 1996 hearing on ``The Role of the American Bar Association in the
Judicial Selection Process'' (Exhibit ``A-1''). The subject of that
hearing was whether the ABA should continue to occupy a privileged,
semi-official role. This, because the ratings of the ABA's Standing
Committee on Federal Judiciary were allegedly tainted by ideological
considerations and by ABA ``liberal'' policy positions.
Inasmuch as CJA received no notice from the Senate Judiciary
Committee of the June 26, 2001 hearing, ``Should Ideology Matter?:
Judicial Nominations 2001'', held by the Subcommittee on Administrative
Oversight and the Courts, which you now chair, I draw your attention to
the final paragraph of CJA's May 27, 1996 letter to Chairman Hatch ``A-
I'', p. 127):
``Finally, we ask that this letter serve as CJA's standing to
be placed on a `notifications' list so that, in the future, we
are immediately contacted when matters bearing specifically on
judicial selection, discipline, and judicial performance are
being considered by the Senate Judiciary Committee or any of
its subcommittees.'' \1\
---------------------------------------------------------------------------
\1\ This identical request was made in a May 22, 1996 letter to
Kolan Davis, then Chief Counsel to the Subcommittee on Administrative
Oversight and the Courts--with copies sent to Winston Lett, the
Subcommittee's then minority counsel, and John Yoo, then General
Counsel to the full Committee and his then minority counterpart,
Demetra Lambros (Exhibit ``A-2''). Indeed, CJA's May 22, 1996 letter is
largely identical to CJA's May 27, 1996 letter to Chairman Hatch,
except that it does not particularize ``CJA's more recent contacts with
the ABA's Standing Committee on Federal Judiciary, this year and last.
. . .''
We did not learn of your June 26, 2001 Subcommittee hearing until
June 25, 2001--and this, from a front-page item in the New York Law
Journal, identifying it as ``a hearing to debate the criteria senators
should use when voting on President Bush's judicial nominees''. I
immediately called your office. After verifying that the hearing was
focused on ideology, rather than more broadly on ``criteria''--as to
which CJA would have requested to testify--I advised that CJA would be
submitting a statement for the record of the Subcommittee's hearing.
Please consider this letter, including the annexed substantiating
exhibits, as CJA's statement for inclusion in the printed record of the
June 26th hearing.
In your Op-Ed article in the June 26th The New York
Times, ``Judging By Ideology''--as likewise in your prefatory statement
at the June 26th hearing--you confess that Senators
privately consider a nominee's ideology, but that because of the taboo
surrounding its consideration, they conceal their ideological
objections to nominees by finding ``nonideological factors, like small
financial improprieties from long ago''. You state, `got-cha' politics
has warped the confirmation process and harmed the Senate's
reputation.''
While CJA agrees with this assessment and applauds, as long
overdue, you readiness to explore the ideological views of judicial
nominees--many of whom were, and are presumably chosen by Presidents
precisely for their ideological views--we must point out that there is
a more fundamental reason why the confirmation process is ``warped''.
It it ``warped'' because--except when the Senate Judiciary Committee is
searching for some non-ideological ``hook'' on which to hang an
ideologically-objectionable nominee--the Committee cares little, if at
all, about scrutinizing the qualifications of the judicial nominees it
is confirming. Indeed, the Committee willfully disregards
incontrovertible proof of a nominee's unfitness, as likewise, of the
gross deficiencies of the pre-nomination federal judicial screening
process that produced him.
The Senate Judiciary Committee's failure to discharge its duty to
investigate the qualifications of judicial nominees--notwithstanding
its self-promoting pretense to the contrary--has been chronicled in the
1986 Common Cause study, Assembly-Line Approval--which made a list of
salutary recommendations, most of which appear to be unimplemented
today. Other studies, also with unimplemented salutary recommendations,
have included the 1988 Report of the Twentieth Century Task Force on
Judicial Selection, entitled Judicial Roulette, with a chapter entitled
``Senate confirmation: a Rubber Stamp?'', as well as the 1975 book by
Ralph Nader's Congress Project, The Judiciary Committees, with a
chapter entitled ``Judicial Nominations: Whither `Advice and
Consent'?''. These are important resources for the further hearings
that your prefatory statement announced would be ``examin[ing] in
detail several other important issues related to the judicial
nominating process''.\2\
---------------------------------------------------------------------------
\2\ In particular, your upcoming, as yet unscheduled, two hearings
on: ``(1) The proper role of the Senate in the judicial process. What
does the Constitution mean by `advise and consent' and historically how
assertive has the Senate's role been? '', and ``(2) What affirmative
burdens should nominees bear in the confirmation process to qualify
themselves for life-time judicial appointments? The Senate process is
criticized for being a search for disqualifications. We should examine
whether the burden should be shifted to the nominees to explain their
qualifications and views to justify why they would be valuable
additions to the bench.''
---------------------------------------------------------------------------
CJA's own direct, first-hand experience with the Senate Judiciary
committee provides additional--and more recent--evidence of the
Committee's outright contempt for its ``advise and consent''
constitutional responsibilities and for the public welfare. CJA's
experience with the Committee is also unique in that it involves more
than opposition to specific nominees. It involves meticulously-
documented evidentiary presentations establishing critical deficiencies
in the pre-nomination screening process, particularly relating to the
American Bar Association. Specifically, CJA demonstrated, as to one
federal District Court nominee, Westchester County Executive Andrew
O'Rourke, appointed in 1991 by President George Bush, the gross
inadequacy of the ABA's Standing Committee on Federal Judiciary's
supposedly ``thorough'' investigation of his qualifications. As to
another federal District Court nominee, New York State Supreme Court
Lawrence Kahn, appointed in 1996 by President Bill Clinton, CJA showed
that the ABA Standing Committee on Federal Judiciary had actually
``screened out'' information adverse to his fitness. In other words,
CJA's contacts with the Senate Judiciary Committee have concerned not
just judicial nominees, but a more transcending dimension of the
adequacy and integrity of the judicial screening process, with
particular focus on the ABA.
CJA regards it as a positive step that President George W. Bush has
removed a wholly unworthy ABA from its preeminent, semi-official pre-
nomination role in rating judicial candidates. Indeed, by letter to the
President, dated March 21, 2001 (Exhibit ``A-3''), CJA expressed
support for such prospective decision, enclosing for his review a copy
of our May 27, 1996 letter to Chairman Hatch (Exhibit ``A-1'') to
illustrate the ``good and sufficient reason'' for removing the ABA from
the pre-nomination screening process. Needless to say, inasmuch as the
Senate Judiciary Committee--or at least the Democratic Senators--are
now going to be utilizing the ABA to fulfill a post-nomination
screening function, the readily verifiable evidence of the inadequacy
and dishonesty of ABA investigations of judicial candidates--and of its
dishonest refusal to in any way confront that evidence--are thresholds
issues for the Committee in assessing whether, and under what
circumstances, it can rely on ABA ratings.
We do not know the state of the Senate Judiciary Committee's
record-keeping. However, we respectfully suggest that you make it a
priority to find out what has become of the voluminous correspondence
and documentary materials that the Committee received from CJA. Most
voluminous is CJA's 50-page investigative Critique on the
qualifications and judicial screening of Andrew O'Rourke, substantiated
by a Compendium of over 60 documentary exhibits, which we initially
presented to the Senate Judiciary Committee as our ``Law Day'' public
service contribution in May 1992. As reflected by CJA's May 27, 1996
letter to Chairman Hatch (Exhibit ``A-1''), we transmitted a duplicate
copy of the Critique and Compendium to him under that letter, along
with three Compendia of Correspondence relating thereto. The most
voluminous of these, Compendium I, collected CJA's correspondence with
the Senate Judiciary Committee and Senate leadership following
presentment of CJA's Critique. Compendium II collected CJA's
correspondence with the American Bar Association about the Critique--
copies of which had been previously provided to the Senate Judiciary
Committee.
CJA's May 27, 1996 letter (Exhibit ``A-1'', p. 125) highlights the
evidentiary significance of the Critique in establishing
``not the publicly-perceived partisan issue of whether the
ratings of the ABA's Standing Committee on Federal Judiciary
are contaminated by a `liberal' agenda. Rather, . . . the issue
that must concern all Americans: the gross deficiency of the
ABA's judicial screening in failing to make proper threshold
determinations of `competence', `integrity' and
`temperament'.'' (emphasis in the original)
Further described by our May 27, 1996 letter (Exhibit ``A-1'') is
that, based on our Critique, CJA had called for a Senate moratorium on
the confirmations of all judicial nominations pending official
investigation of the deficiencies of the federal judicial screening
process. Copies of our May 18, 1992 letter-request for the moratorium,
addressed to the Senate Majority Leader George Mitchell (Exhibit ``B-
1''). Such letter-request, which we had sent to every member of the
Senate Judiciary Committee, stated:
``To the extent that the Senate Judiciary Committee relies on
the accuracy and thoroughness of screening by the ABA and the
Justice Department to report nominations out of Committee--with
the Senate thereafter functioning as a `rubber stamp' by
confirming judicial nominees without Senate debate--a real and
present danger to the public currently exists.
It is not the philosophical or political views of the judicial
nominees which are here at issue. Rather, the issue concerns
whether present screening is making appropriate threshold
determinations of fundamental judicial qualifications--i.e.
competence, integrity, and temperament. Our critique of Andrew
O'Rourke's nomination leaves no doubt that it is no.''
(emphases in the original)
Thereafter, on July 17, 1992, The New York Times, published our
Letter to the Editor, which it entitled ``Untrustworthy Ratings? '',
about our Critique's findings--and about our request for a moratorium
``[b]ecause of the danger of Senate confirmation of unfit nominees to
lifetime Federal judgeships (Exhibit ``B-2'').
The Senate Judiciary Committee's response to CJA's fact-specific,
documented Critique was to refuse to discuss with us any aspect of our
evidentiary findings--and to call police officers to have me arrested
\3\ when, after months of Committee inaction and foot dragging,
ignoring my many attempts to arrange an appointment with counsel, I
traveled down to Washington in September 1992 to discuss the serious
issues presented by the Critique and by the ABA's refusal to take
corrective steps--while, meantime, the Senate was proceeding with
confirmations of federal judicial nominees.
---------------------------------------------------------------------------
\3\ See CJA's October 13, 1992 letter to then Senate Judiciary
Committee Chairman Joseph Biden, annexed as Exhibit ``Z'' to CJA's
Correspondence Compendium I.
---------------------------------------------------------------------------
Likewise, the Senate Judiciary Committee's response to CJA's May
27, 1996 letter (Exhibit ``A-1'')--copies of which CJA also sent to
every member of the Committee--was to refuse to discuss the serious
issues it presented with substantiating proof, to wit, ``that the
problem with the ABA goes beyond incompetent screening. The problem is
that the ABA is knowingly and deliberately screening out information
adverse to the judicial candidate whose qualifications it purports to
review.'' Summarized by the May 27, 1996 letter (Exhibit ``A-1'', p.
126) were facts showing that the Second Circuit representative of the
ABA's Standing Committee on Federal Judiciary had willfully failed to
investigate case file evidence, transmitted by an October 31, 1995
letter (Exhibit ``C''), of the on-the-bench misconduct of New York
Supreme Court Justice Kahn,\4\ then seeking appointment to the U.S.
District Court for the Northern District of New York, that the
Chairwoman of the ABA's Standing Committee on Federal Judiciary was
arrogantly disinterested in this willful failure to investigate--and
that President Clinton subsequently appointed Justice Kahn to the U.S.
District Court, presumably based on an ABA rating that Justice Kahn was
``qualified''.
---------------------------------------------------------------------------
*ERR14*\4\ That Second Circuit representative to the ABA Standing
Committee on Federal Judiciary, Patricia M. Hynes, has since become--
and currently is--the Committee's Chairwoman. This because ABA
``leadership;; has refused to address the evidence of Ms. Hynes
misconduct in connection with her ``investigation of Justice Kahn's
qualifications.
---------------------------------------------------------------------------
CJA's May 27, 1996 letter expressly stated:
``Based upon what is herein set forth, we expect you will want
to afford us an opportunity to personally present the within
documentary proof--which we would have presented at the [May
21, 1996] hearing on ``The Role of the American Bar Association
in the Judicial Selection Process''--as to how the ABA fails
the public, which is utterly disserved and endangered by its
behind-closed-doors role in the judicial screening process.''
(Exhibit ``A-1'', p. 127)
I daresay most people reading the May 27, 1996 letter would have
had a similar expectation--and especially, if they had before them the
substantiating documentary proof it transmitted. Conspicuously, the
``Editor's Note'', added to the end of the letter, as printed in the
record of the Committee's May 21, 1996 hearing on the ABA's role,
states: ``Above mentioned materials were not available at press time.''
(Exhibit ``A-1'', p. 127). This is most strange as all those materials
were express mailed to the Committee together with the ``hard copy'' of
the letter.
The only response we received to our May 27, 1996 letter (Exhibit
``A-1'') was a June 13, 1996 acknowledgement from Senator Strom
Thurmond (Exhibit ``D-1''), whose form-letter text repeated, verbatim,
the Senator's statement at the May 21, including that Congress has
``adequate resources to properly investigate the background of
individuals nominated to the federal judiciary'' and that the Senate
``carefully review[s]'' these nominees, giving ``due consideration to
the ABA's Standing Committee on Federal Judiciary, prior to a vote on
confirmation''
The only other response CJA received--a June 12, 1996 letter
(Exhibit ``F'')--was, ostensibly, to CJA's April 26, 1996 letter to the
Committee (Exhibit ``E''), requesting to testify in opposition to
Justice Kahn's confirmation, as well as answers to various procedural
questions. One of these procedural questions, as highlighted in CJA's
May 27, 1966 letter (Exhibit ``A-1'', pp. 126-7), concerned the change
in Committee policy to preserve the confidentiality of ABA ratings of
judicial nominees until the confirmation hearing.
By this June 12, 1996 letter, (Exhibit ``F'') Chairman Hatch
denied, without explanation, CJA's written request to testify in
opposition to Justice Kahn's Confirmation. Although confirming the
Committee's ``practice'' of not publicly releasing the ABA ratings in
advance of the confirmation hearing, Chairman Hatch did not identify
how long such ``practice'' had been in effect and the reason therefor,
which is what CJA expressly requested to know. He did however, admit,
in response to another question in CJA's April 26, 1996 letter (Exhibit
``E''), that ``[T]he Judiciary Committee has no written guidelines in
evaluating judicial nominees. Each candidate is reviewed on an
individual basis by each Senator.''
CJA responded with a June 18, 1996 letter (Exhibit ``G-1''),
requesting that Chairman Hatch explain his peremptory and precipitous
denial of our request to testify and that he reconsider his denial
based on facts therein set forth. We pointed out that he had not
provided us with information as to ``what the criterion is for
presenting testimony at judicial confirmation hearings''. Additionally,
we pointed out that no one from the Committee had ever contacted us as
to the basis of our opposition to Justice Kahn, which had not been
identified by our April 26, 1996 letter (Exhibit ``E''), and that
although such identification did appear in CJA's May 27, 1996 letter
(Exhibit ``A-1'', p. 126), to wit, that Justice Kahn as a New York
Supreme Court Justice had
``used his judicial office to advance himself politically.
Specifically,. . .[he] had perverted elementary legal standards
and falsified the factual record to `dump' a public interest
Election Law case which challenged the manipulation of judicial
nominations in New York State by the two major political
parties'' (emphases in the original),
no one had ever requested that we furnish the Committee with a copy
of the substantiating case file for review.
Chairman Hatch never responded to this June 18, 1996 letter
(Exhibit ``G-1''). Rather, on June 25, 1996 at 9:45 a.m., a Committee
staffer telephoned us to advise that the Committee's confirmation
hearing on Justice Kahn's nomination--whose date we had repeatedly
sought to obtain from the Committee, without success--would take place
at 2:00 p.m. that afternoon.
Such last-minute notice gave us just over four hours to get from
Westchester, New York to Washington, D.C.--a logistical impossibility
by surface transportation. Throwing expense to the winds, we arranged
with a car service to speed me to the airport for a noon flight. At the
same time, we sought to clarify from the Committee whether, in making
this expensive trip down to Washington, I would be permitted to
testify. No clarification was forthcoming (Exhibit ``G-2'').
The June 25, 1996 Committee ``hearing'' on Justice Kahn's
confirmation--which was held simultaneously with the ``hearing'' for
four other District Court nominees, and immediately following the
confirmation ``hearing'' for a nominee to the Circuit Court of
Appeals--fits the description of the Committee staffer quoted in the
1986 Common Cause study, ``Assembly Line Approval'', who termed
confirmation ``hearings'' ``as pro forma as pro forma can be. Apart
from Senator Jon Kyl, who was chairing the ``hearing'' in Chairman
Hatch's absence, Only one other Committee member, Senator Paul Simon,
was present for the boiler-plate questioning of the five District Court
nominees, who were called up en masse to respond, seriatim, in
``assembly-line'' fashion, once the questioning of the nominee for the
circuit Court of Appeals had been completed. Chairman Kyl then
commended all the nominees as ``exceptionally well qualified'' and
prepared to conclude the ``hearing''. This, without inquiring whether
anyone in the audience had come to testify \5\ and without identifying
whether the Committee had received opposition to any of the nominees
and its disposition thereof.
---------------------------------------------------------------------------
\5\ By contrast, page 234 of the Judiciary Committees describes the
Committee's April 21, 1971 hearing to confirm seven judicial nominees.
Senator Roman Hruska was presiding. ``Hruska asked if anyone in the
room wished to speak on behalf of or against the nominee. The
subcommittee the moved on to the next nominee.'' (emphasis added).
---------------------------------------------------------------------------
It was then that I rose from my seat. The transcript of the June
25, 1996 Senate Judiciary Committee ``hearing'' reflects the following
colloquy between me and Chairman Kyl (Exhibit ``H'', pp. 790-791):
Sassower: ``Senator, there is citizen opposition to Judge
Kahn's nomination''
Sen. Kyle: ``Let me just conclude the hearing, if we could.''
Sassower: ``We request the opportunity to testify.''
Sen. Kyle: ``The committee will be in order.''
Sassower: ``We requested the opportunity 3 months ago, over 3
months ago \6\--''
---------------------------------------------------------------------------
\6\ Out of nervousness, I erred. April 19, 1996--the date I had
contacted the Committee regarding CJA's request to testify in
opposition--was not more than three months earlier. It was more than
two months earlier.
---------------------------------------------------------------------------
Sen. Kyle: ``The committee will stand in recess until the
police can restore order.''
[Recess]
Sen. Kyle: ``As the chair was announcing, we will keep the
record open for 3 days for anyone who wishes to submit
testimony, and that includes anyone in the audience, or
questions from the members of the committee to the panel.
Should you have any additional questions, of course you are
welcome to discuss with staff any other questions you have
concerning the procedure.
The full committee will take up the full slate of nominations
both for the circuit court and for the district court at the
earliest opportunity. I cannot tell you exactly when, but I
will certainly recommend that it be done at the earliest
opportunity and I do not see any reason for delay.
Senator Simon, do you have anything else that you wish to
add?''
Sen. Simon: ``No. I think we have excellent nominees before us
and I hope we can move expeditiously.'' \7\
---------------------------------------------------------------------------
\7\ This statement by Senator Simon should be viewed not only in
the context of the opposition to Justice Kahn and request to testify,
which I articulated in his presence only moments earlier, but in the
context of his counsel's representation to CJA in a October 8, 1992
letter, returning the copy of the Critique we had hand delivered to his
Senate office. ``While the [ABA] rating does carry weight, I can assure
you that information provided by individuals who know the nominee, who
have practiced before him or her, or otherwise have and interest and
contact us is given every consideration.'' (emphases added) See
Exhibits ``U'' and ``Y'' to CJA's Correspondence Compendium I.
---------------------------------------------------------------------------
Sen. Kyle: ``I certainly reflect that same point of view. Thank
you again for being here. We thank everyone in the audience,
and I again would say there are 3 days for anyone in the
audience to submit and additional statements if you have them.
Thank you. The committee stands adjourned.''
It must be noted that in the ``recess'' noted by the transcript
(Exhibit ``H'', p. 791), which was truly momentary, at least one police
officer rushed to me and threatened that I would be removed if I said
another word. This officer was one of about five other police officers
who were waiting at the side of the room, summoned, I believe, by the
Committee's Documents Clerk for the purpose of intimidating me. This,
because I had refused to be intimidated by the Clerk's inexplicable
surveillance of me, which included his shadowing me about the Senate
Judiciary Committee's hearing room, from the time I walked in bullying
me and gratuitously warning he was going to have me removed.
As the audience dispersed and Chairman Kyl approached the judicial
nominees to congratulate them, I tried to speak with him about the
serious nature of CJA's opposition to Justice Kahn. Chairman Kyl just
waved me off: By then, the Committee's Documents Clerk was again at my
side, threatening to have me removed for harassing the Committee. I
told him then--as I had previously--that I had no desire to harass
anyone, but simply wished to discuss CJA's opposition with the
appropriate individuals. Indeed, I searched in vain for Committee
counsel to speak with about CJA's opposition and request to testify.
This included approaching the fifteen or so persons who had sat in the
chairs behind those reserved for the Senators at the dais. None would
identify themselves as counsel or staff with whom I could speak. Nor
could I find any counsel with whom I could speak in the Committee's
adjoining office. Meantime, the Committee's Document Clerk, with three
police officers in tow, was again trailing and bullying me.
In the end, I obtained from the Documents Clerk the until-then-
withheld ABA's rating for Justice Kahn, showing that, of all the
judicial nominees up for confirmation, Justice Kahn had received the
lowest ABA rating: a mixed rating with a majority voting him
``qualified'' and a minority voting him ``not qualified''. However, no
sooner did I leave the Committee's office, indeed, in the corridor
directly outside the Committee's door, I was arrested by Capitol Hill
police on a completely trumped up charge of ``disorderly conduct''--and
hauled off to jail.
The shocking particulars of the orchestrated intimidation and abuse
to which I was subjected at the Senate Judiciary Committee's June 25,
1996 ``hearing'' on Justice Kahn's confirmation are chronicled in CJA's
June 28, 1996 letter to Chairman Hatch (Exhibit ``I-1''), which was
submitted for ``the record''.\8\ This letter, additionally, recites the
no less shocking fact that on June 27, 1996, the Committee, without
waiting the announced three days for ``the record'' to be closed and
written submissions received, voted to approve Justice Kahn's
Confirmation.\9\ Thus, CJA's June 28, 1998 letter begins:
---------------------------------------------------------------------------
\8\ CJA's June 28, 1996 letter is printed in the record of the
Committee's June 25, 1996 ``hearing'' on Justice Kahn's confirmation
(at pp. 1063-1074), but nit with its annexed exhibits. According to the
``Editor's note'' appearing at the end of the letter, ``Exhibits A
through I are retained in the Committee files'' at p.1074).
\9\ See Exhibit ``J-7'', p. containing a summary of the minutes of
the Committee's June 27, 1996 meeting pertaining to the judicial
nominees.
``This letter is submitted to vehemently protest the fraudulent
manner in which the Senate Judiciary Committee confirms
presidential appointments on the federal bench and its abusive
treatment of civic-minded representatives of the public who,
without benefit of public funding give their services freely so
as to assist the Committee in performing its duty to protect
the public from unfit judicial nominees.
This letter is further submitted in support of [CJA's] request
for immediate reconsideration and reversal of the Committee's
illegal vote yesterday, approving confirmation of Justice
Lawrence Kahn's nomination as a district court judge for the
Northern District of New York. . .such Committee vote was taken
prior to the expiration of the announced deadline for closure
of the record and without any investigation by the Senate
Judiciary Committee into available documentary evidence of
Justice Kahn's politically-motivated, on-the-bench misconduct
as a New York state court judge, for which he has been rewarded
by his political patrons with a nomination for a federal
judgeship.
Because this Committee has deliberately refused to undertake
essential post-nomination investigation, even where the evidence before
it shows that appropriate pre-nomination investigation was not
conducted, this letter is also submitted in support of [CJA's] request
for an official inquiry by an independent commission to determine
whether, when it comes to judicial confirmations, the Senate Judiciary
Committee is anything more than a facade for behind-the-scenes
political deal-making. In the interim, [CJA] reiterates its request for
a moratorium on all Senate confirmation of judicial nominations. Such
moratorium was first requested more than four years ago by letter dated
May 18, 1992 to former Majority Leader George Mitchell []. Copies of
that letter were sent to every member of the Senate Judiciary
Committee--including yourself.'' (emphases in the original)
Once again, as with CJA's May 18, 1992 moratorium -request (Exhibit
``B-1'') and CJA's May 27, 1996 letter to Chairman Hatch (Exhibit ``A-
1''), CJA sent copies of the June 28, 1996 letter (Exhibit ``I-1'') to
every member of the Senate Judiciary Committee. Additionally, copies
were sent, both my mail and fax,\10\ to then Senate Majority Leader
Trent Lott and then Senate Minority Leader Thomas Daschle (Exhibit ``I-
2'').\11\
---------------------------------------------------------------------------
\10\ The July 1, 1996 fax cover sheets to CJA's June 28, 1996
letter read ``Formal Request for Senate moratorium on all judicial
confirmations and, in particular, opposition to confirmation of
Lawrence Kahn (for N. District--NY).''
\11\ Although CJA never got around to sending a copy of the June
28, 1996 letter to its first indicated recipient, President Bill
Clinton (Exhibit ``I-1'', p. 12), we would certainly be pleased if
Senator Hillary Clinton, and indicated recipient of this letter, shared
it with the former President.
---------------------------------------------------------------------------
Within the next days, CJA unexpectedly received information further
underscoring the Committee's profound dysfunction and bad-faith. This
information was from two New York citizens active in the fight for good
government and constitutional reform, Bill Van Allen and Faye Rabenda.
They advised me that on June 7, 1996--which was just five days before
Chairman Hatch's June 12, 1996 letter denying CJA's request to testify
(Exhibit ``F'')--they had made a trip to Washington to apprise the
Committee of their strong opposition to Justice Kahn's confirmation.
This, based on his politically-motivated decision-making in a public
interest case involving local corruption in Duchess County. Although
such opposition, coming from individuals who were separate and
unrelated to CJA, should have had the effect of reinforcing CJA's
opposition, likewise based on Justice Kahn's politically-motivated
decision-making in a public interest case, also involving corruption,
the Committee did not react accordingly. Instead, just as the counsel
for the Committee had never interviewed CJA and requested from us the
substantiating case file evidence, so likewise, they had not
interviewed these individual citizens and requested their
substantiating case file evidence. Indeed, the Committee did not even
notify Mr. Van Allen and Ms. Rabenda of the June 25, 1996 ``hearing''
on Justice Kahn's confirmation or invite them to submit written
opposition.
As a result of this unexpected information, which I learned of on
or about Friday, July 12th, I telephoned the Senate
leadership on Monday morning July 15th. It was then that I
learned from the office of then Senate Majority Leader Lott that an
``agreement had been reached'' between Republicans and Democrats for
Senate confirmation the next day of judicial nominees--Justice Kahn,
among them. This is reflected by fax CJA's July 15, 1996 memo to
counsel to the Senate Judiciary Committee (Exhibit ``J-1''), faxed to
the Committee's office and the offices of the Senate Majority and
Minority Leaders (Exhibits ``J-2'', ``J-3''), as well as by CJA's July
15, 1996 letter to Senator Herbert Kohl, a Committee member, (Exhibit
``J-4'')--copies of which were faxed to the Senate Judiciary Committee
and Senate Majority and Minority Leaders. Evident from CJA's July 15,
1996 letter to Senator Kohl is that no counsel at the Senate Judiciary
Committee had seen fit to speak with me--and that I could not even
obtain confirmation that, as requested by our memo-fax to counsel
(Exhibit ``J-1''), the evidentiary materials we had transmitted under
our May 27, 1996 letter (Exhibit ``A-1'') would be immediately
transmitted to the Majority Leader's office:
``We do not know the status of our transmittal inasmuch as the
Senate Judiciary Committee receptionists have refused to even
verify that our fax has been given to its counsel--whose
identity I was told is `confidential'-- and have refused to
confirm that the materials will, as requested, be transmitted
[to the Majority Leader's Office. . .''
CJA also phoned Mr. Van Allen and Ms. Rabenda, who then contacted
the Committee, by phone and in writing (Exhibit ``K''), requesting that
it provide the Senate Majority Leader with any ``documentation created
by the Senate Judiciary Committee staff relating to [their] strong
opposition'' to Justice Kahn's confirmation, including relating to
their June 7th visit to the Committee when they ``spoke for
approximately 5-10 minutes with a ``staff member''.
The upshot of CJA's vigorous efforts to prevent the Senate rubber-
stamp confirmation of Justice Kahn's nomination, including a great many
long distance phone calls, only partially reflected by the annexed
phone bill (Exhibit ``J-6''),\12\ was that, upon information and
belief, that nomination, as well as the others, were approved by the
usual undebated vote on July 16, 1996 in Executive Session (Exhibit
``L'').
---------------------------------------------------------------------------
\12\ I made contemporaneous notes of some of my July 15-16, 1996
phone conversations. These are retyped and annexed as Exhibit ``J-7''.
---------------------------------------------------------------------------
The flagrant misfeasance of the Senate Judiciary Committee and
Senate leadership, chronicled by the annexed exhibits and further
established by the voluminous correspondence and other materials that
should be stored somewhere in the Senate Judiciary Committee, serves no
purpose but to enable Senators to continue to ``wheel and deal''
judicial nominations, cavalierly using them for patronage or for
trading with their congressional colleagues and the President for other
valuable consideration or promises thereof.
Obviously, a Senate Judiciary Committee which so shamelessly spurns
the evidence-based presentations of a non-partisan, non-profit
citizens' organization, whose advocacy meets the highest standards of
professionalism, is not treating with greater respect and decency the
average citizen who comes forward to oppose confirmation of individual
judicial nominees. This certainly is reflected in the way the Committee
treated good government activists Bill Van Allen and Faye Rabenda
(Exhibit ``K''), whose opposition to Justice Kahn should have been
viewed as reinforcing CJA's own.
Hopefully, with your chairmanship of the Subcommittee on
Administrative Oversight and the Courts--and your vision of this and
the upcoming three hearings ``at least'' as an ``important dialogue''
on the Senate's role in judicial nominations--essential reforms will be
made in how the Senate Judiciary Committee--and the Senate--discharges
its ``advise and consent'' function. Certainly, the absolute necessity
that the Committee and Senate scrutinize the competence, integrity, and
temperament of judicial nominees is reinforced by the fact that the
mechanisms for disciplining and removing incompetent, dishonest, and
abusive federal judges from the bench are verifiably sham and
dysfunctional.
On this vital subject, I would note that when I handed you a copy
of CJA's informational brochure on March 20, 1998--following your
lecture at Ansche Chesed Synagogue on New York's Upper West Side--I
also gave you a copy of CJA's published article, ``Without Merit: The
Empty Promise of Judicial Discipline'' (The Long Term View,
Massachusetts School of Law, Vol. 4, No. 1 (Summer 1997)). It exposes
the facade that passes for the federal judicial complaint mechanism
under 28 U.S.C. Sec. 372(c) and the House Judiciary Committee's non-
existent capacity and willingness to investigate judicial impeachment
complaints (Exhibit ``M-1''). A copy of this important article had been
sent to the House Judiciary Committee--of which you were a member--
under a March 10, 1998 memorandum addressed to the House Judiciary
Committee's Chairman and members, a copy of which I also handed you
(Exhibit ``M-2'').
In the event you harbor the unwarranted belief that the House
Judiciary Committee is any different from the Senate Judiciary
Committee in its flagrant disrespect for fully-documented
presentations, enclosed is CJA's statement for the record of the House
Judiciary Committee's June 11, 1998 ``Oversight Hearing of the
Administration and Operation of the Federal Judiciary'', held by the
Courts Subcommittee (Exhibit ``N-1''). Its opening sentence expressly
identifies that it is presented
``so that members of Congress and the interested public are not
otherwise misled into believing that the House Judiciary
Committee or its Subcommittee is meaningfully discharging its
duty to oversee the federal judiciary. It is not.''
Described therein is the refusal of the House Judiciary Committee
to respond to CJA's March 10, 1998 memorandum (Exhibit ``M-2/M-1''), as
well as CJA's March 23, 1998 memorandum, which transmitted to the House
Judiciary Committee readily-verifiable proof that the mechanisms for
ensuring the impartiality of federal judges and, where necessary, for
disciplining and removing, them have been reduced to ``empty shells''.
This, in addition to describing the refusal of the Courts Subcommittee
to permit CJA to testify at its June 11, 1998 ``oversight hearing''--
where the only witnesses allowed to testify were representatives of the
judiciary. The House Judiciary Committee's response to this written
statement was to exclude it from the printed record of its June 11,
1998 ``oversight hearing''--which it did wholly without notice to CJA
(Exhibit ``N-2'').
Since your Subcommittee on Administrative Oversight and the Courts,
assumedly, has concurrent jurisdiction with the House Courts
Subcommittee, CJA respectfully requests that while you are clarifying
with the Senate Judiciary Committee as to the whereabouts of CJA's 1992
Critique and voluminous correspondence, you also clarify with the
Courts Subcommittee of the House Judiciary Committee as to the
whereabouts of CJA's voluminous document-supported correspondence,
establishing that the federal judiciary has gutted the federal statutes
relating to judicial discipline and refusal, and that the House
Judiciary Committee has abandoned its oversight over federal judicial
discipline, including its impeachment responsibilities. Needless to
say, if these Committees are unable to locate this important
documentation, CJA will furnish you with duplicate copies.
We look forward to testifying at upcoming hearings of your
Subcommittee--which should be on issues of both federal judicial
selection and federal judicial discipline. As the situation currently
exists, with the Senate Judiciary Committee willfully disregarding its
duties to scrutinize qualifications of judicial nominees and the House
Judiciary Committee willfully disregarding evidence of serious judicial
misconduct, the lives and liberties of this nation's citizens are at
the mercy of judges who should not be on the bench in the first place
and who grossly abuse their judicial powers without the slightest fear
of discipline, let alone removal.
We welcome your able leadership. Ensuring that the public is
protected by properly functioning processes of federal judicial
selection and discipline should be a top priority.
Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of
Iowa
Today, the Subcommittee will hear witnesses discuss whether
ideology matters in the judicial selection process. Let me briefly
state some of my thoughts on this issue.
Our Constitution gives the President the sole power to nominate
judges. But the Constitution provides the United States Senate with the
role of ``advise and consent.'' And whether a nominee comes from a
Democratic or Republican President, I've consistently applied the same
criteria in my determination to vote against or to confirm a nominee:
does that individual have the requisite intellect, knowledge,
integrity, judicial temperament, and philosophy to serve on the federal
bench?
These individuals need to have demonstrated that they will follow
the law--that is, the text and intent of the Constitution and the
statutes ratified and enacted by the people. They need to have a
healthy respect for case precedent. And above all, they need to clearly
understand their role in the third branch of government: interpreting
the law, rather than creating the law.
In addition to being faithful to the Constitution, judicial
nominees must be impartial and appear impartial. Judges must
impartially decide the cases that come before them. I've asked this
question before: if a nominee tells Congress how he or she will decide
particular cases, how can litigants who appear before the nominee as a
judge be confident that the judge will be impartial?
I believe that Senators can ask certain general questions to
prospective nominees: how they generally approach constitutional
adjudication and statutory construction, the role of case precedent,
and other similar issues. But using a political ideology litmus test is
mentally at odds with the Senate's role in the confirmation process and
certainly it violates the fundamental idea of separation of powers.
Such a test will lead to a politicizing of the independent judiciary.
Rather, the Framers envisioned Senate confirmation as a tool for
weighing the qualifications--not the ideology--of a candidate.
I also want to note that as the Chairman of the Administrative
Oversight and the Courts Subcommittee in this last Congress, I examined
the appropriate allocation of judgeships and the prospect of growth in
the federal judiciary. I've come to the conclusion that Congress should
expend funds to fill an existing vacancy or to create a new judgeship
only after a comprehensive determination has been made that such
actions are absolutely essential for the court to properly administer
justice.
I look forward to the witnesses' testimony.
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Statement of Thomas L. Jipping, M.A., J.D., Director, Judicial
Selection Monitoring Project, Free Congress Research & Education
Foundation
Mr. Chairman and members of the subcommittee, my name is Thomas L.
Dipping and for nearly 12 years I have directed the judicial selection
project at the Free Congress Research & Education Foundation. Since
1996, nearly 800 grassroots organizations have signed a statement of
basic principles about the judiciary's proper role. I have submitted
the letter, which Senators have received periodically, for the record
with the cumulative list of signatories.
Since the late 1980s, the judicial selection debate has become more
confused, with new terms added and familiar terms acquiring new
meaning. Whether ideology matters in judicial selection, then, requires
defining ``ideology.'' Those who would answer in the affirmative mean
political ideology, or the ultimate results of judicial decisions. This
hearing, then, is really asking whether federal judges should be
selected based on how they will rule on particular issues in cases that
come before them.
The answer is no. Judges should be chosen on the basis of judicial
philosophy, the way they reach results, not on the basis of political
ideology, what those results are likely to be. Law is different than
politics. The people have the power to make law, judges do not.
Government acting without lawful authority is, by definition,
acting without the ``consent of the governed'' which the Declaration of
Independence identifies as the source of its ``just powers.'' The
Constitution's separation of powers, established by America's founders
``to ensure protection of `our fundamental liberties','' \1\ gives law-
making power to the legislature and judicial power to the judiciary.
These are not the same thing. Alexander Hamilton warned that ``'there
is no liberty if the power of judging be not separated from the
legislative and executive powers.\2\
---------------------------------------------------------------------------
\1\ Gregory v. Ashcroft, 501 U.S. 452,458 (1991), quoting
Atascadero State Hospital v. Scanlon, 473 U.S. 234,242 (1985).
\2\ A. Hamilton, The Federalist No.78 (C. Rossiter ed., 1961), at
466, quoting Montesquieu, The Spirit of Laws (1758) (T. Nugent trans.,
Rothman 1991), at 152.
---------------------------------------------------------------------------
The terms ``restraint'' and ``activism'' denote judicial
philosophy. Judicial restraint observes that separation of powers,
judicial activism does not. A judge restrained by law that is made by
the people takes that law as it is and applies it faithfully to reach
whatever results that application produces. An activist judge takes the
opposite approach, changing the law as necessary to achieve preferred
results. For the restrained judge, the proper means legitimates the
result; for the activist judge, the preferred end justifies the means.
The terms ``conservative,'' ``liberal,'' or ``moderate,'' in
contrast, describe political ideology and denote results rather than
the process of reaching results. Judges can reach conservative or
liberal results by either a restrained or activist process. The
political ideology ends, however, do not justify the judicial
philosophy means. No matter how pleasant or favorable the result, it is
illegitimate if reached through improper activist means. Similarly, no
matter how unpleasant or unfavorable the result, it is legitimate if
reached through proper restrained means.
For example, the Supreme Court was correct in Now v. Scheidler,\3\
unanimously concluding that the Racketeer Influenced and Corrupt
Organization (RICO) Act can apply to social protesters. The statute
simply did not contain any exemption and the Court lacked authority to
create one. only Congress can change the law in this regard. This
``liberal'' result was the product of judicial restraint.
---------------------------------------------------------------------------
\3\ 510 U.S. 249 (1994).
---------------------------------------------------------------------------
Similarly, the Supreme Court was wrong in Troxel v. Granville,\4\
concluding that a state statute providing broad opportunities for child
visitation violated a constitutional right of parents to direct the
upbringing of their children. No such substantive, enforceable right
exists in the U.S. Constitution. The Court created it in the 1920s. As
Justice Antonin Scalia put it in dissent, ``[i]f we embrace this
unenumerated right, I think it obvious. . .that we will be ushering in
a new regime of judicially prescribed, and federally prescribed, family
law.'' \5\ No matter how attractive this might appear, courts--as
opposed to legislatures--have no power to do it.
---------------------------------------------------------------------------
\4\ 530 U.S. 57 (2000).
\5\ 530 U.S. 57, 93 (2000) (Scalia, J. dissenting).
---------------------------------------------------------------------------
As political or social conservative, I must admit that a liberal
result achieved by judicial restraint is legitimate and a conservative
result achieved by judicial activism is not.
Conditioning judicial appointments on expected results requires
determining what to expect. The process of demanding and extracting
commitments or promises from judicial nominees about the decisions they
would render as judges creates a myriad of problems that undermine
``our fundamental liberties.''
First, it requires judges to violate their judicial oath before
they take it. That oath requires them to ``administer justice without
respect to persons'' and to impartially discharge'' their judicial
duties. Public positions on issues that will arise in future cases make
these goals impossible.
Second, it directly threatens judicial independence, ``the most
essential characteristic of a free society.'' \6\ The American Bar
Association's Commission on Separation of Powers and Judicial
Independence identified as a threat to judicial independence that ``the
Senate may seek. . .assurances from nominees, as a prerequisite to
confirmation.'' \7\ Indeed, conditioning confirmation on promises or
commitments of future decisions--that is, on ideology--is perhaps the
single greatest threat to so-called ``decisional independence.''
---------------------------------------------------------------------------
\6\ Ervin, ``Separation of Powers: Judicial Independence,'' 35 Law
& Contemporary Problems 108,121 (1970).
\7\ American Bar Association, An Independent Judiciary (1997), at
24.
---------------------------------------------------------------------------
To conclude, judicial philosophy matters because the way judges
achieve results, conservative or liberal, matters. If ideology matters
in choosing judges, freedom no longer matters for anyone.
Statement of Hon. Edward M. Kennedy, a U.S. Senator from the State of
Massachusetts
Mr. Chairman, thank you for holding this important hearing on the
confirmation process. The advice and consent role of the Senate in the
appointment of justices and judges is one of our important
responsibilities, and it serves the nation well.
In fact, the judicial confirmation process was debated heatedly by
the Framers of the Constitution. Some even suggested that the Senate
should have sole responsibility for the appointment of judges. The
division of responsibility that we have today was a key part of the
``checks and balances'' compromise that shapes many aspects of our
democracy.
Over the years, there have been many major debates over judicial
nominees, especially to the Supreme Court. During the first 100 years
after ratification of the Constitution, 21 of 81 Supreme Court
nominations--one out of four--were rejected, withdrawn, or not acted
on. Since 1968, one-third of all nominees to the Supreme Court have
failed. During these confirmation debates, ideology mattered. John
Rutledge, nominated by President George Washington, failed to win
confirmation as Chief Justice in 1795 when Alexander Hamilton and other
Federalists opposed him because of his position on the Jay Treaty. A
nominee of President James Polk was rejected because of his anti-
immigration positions. A nominee of President Hoover was not confirmed
because of his anti-labor views. The Senate failed to elevate Justice
Abe Fortas to Chief Justice in 1968 when Senate Republicans
filibustered President Johnson's nomination because of his decisions on
defendants' rights and free speech.
Ideology is no less important when the Senate considers nominations
to other federal courts. Intelligence, integrity, and temperament are
important issues, but the Senate also has a responsibility to determine
whether the nominee is committed to values at the core of the
Constitution.
Senate confirmation hearings are not rubber stamps. It isn't enough
for a nominee to tell us that Brown v. Board of Education was correctly
decided. We must know if a nominee has a commitment to progress in the
area of civil rights and other rights cherished by millions of
Americans. The burden is on the nominee and any doubts must be resolved
in favor of the Constitution. These are lifetime appointments, and the
Senate has few responsibilities that are more important for the nation
than assuming the high quality of federal justice.
Thank you Mr. Chairman, and I look forward to the testimony of
today's witnesses.
Statement of Robert S. Litt, former Deputy Assistant Attorney General,
Criminal Division and Principal Associate Deputy Attorney General, U.S.
Department of Justice
Mr. Chairman, members of the Subcommittee:
Thank you for this opportunity to provide my views on the need for
a moratorium in federal executions. A moratorium is essential to ensure
both that the death penalty is carried out in a fair and non-
discriminatory manner, and that the public is confident that it is.
Let me begin with my views on the death penalty generally. Were I a
member of Congress, I would not vote for the establishment of the death
penalty. I have been both a prosecutor and a defense lawyer. Our
criminal justice system contains numerous safeguards to protect the
rights of a defendant and to ensure that justice is done, but it still
depends ultimately on the actions and judgments of humans. None of us
is infallible; our justice system is therefore not infallible. We
confront its fallibility almost daily, with the overturning of
convictions of defendants--including defendants who have spent years on
death row. Just last week, in fact, a Florida man was released after
serving 22 years in jail for murders he did not commit.
We therefore can never be certain that every person sentenced to
death is guilty of the crime with which he or she is charged. Mistakes
have happened in the past; they will happen in the future. I am
sufficiently troubled by the likelihood that the government would take
the life of an innocent person that I would not vote for a death
penalty statute.
However, the Congress has established a federal death penalty,
which the courts have upheld. I joined the Department of Justice aware
of the federal death penalty statutes and committed to my
responsibility to enforce the laws that Congress enacted. Indeed, while
I was at the Department, I was involved in several matters in which the
Department sought the death penalty, and did so conscientiously and in
accordance with Congress' intent.
Any death penalty statute, however, must be implemented in a manner
that is fair and non-discriminatory. Since the Supreme Court struck
down the then-existing death penalty statutes in 1972, it has been
clear that, in order to be constitutional, the death penalty cannot be
applied in an arbitrary or discriminatory manner. I think that everyone
agrees on this, regardless of his or her views on the death penalty.
Unfortunately, we cannot say with assurance today that the federal
death penalty is carried out in a consistent and non-discriminatory
fashion. While I was at the Department of Justice, Attorney General
Reno asked for a review of information concerning defendants who were
subject to the federal death penalty. That review revealed unexplained
racial and geographic disparities. Attorney General Reno and Deputy
Attorney General Holder therefore asked for a more comprehensive
analysis.
The results of the fuller analysis were released last September,
and they confirmed the disparities that we had observed two years
earlier. From 1984 through 2000, approximately 70% of the defendants
against whom the Department sought the death penalty were African-
American or Hispanic. Moreover, a few jurisdictions, mostly in the
South but also including Puerto Rico, accounted for a disproportionate
number of death penalty cases. In short, these statistics raised the
disturbing possibility that whether a defendant was sentenced to death
might depend less on the defendant and his offense than on where he was
prosecuted and what his race or ethnic group was.
Of course, taken alone, these statistics do not demonstrate that
there is intentional or systemic discrimination in the application of
the federal death penalty statute. There might be legitimate reasons
for these stark disparities. But without further analysis, we cannot
rule out that there may be some systematic factors operating in a
discriminatory fashion. And there can be no disputing that an African-
American or Hispanic should not be more likely to receive the death
penalty simply because of his or her race or ethnicity. Fairness and
justice require that we look further into these disparities.
In response to the troubling questions raised by the September 2000
survey, Attorney General Reno and Deputy Attorney General Holder
ordered the Department to conduct a variety of other studies. Most
importantly, they asked the National Institute of Justice to assess the
relationship between the state and federal criminal justice systems and
how they affect the imposition of the death penalty. To ensure the
integrity of the investigation and the reliability of the results, the
Attorney General requested that outside experts be included. And while
the Attorney General did not ask for a moratorium on federal
executions, she did not need to: President Clinton delayed the only
execution scheduled to occur during his Administration in order to
permit the Department to carry out these studies.
The present Attorney General has taken a somewhat different
approach. First, the Attorney General delayed for several months
proceeding with the National Institute of Justice study. I am pleased
that the Department has finally decided to move ahead with this study.
If properly carried out, it will be our best source of information
concerning the reasons for the disparities identified above.
Second, the Department of Justice recently released a summary of
its further analysis of the data collected by Attorney General Reno and
Deputy Attorney General Holder, supplemented by some additional
material. Unfortunately, I do not think that the most recent report is
as convincing as the Department claims. It is not possible to evaluate
the report in full, as the Department has not released the underlying
data but only its own analysis. Nonetheless, some of the shortcomings
of the report are obvious. While others have discussed them in more
detail, I would like to highlight some points that I find particularly
significant.
The new report relies heavily upon the observation that, of those
defendants who are charged with capital offenses, the death penalty was
sought for a higher proportion of white defendants than minorities. But
resting on this point ignores an extremely significant question: why
are 80% of those defendants who are charged with federal capital
offenses African-American or Hispanic? Indeed, the fact that the
Department, through a process that is designed to be race-blind,
decides that more minorities than whites should be dropped from the
death penalty process, itself suggests the possibility that too many
minorities are initially being charged with capital crimes. The
Department's report offers some speculations as to the reasons why such
a high proportion of capital defendants is African-American or
Hispanic, but a thorough and impartial study is needed to determine
whether or not the Department's speculations are grounded in fact.
Second, why do a significantly higher percentage of white
defendants than minority defendants escape the death penalty through
plea bargains? The Department's report noted this disparity, and
Attorney General Ashcroft has commendably taken steps to try to bring
greater uniformity to the plea process in future capital cases. But
this does not answer the question of whether there were serious
problems between 1988 and today, which could affect not only to the 19
men presently on federal death row, but the dozens of other federal
capital cases pending resolution.
In addition, the Department's analysis did not satisfactorily deal
with the issue of geographic disparity. The Department's position is,
essentially, that each of the districts which charges a comparatively
high number of capital cases has reasons for doing so. But without
looking at those districts that do not charge as many capital cases, to
see if the same factors are applicable there, the Department cannot
establish that the death penalty is being applied with the consistency
that fundamental fairness and constitutional principles of equal
justice require.
For example, the Department noted that most of the very large
number of capital cases from the Eastern District of Virginia resulted
from drug murder cases. It explained the basis for charging these cases
federally by reference to certain deficiencies in state criminal
procedure. But these deficiencies exist in other states as well,
including, perhaps, states where the federal prosecutors did not seek
the death penalty with such frequency. Without comparing similar
districts we cannot tell whether or not the factors mentioned by the
government are actually the reason for the disparities. Nor does the
report adequately explain why some districts seek the death penalty in
a much higher proportion of capital cases than other districts.
In short, the Department's recent report, in my view, does not
dispel the shadow of unfairness and inconsistency in the application of
the death penalty. More study is needed so that we can be certain that
a defendant's race or ethnicity, or the state where the crime was
committed, play no role--conscious or otherwise--in the decision
whether or not to seek the death penalty. Indeed, the Department
recognizes the need for further analysis, since it has now committed to
going forward with the National Institute of Justice study.
However, the Department has refused to delay executions until these
studies are completed, and I find this rush to execution inexplicable.
There is much to be gained and nothing lost by halting executions until
we are fully satisfied that no subtle or systematic discrimination
infects the administration of the federal death penalty. Would not the
interests of justice be better served by awaiting the results of the
Department's studies studies that could have been underway by now if
the present Administration had not delayed them? And, equally
important, given that many African-Americans and Hispanics question
whether the criminal justice system treats them fairly, doesn't the
public perception of justice require that we be satisfied, before
anyone is executed, that the death penalty was sought against that
person by a fair and unbiased process?
It is no answer to say, as the Attorney General does, that Juan
Garza is guilty and deserves to die. The need for a moratorium on
executions has nothing to do with Juan Garza's individual case, but
relates to the fairness of the system. We do not permit the conviction
of a defendant who was tried by a jury from which members of one race
were excluded, regardless of how guilty he or she is. We should not
permit the execution of a defendant who was selected for the death
penalty by a discriminatory process, regardless of how guilty he or she
is.
Mr. Chairman, I recognize and sympathize with those who believe
that, if we are to have a death penalty, it should be carried out with
reasonable promptness. But the death penalty is uniquely irremediable
in the criminal justice system. If the studies requested by Attorney
General Ashcroft determine that there is no discrimination in the
application of the federal death penalty, then executions can go
forward. But if the Department of Justice studies find that the federal
death penalty operates in a discriminatory manner even if there is no
intentional discrimination by individual members of the Department we
will not be able to undo the death of those who were executed as a
result of an unfair process. For this reason, I believe that there
should be a moratorium on all executions until the Department completes
the studies it has undertaken. If the studies demonstrate that the
system is discriminatory, the moratorium should remain in effect until
the system is fixed.
Thank you for this opportunity to be heard.
Statement of John McGinnis, Professor, Benjamin N. Cardozo School of
Law
Thank you for the opportunity to submit this statement to your
committee. I am a law Professor at the Benjamin N. Cardozo School of
Law who has written about the judicial appointments process. Here I
summarize my views for your committee. A longer discussion together
with citations can be found in John O. McGinnis, The President, the
Senate, the Constitution and the Confirmation Process: A Reply to
Professors Strauss and Sunstein, 71 TEX. L. REV. 633 (1993).
I limit myself to three propositions. First, the President has sole
authority to nominate judges and has no obligation to take advice from
the Senate. Second, the President has an obligation to take into
account the nominees' views on how to interpret the Constitution. Such
urisprudential views should be sharply distinguished from political
ideology, because a theory of constitutional jurisprudence is a theory
of interpretation, not a theory for getting politically pleasing
results. Third, the Senators are of course free to take into account
the jurisprudential views of the nominee as well, but once again that
should be distinguished from a checklist of the nominee's positions on
the most political controversial issues of the day. The structure of
the Constitution suggests the Senate will succeed in blocking
presidential nominees only for weighty and substantial reasons.
1. The President's Role
The Appointments Clause assigns to the President the sole
responsibility for making nominations to the judiciary. Contrary to the
claims of some scholars, a constitutional prenomination advisory role
for the Senate is utterly belied by the text and the purpose of the
clause. Similarly, the overwhelming weight, if not the unanimity, of
historical sources that bear on the clause's meaning argue against such
a role.
The Appointments Clause provides in relevant part: ``[The
President] shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided
for, and which shall be established by Law . . . .'' The very grammar
of the clause is telling: the act of nomination is separated from the
act of appointment by a comma and a conjunction. Only the latter act is
qualified by the phrase ``advice and consent.'' Furthermore, it is not
at all anomalous to use the word ``advice'' with respect to the action
of the Senate in confirming an appointment. The Senate's consent is
advisory because confirmation does not bind the President to commission
and empower the confirmed nominee. Instead, after receiving the
Senate's advice and consent, the President may deliberate again before
appointing the nominee.
The purpose of dividing the act of nomination from that of
appointment also refutes any notion of a prenomination role for the
Senate. The principal concern of the Framers regarding the Appointments
Clause, as in many of the other separation-of-powers provisions of the
Constitution, was to ensure accountability while avoiding tyranny.
Hence, they gave the undiluted power of the nomination to the President
so that the initiative of choice would be a single individual's
responsibility, but provided the check of advice and consent to
forestall the possibility of abuse of this initiative. Gouverneur
Morris described the advantages of this multistage process: ``[A]s the
President was to nominate, there would be responsibility, and as the
Senate was to concur, there would be security.''
The Federalist., also understands the power of nomination as an
exclusively presidential prerogative.'' Indeed, Alexander Hamilton
answers critics who would have preferred the whole power of appointment
to be lodged in the President by asserting that the assignment of the
power of nomination to the President alone assures sufficient
accountability:
[I]t is easy to show that every advantage to be expected from
such an arrangement would, in substance, be derived from the
power of nomination which is proposed to be conferred upon him;
while several disadvantages, which might attend the absolute,
power of appointment in the hands of that officer would be
avoided. In the act of nomination, his judgment alone would be
exercised; and as it would be his sole duty to point out the
man who, with the approbation of the Senate, should fill an
office, his responsibility would be as complete as if he were
to make the final appointment.
Thus, a constitutional prenomination role for the Senate would be
at odds with the Framers' interests in assuring the President's
undivided accountability for the initial choice.
Closely related to the Framers' interest in assuring accountability
was their interest in avoiding an appointment that would be the result
of secret deals. Once again The Federalist is instructive. In defending
the clause's structure of presidential nomination and public
confirmation, Hamilton contrasted it with the appointments process by a
multi member council in his own state of New York. Such a council
acting in secret would be ``a conclave in which cabal and intrigue will
have their full scope . . . . [T]he desire of mutual gratification will
beget a scandalous bartering of votes and bargaining for places.''
Delegates to the Constitutional Convention had expressed similar
concerns. Thus, the assertion of a prenomination role for the Senate
runs afoul of the Framers' concerns about selection by multi member
bodies. If the Senate had a formal prenomination advisory role, the
Senate leaders and the President might well be tempted to make a deal
that would serve their parochial interests and then be insulated from
all but pro forma scrutiny.
Other contemporaneous commentary on the Appointments Clause
repudiates any special prenomination role for the Senate. For instance,
James Iredell a leading proponent of ratification in North Carolina and
subsequently a Supreme Court Justice observed at his state's ratifying
convention,
As to offices, the Senate has no other influence but a
restraint on improper appointments. The President proposes such
a man for such an office. The Senate has to consider upon it.
If they think him improper, the President must nominate
another, whose appointment ultimately again depends upon the
Senate.
Jefferson also makes plain that for once his view on an issue of
constitutional interpretation coincides entirely with that of Hamilton:
``The Constitution itself indeed has taken care to circumscribe [the
appointments process] within very strict limits: for it gives the
nomination of the foreign Agent to the President, the appointment to
him and the Senate jointly, fire commissioning to the President.''
Finally, the construction of the Appointments Clause that reserves
the act of nomination exclusively to the President is supported by the
practice of the first President and Senate. In requesting confirmation
of his first nominee, President Washington sent the Senate this
message: ``I nominate William Short, Esquire, and request your advice
on the propriety of appointing him. ``The Senate then notified the
President of Short's confirmation, which showed that dray too regarded
``advice'' as a postnomination rather than a prenomination function:
``Resolved, that the President of the United States be informed, that
the Senate advise and consent to his appointment of William Short
Esquire . . . .'' The Senate has continued to use this formulation to
the present day.
President Washington made his view that the Senate has no
prenomination role even more explicit when he wrote in his diary that
Thomas Jefferson and John Jay agreed with him that the Senate's powers
``extend[] no farther than to an approbation or disapprobation of the
person nominated by the President, all the rest being Executive and
vested in the President by the Constitution.''
Washington's construction of the Appointments Clause is the same
one embraced by his successors. Not one subsequent President has
recognized a constitutional role for senatorial advice prior to
nomination. To be sure, some Presidents have consulted with key
Senators and a few with the Senate leadership, but they have done so
out of comity or political prudence and never with a declaration of
constitutional obligation. Because the branches are not
``'hermetically' sealed from one another,'' informal interchange
between the branches can be expected and does not support any
constitutional role for the Senate in the prenomination process.
II. The President's Obligation to Consider Jurisprudential Views of
Nominees
Once it is understood that the power of nomination is textually
committed solely to the President, it is clear that any analysis of the
structure of the Appointments Clause must begin not with the advice and
consent function of the Senate but with the nomination power of the
President. In this, as in all other acts of exclusive presidential
authority, the President must be guided by his robust oath to
``preserve, protect and defend the Constitution of the United States.''
Thus, the President appears to be under a constitutional obligation to
nominate as judges individuals who he believes will interpret the
Constitution in a manner that generally accords with his view of its
lawful construction. A President who nominated a jurist whose
constitutional views differed fundamentally from his own would abrogate
this most solemn oath.
That the President has constitutional obligations in his act of
nomination is neither startling nor anomalous. Substantial evidence
indicates that the Framers contemplated that the President would take
account of his constitutional responsibilities when carrying out his
presidential duties. For example, the Framers clearly understood that
the President would veto unconstitutional laws. It was even
contemplated that the President would refuse to execute laws that
violate the Constitution. Indeed, the President's constitutional
vigilance is essential to the entire governmental structure because the
ultimate protection against constitutional error is the power of the
people to overturn error, using the democratic process to influence the
composition of the political branches. Thus, when a President
campaigns, as Presidents Reagan and George W. Bush did, on pledges to
promote judges of a particular constitutional philosophy, they are
making a pact with the people concerning the exercise of one of their
fundamental presidential responsibilities.
To acknowledge the central importance of the President's nominating
a jurist with what the President believes are correct constitutional
principles is not to suggest that the President should investigate a
potential nominee's views on particular cases. A federal judge's task
is not to make a series of unconnected policy pronouncements on
individual issues, but to apply a coherent body of interpretative
principles to the full range of constitutional (and statutory)
questions that come before the court. One of the advantages of the
independent and life-tenured judiciary provided by Article III of the
Constitution is that it is at least relatively shielded from partisan
and policy pressures that may distort the application of even firmly
held principles in particularly controversial cases. Thus, it is wholly
appropriate for the President to satisfy himself as to the nominee's
views at a level of generality commensurate with a proper understanding
of the Article III judiciary's comparative advantage in principled
decisionmaking.
Thus, I believe it would be misleading to say that a President
committed to the Constitution makes ideological appointments. Ideology
is a word more suited to politics. Constitutional interpretation should
know no ideology. The Constitution is the document that holds us
together as Americans despite political and ideological differences. Of
course, there may be disagreements about interpretative principle but
these disagreements are different from ideological disagreements,
because they should not be rooted in a desire for particular results,
but in a theory of the how the constitution is best construed. In
considering judicial nominees, we should be mindful of Chief Justice
John Marshall's famous exhortation that ``we should never forget it is
a constitution we are construing.'' Discussions of judicial nominees
should be discussed in terms of constitutional construction, not
ideology.
Moreover, even if adherence to a proper view of constitutional
construction is a necessary qualification for nomination, it is hardly
a sufficient one. Judicial temperament is also important, for it is
only such temperament that allows a judge to resist the improper
pressures, both from the outside world and within himself, that can
interfere with the proper application of interpretative principles.
Furthermore, once the President has ascertained that the nominee shares
his basic constitutional principles, he is at liberty to take political
considerations, such as geography and other kinds of political
diversity, into account to guide his final choice. He may, of course,
consult members of the Senate or anyone else in performing this
political calculus.
III. The Senate Role in Evaluating Nominees' Views.
The Senate has the ability to evaluate the nominees'
jurisprudential views as well. It is important to note two
considerations in this regard. First, the Framers created a
constitutional structure that makes it difficult for Senate to
successfully oppose a President of ordinary political strength for
narrow or partisan reasons, thus permitting the initiative of choice to
rest with a single national leader who is more likely than a
legislative body to select a candidate of consistent constitutional
principle. Second, the Senate, like the President, should distinguish
between jurisprudential views and ideology if we are to fulfill the
promise of a judiciary that operates according to law rather than
politics.
The structure of the Constitution suggests that Senators may
evaluate the jurisprudential views of nominees. Senators too have taken
an oath ``to support the Constitution ``It is thus reasonable to infer
that the Framers located the process of advice and consent in the
Senate as a check to prevent the President from appointing jurists of
unsound principles as well as jurists of unsound character or
competence.
The Framers did not, however, expect the Senate to exercise so
independent a choice that it would rival the President in determining
the nature of appointments. As noted earlier, the Framers expressly
contrasted the role of the President, who was given a role of plenary
choice in the appointments process, with that of the Senate, which was
given only the power of rejection. Given that the Senate was not to
exercise choice itself, it appeared to Alexander Hamilton that a
nominee should be rejected only for ``special and strong reasons.''
Moreover, according to The Federalist, the Senate must persuade the
public that its reasons compelled rejection, for otherwise the
``censure of rejecting a good [nomination] would lie entirely at the
door of the Senate.'' Thus, the original understanding of the
Appointments Clause does not contemplate rejections for reasons of
partisanship or disagreement over the nominee's likely vote in a single
case, because these reasons would be neither special nor strong.
The Framers, however, did not depend on exhortations in The
Federalist alone to prevent the Senate from refusing confirmations for
other than weighty and publicly compelling reasons. The first of these
structural advantages is the President's power of repeated nomination.
The Federalist is quite explicit in noting that this authority will
tend to discourage rejections for less than publicly compelling
reasons. In particular, this structural advantage ensures that it will
be futile to reject a candidate for reasons of jurisprudential point of
view unless the Senate can bear the burden of persuading the public
that the interpretative principles espoused by the nominee are unsound.
If it fails to make that case and rejects the nominee for a pretextual
reason (e.g., disagreement with some past political position of the
nominee or his express views on some particular case), the President
would generally be in a position to find a second candidate without
these putative defects who generally shares the President's
jurisprudential ``point of view.''
The President's second structural advantage is the unitary nature
of the executive office as compared to the diffuse and variegated
nature of the Senate--even when it is controlled by the opposition
party. The notion that the Senate should have an essentially coequal
role in the confirmation process is based on the notion that a
government where the Senate is controlled by one party and the
executive by another is a government equally divided.'' The President,
however, is a single individual possessed of a single view of the
Constitution, whereas the Senate is a body composed of many individuals
with a wide range of views, including members with views like that of
the President. When the President has a substantial basis of party
support in the Senate and thus a nucleus of probable supporters, he
will be in a position to persuade those in the other party whose
constitutional views are most like his own to support his nominee.
Thus, the image of a divided government with the Presidency and the
Senate in the hands of different parties as a government in any sense
equally divided when it comes to an analysis of the Appointments Clause
and the confirmation process is a fundamentally false image, as
recognized by George Mason: ``Notwithstanding the form of the
proposition by which the appointment seemed to be divided between the
Executive & Senate, the appointment was substantially vested in the
former alone.'' Moreover, the President's advantage in the process is a
considered feature of the Framers' design: they knew how to create a
process by which the power of the Executive and the Senate would be
rendered more equal. Because of their substantial fear of foreign
entanglements, for instance, they required a two-thirds majority of the
Senate to ratify treaties before they become the law of the land.
The final presidential advantage is the stronger mandate that
generally flows from his role in the structure of the Appointments
Clause. Because it is known that the President bas the initiative of
choice in the appointment of Supreme Court Justices, the
jurisprudential views of prospective appointments are likely to become
a campaign issue between candidates with differing constitutional
philosophies. On the other hand, because each Senator is only one voice
of many in ratifying the President's choice, the issue of judicial
appointment is generally of less importance to the rational voter than
are issues over which the Senator is likely to possess more initiative.
Accordingly, as a general matter the President can rely on a greater
mandate for his choice than a Senator can for his opposition.
Second, we will have a better judiciary if the Senate focuses on
character and jurisprudential views rather than ideology as
encapsulated by political disagreements on the divisive issues of the
day. An inordinate emphasis in confirmation hearings on single issues
presented in largely political terms (currently the issue of most
prominence is abortion) endangers the distinction between law and
politics because it may suggest that a judge is charged with making
policy on a set of discrete issues rather than applying a coherent body
of legal theory to all cases. Moreover, the aspects of the modern
confirmation process that resemble a political campaign may encourage
Presidents to seek easy confirmations (and by doing so, conserve their
political capital) by choosing nominees with characteristics likely to
command political support rather than outstanding jurists with
consistent constitutional principles.
A focus by the Senate on ideology so defined is likely to
exacerbate the tendency to evaluate the nominee on the basis of
politically driven issues and result in less distinguished nominees
given that judicial distinction of any sort is unlikely to arise from a
jurisprudence aligned most closely with politically popular positions
on the controversies of the day. Indeed, the Framers rejected the
multimember council as a means for selecting appointees at least in
part because of their concerns over the effects of political horse
trading on the quality of nominees. Moreover, the dangers that a
greater senatorial role poses to any jurisprudence of consistent
principle can also readily be understood in terms of the fundamental
tenets of republican theory outlined by Madison in The Federalist No.
10. Senators represent smaller political entities than the President
and thus are more likely to be responsive to particular factions
intensely interested in the outcome of a particular case. The
President, representing the nation as whole, is in a better position to
rise above faction and make his choice on the basis of a consistent
jurisprudential position that will apply across the full range of
cases. Thus, a larger role for the Senate is likely to lead to a
greater focus on the nominee's position on the current political
controversies of the day or his membership in an ethnic group or some
political faction rather than on more appropriate matters such as the
soundness and coherence of the nominee's jurisprudential views and the
quality of his legal reasoning.
Conclusion
The Constitution assigns fundamentally different responsibilities
to the President and the Senate in the appointment of judges. Both may
consider the jurisprudential views of nominees but the structure of the
Appointments Clause gives the President a substantial advantage in
having his views prevail. Finally, the modern confirmation process
shows the risk of substituting ideological and issue driven evaluation
of nominees for inquiries into their character and jurisprudential
views.
People for the American Way Foundation
July 3, 2001
Senator Charles E. Schumer, Chairman
Subcommittee on Administrative Oversight
and the Courts
313 Hart Senate Office Building
Washington, D.C. 20510
Dear Senator Schumer:
As a member of the bipartisan Task Force on Federal Judicial
Selection of Citizens for Independent Courts, I am writing to clarify
several aspects of the testimony at the hearings held by the
Subcommittee on June 26 with respect to the report of the Task Force.
Some of the testimony at the hearing, particularly the testimony of
Clint Bolick who specifically identified me as a member of the Task
Force, may have left mistaken impressions concerning the Task Force
report, which should be clarified for the record.
First, the Task Force report clearly states that it is appropriate
for Senators to consider ideology, in the sense that you defined it at
the hearing, in reviewing judicial nominations. The Task Force report
criticized the use of ideology in the ``pejorative'' sense of ``fixed
or rigid ideological commitments to certain results whatever the facts
or law of the case,'' which are ``often connected to partisan
differences.'' But in the broader sense that you used the term
``ideology'' at the hearings, the Task Force specifically stated that
``it is appropriate to encourage reviewers to investigate the ideology
of candidates for federal judgeships.'' In particular, the Task Force
stated that:
(I]t is both appropriate and important for reviewers to ask
questions designed to flesh out a candidate's underlying
philosophical and normative commitments. These could include,
but would not necessarily be limited to, questions about a
candidate's general attitudes about justice, about reasoning
from precedent, about major constitutional values such as
liberty and equality, and about leading cases in our legal
culture.
A complete copy of the Task Force report, as printed in 2000 by
Citizens for Independent Courts as part of Uncertain Justice, is
enclosed with this letter for inclusion in the record of the
Subcommittee's hearings.
Second, Mr. Bolick's testimony claims that the Task Force ``decries
the blue-slip process. With all due respect, this is an inaccurate
characterization. The task Force did not condemn the blue-slip process
itself, but instead was concerned about the recent abuses of that
process, which contributed to delays of more than four years in
considering some of President Clinton's judicial nominations. As the
New York Times wrote in April, appropriate and judicious use of the
blue-slip process can produce positive results, including helping to
``secure a balanced array of nominees that includes centrists along
with conservatives.'' A copy of a recent People For the. American Way
Foundation memorandum on the blue-slip process is enclosed with this
letter for the record.
I hope that this letter will be helpful. to the Committee in its
deliberations. Please do not hesitate to contact us if we can provide
any further information.
Thank you.
Sinecerely,
Elliot M. Mincherg
General Counsel and Vice-President
Statement of Roger Pilon, Vice President for Legal Affairs at the Cato
Institute & Director of Cato's Center for Constitutional Studies
Timed nicely for Sen. Charles Schumer's hearings this afternoon on
judicial ideology and the Senate confirmation process, Democratic party
elder Joseph A. Califano Jr., placed an op-ed in last Friday's
Washington Post entitled, ``Yes, Litmus-Test.ludgcs.'' The wraps are
now fully off the Democrats' plan to block President Bush's nominees
for the federal courts unless they meet a Democratic ideological litmus
test. Early in the year, still smarting from the Supreme Court's ruling
in Bush v. Gore, academics like Yale Law School's Bruce Ackerman urged
Senate Democrats to reject every Bush nominee to the bench until the
White House had a legitimate occupant. That was too much, of course.
But Senate Democrats, once they regained power, did the next best
thing. They've turned the judicial confirmation process into a full-
blown ideological affair, with today's only the latest in a series of
hearings not on the Bush nominees but on judicial ideology and the
Senate's confirmation role.
Califano now gives us the rationale for it all. Gridlock and big
money, he says, have long kept Congress from legislating on a wide
range of urgent matters. As a result, concerned citizens have been
plying the courts with petitions they once took to the legislative and
executive branches, making the courts ``increasingly powerful
architects of public policy.'' Indeed, ``who sits in federal district
and appellate courts is more important than the struggle over the
budget, the level of defense spending,'' and virtually everything else
going on in Washington today. For we've all learned, he continues,
``that what can't be won in the legislative or executive may be
achievable in a federal district court where a sympathetic judge
sits.'' Thus, it's time for the Senate to step in, not to legislate but
to determine, on explicitly ideological grounds, who the judicial
architects will be, who will be ``setting national policy'' from the
bench.
What a striking picture. Everything is politics. Nothing is
principle. Indeed, it is not a little noteworthy that over the entire
article, devoted to our most basic political arrangements, the word
``constitution'' appears not even once. That's no accident. The
Constitution sets forth the principles and the rules under which we're
supposed to be governed. It divides and separates power, assigning
different tasks to different parts of government.
But on Califano's view, judges don't apply law to decide disputes,
as the Constitution contemplates. ``Sympathetic judges'' make law, like
so many legislators, ``setting national policy'' in the process. As for
our nominal legislators, the Senate is reduced to vetting and electing
our true rulers. One imagines that the word ``constitution'' doesn't
appear in Califano's article because the document is an embarrassing
relic, utterly inconsistent with his picture of a thoroughly
politicized judiciary.
Yet for all that, Califano's picture, unfortunately, is too close
to the truth to be ignored. The lesson he and his fellow Democrats have
drawn from it is wrong--unless, of course, they like the picture. But
we are today, in all candor, a very long way from living under
constitutional principle.
The main origins of the problem are in the Progressive Era of a
century ago, when the social engineers of the time sought to do through
government what the Constitution left to be done in the private sector.
Things came to a head during the New Deal when a frustrated Franklin
Roosevelt attempted to pack the Supreme Court, an event Califano notes
without comment. The scheme failed, but FDR won the day when a cowed
Court began rethinking the Constitution, effectively eviscerating
constitutional limits on federal power. Although the Court that
emerged, by virtue of its deference to the political branches, was
called ``restrained,'' it was, in truth, ``activist''--finding
congressional and executive powers nowhere granted, ignoring individual
rights plainly in the Constitution. And the Court's rethinking led
ineluctably to the shift of power to the judicial branch.
The shift had two aspects. First, with the political branches now
free to rule almost every aspect of our lives, it was only a matter of
time before their ever-expanding product ended up in the courts, with
the courts asked to sort out the mess Congress was making of things.
But second, those who had long pushed such programs didn't always win
in the political branches. When that happened, they turned increasingly
to the courts, trying to win there, from ``sympathetic judges,'' what
they had failed to win politically. Regrettably, the Warren and Burger
Courts, already deferring to the political pursuit of ``social
justice,'' were too often only too willing to step into the fray,
imagining themselves to be a legislature of nine.
The Rehnquist Court, by contrast, has taken modest steps over the
past decade toward resurrecting constitutional principles of limited
government. However modest, those steps have alarmed liberal Democrats.
They can't imagine anyone thinking that Congress's powers are limited.
They can't imagine that if an end is worthy, Congress might still not
have the power to pursue it. They can't imagine that James Madison, the
principal architect of the Constitution, was serious when he wrote in
Federalist #45 that the powers of the new government would be ``few and
defined.''
Do we want to ensure the separation of powers and an independent
judiciary? Do we want to restore limited constitutional government and,
let's be clear, the rule of law? Those are the stakes in the current
debate. If Senate Republicans are serious, they cannot pretend
otherwise as the confirmation battles unfold.
Statement of Hon. Paul Strauss, Shadow U.S. Senator elected by the
voters of the District of Columbia
Chairman Feingold, and Members of the Senate Subcommittee on the
Constitution, Federalism, and Property Rights, I am Senator Paul
Strauss, the United States Senator elected by the voters of the
District of Columbia, and an attorney who practices in our local
courts.
I appreciate the opportunity to provide this statement on behalf of
my constituents, the citizens of Washington, D.C. I am testifying in
order to raise my voice in favor of a moratorium on the federal death
penalty, until a full investigation into racial disparities in the
system can be conducted. I commend the leadership for bringing this
issue the attention that it deserves.
It is especially disturbing that seventeen of the nineteen people
on federal death row are minorities. One of the issues that was brought
up is that the racial disparities on federal death row, which seem to
be greater than those in the state system might be due to the federal
prosecution of local crimes. It has been noted that, in fact, many of
the federal death penalty cases are for crimes related to federal crack
cocaine prosecutions.
one of the witnesses, Mr. McBride, a former federal prosecutor from
the Eastern District of Virginia who has tried federal capital cases,
has stated that the federal government only steps into local cases when
there is a request for such action from state prosecutors. In the
District of Columbia, it appears that a different rule applies.
The residents of Washington, D.C. have consistently raised their
voices in opposition to the death penalty. First, in 1992, they voted
against it in a referendum, with a margin of two to one.\1\ Then, in
2000, the city council passed a resolution once again reaffirming
opposition to capital punishment. The city has certainly not asked for
federal intervention in order to have the death penalty imposed on its
residents.
---------------------------------------------------------------------------
\1\ On November 3, 1992, 66,303 voted in favor of the death
penalty, while 135,465 voted against it.
---------------------------------------------------------------------------
Recently, however, the Federal Government has seen fit to prosecute
Tommy Edelin, a District of Columbia resident, on charges of capital
murder, for crimes commited within the District of Columbia. Many see
his case as a test case for federal involvement in prosecuting crimes
committed within Washington, D.C. This case is not an issue of a crime
committed against the federal government, or on federal property, but
is an issue of a crime committed against the people of the District of
Columbia.
While I recognize that national sentiment seems to be in favor of
the death penalty, if local residents do not wish to see capital
prosecution for local crimes, then the death penalty should not be
forced upon them, whatever the national sentiment is. In light of
recent information showing possible racial disparities in
implementation of the federal death penalty, it seems that by
prosecuting residents of the District of Columbia, which has a large
minority community, these disparities will only increase.
Although my main concern is with the representation of the ideas
held by my constituency, I recognize the larger issue as well. The
debate about the death penalty as a whole is perhaps one of the most
divisive in our society today. Many people are adamantly opposed to its
continued use, and see it as cruel and unusual punishment, while even
more see it as a useful tool in the spectrum of punishments for crimes.
It is obvious that the debate on that issue will not end anytime soon.
The death penalty is the obviously most permanent form of
punishment that we have in this country. There should be no room for
error in its implementation, and not even an appearance of bias in its
prosecution. To continue to have a perception of bias would cause
further doubts in an institution that many Americans already see as
flawed.
Those who see the federal death penalty as fair and unbiased would
be wise to listen to the testimony of David Bruck. When he spoke about
the situation in south Africa during apartheid, he spoke of judges who
said much of what many Americans are saying now: ``blacks commit more
crime.'' in hindsight, and to many at the time, that statement seems to
be farcical. While I am not saying that we live under apartheid in this
country, long term prejudices against African-Americans and other
minorities cannot be declared ``cured'' just because we wish that to be
the case. The exact opposite must be assumed.
While we are loathe to admit it, many Americans still harbor
prejudice against those that they see as ``other.'' that prejudice has
an effect on the decisions of federal juries, which are more likely to
consist of people who have had vastly different life experiences from
those being charged, especially in drug cases.
in light of the execution of Juan Raul Garza, a man of Hispanic
heritage, on June nineteenth-the second federal execution in one month-
I strongly urge the federal government to call an immediate moratorium
on all federal executions. We should not let another person be executed
before a review of the uncertainty surrounding the even handedness of
the federal death penalty. In addition, as an advocate for the
residents of the District of Columbia, I raise the additional concern
of the federalization of what, rightfully, should be seen as a local
decision against capital punishment. On behalf of my constituents, I
thank you for bringing this issue to national attention, and for
allowing me the opportunity to make these comments.
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
Mr. Chairman:
The Senate should take its role in the confirmation process very
seriously. We must make certain that the men and women who are
appointed to the Federal Bench are people of high character, good
judgment, and great legal ability.
In my view, ideology matters to the extent that it demonstrates
that a nominee may be a judicial activist. Judges must understand that
they have a limited role in the federal system. Their job is to
interpret the laws, not make the laws. They should never impose their
personal views of what they think the law should be, regardless of
whether those views are conservative or liberal.
Of course, senators have the right to vote against nominees for any
reason. However, as I have said in the past, I believe that the
President is entitled to some deference in the choices he makes for the
federal courts. The standard should not be whether we personally would
have chosen the same person, or whether the candidate meets some
political litmus test. The real question should be whether the
individual is qualified and will exercise judicial restraint.
I believe that President Bush has nominated a fine group of
candidates who will serve our nation with distinction. These nominees
would fill some of the 107 current judicial vacancies, which is a
vacancy rate of 12.5%. A few years ago, some argued that there was a
vacancy crisis in the federal courts with numbers lower than these.
They constantly blamed Republicans for not acting on President
Clinton's nominees. However, when the final numbers were in, it became
clear that the Judiciary Committee under Republican leadership was very
fair to President Clinton, and I hope the same can be said about
President Bush in a few years.
President Clinton had 377 judges confirmed, which is only five less
than President Reagan. This is true even though Republicans controlled
the Senate during six of President Clinton's eight years, just as we
did during six of President Reagan's eight years at a time when I made
confirmations a top priority of the Committee. At the end of the
Clinton Administration, there was a 7.8% vacancy rate, which is lower
than the 11.5% vacancy rate at the end of the earlier Bush
Administration or the 12.5% vacancy rate that exists today.
This hearing should help demonstrate that the judicial confirmation
process is one of the top responsibilities of this Committee. Yet, this
year, we have not scheduled any judicial nominations hearings, except
one that then-Chairman Hatch postponed at the request of the Democratic
side. It is true that the Senate is still being reorganized, but other
Committees, such as Armed Services and Veterans Affairs on which I also
serve, have continued to hold nominations hearings while the
reorganization is still underway. In fact, this Committee is currently
holding legislative and oversight hearings on various topics, including
this hearing today and one tomorrow.
I look forward to us having hearings as soon as possible on the
many judicial nominees who are pending.
Department of Government
The University of Texas at Austin
Austin, Texas 78712-1087
June 22, 2001
Senator Charles E. Schumer
Committee on the Judiciary
Subcommittee on Administrative Oversight and Courts
524 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Senator Schumer,
Thank you for the opportunity to contribute written testimony to
the subcommittee hearing on ``Should Ideology Matter? Judicial
Nominations, 2001.'' This is a extraordinarily important topic. I
believe that my article, ``Constitutional Abdication: The Senate, The
President, and Appointments to the Supreme Court'' 47 Case Western
Reserve Law Review 4 (Summer 1997) may be helpful to your
deliberations. I would be delighted to have the article included in the
written record of the Hearing.
In the article, I argue that the norm of deference to the President
regarding appointments to the Supreme Court is, in fact, a form of
constitutional abdication. Deference to the President on appointments
to the court is a relatively recent practice. For more than half of our
history as a nation, the Senate acted as more robust and responsible
coordinate branch of government. In the article, I contrast older
constitutional actions of the Senate with modern confirmation cases and
attempt to articulate the constitutional bases for a more assertive
Senate. In a nutshell, my argument is that the best understandings of
separation of powers require the Senate to consider the full array of
considerations that are available to the executive, when Presidents
make nominations to the Court. Senators are not merely permitted but,
in my view, duty bound to inquire about and assess ideology,
constitutional philosophy, political views and any other matter that is
arguably relevant to the nominee's suitability for appointment.
Both this letter and my article are submitted in my personal
capacity as a scholar in the fields of American political development
and constitutional theory. I am affiliated with the University of Texas
at Austin as Associate Professor of Government, but I do not represent
the University and, to my knowledge, the University takes no position
on matters before this committee.
Yours sincerely,
Jeffrey K. Tulis
Associate Professor
University of Connecticut
Department of Political Science
College of Liberal Arts and Sciences
June 25, 2001
Subcommittee on Administrative Oversight and the Courts
Committee on the Judiciary
United States Senate
Washington D.C. 20510
Dear Mr. Chairman and members of the subcommittee
Thank you for inviting me to provide a written statement concerning
the selection process for United States Supreme Court nominees. For
most of the past decade I have been conducting research on the process
by which presidents--often with the assistance of other executive
branch officials arrive at their respective decisions as to who to
nominate to the Supreme Court. In this regard I have paid special
attention to the factors that influence the internal vetting process
for names, and the creation of administration ``short lists'' for all
high Court vacancies. Although I recognize that other scholars may
submit lengthy expositions on such an important subject, in this letter
I will err instead on the side of brevity. Certainly I would be happy
to elaborate in even greater detail on any aspect of judicial selection
if and when thus subcommittee determines that a more comprehensive
discussion is warranted.
I understand that your subcommittee is particularly interested in
the role that ideology has played in the selection and nomination (pre-
confirmation) process. That subject was the focus of my most recent
book, Pursuit of Justices: Presidential Politics and the Selection of
Supreme Court Nominees (University of Chicago Press, 1999). After
reviewing carefully the selection tactics of nine modern presidents
over the past half century, I concluded that ``ideological
considerations'' (defined broadly to include political and/or
philosophical approaches to the law that might help guide a nominee's
vote in future cases) have influenced nearly every modern president's
deliberations concerning prospective nominees to the U.S. Supreme
Court. To be sure, ideology has not always, been the dominant factor in
the selection process; but it has at least shaped (and in some eases
outright altered) this decisionmaking process in most instances.
Even casual observers of the Nixon and Reagan Administrations'
selection processes might have guessed that those two presidents would
emphasize ideological concerns in making their high Court selections.
Both Reagan and Nixon openly confessed their frustrations at certain
Supreme Court precedents. and each promised that he would name Supreme
Court nominees who would adopt a more ``conservative'' approach to
judging. (The Nixon and Reagan administrations' hostility to Miranda
and other liberal Warren-Court precedents left little doubt that
ideological concerns would come to influence their respective selection
processes). Even more striking, however, is the fact that other
presidents--including Presidents Truman, Eisenhower, and Ford--all
quietly considered the ideology of prospective nominees as well,
despite public protestations to the contrary. And President Johnson
took private delight at the prospect of erecting impenetrable liberal
voting blocs on the Supreme Court. Of the modem presidents then, only
John Kennedy appears to have ignored ideological concerns on the whole
in the nominee selection process.
Consider even more closely the role that ideology has played in
modern presidents' selection processes:
President Truman is commonly thought to have settled
on nominees to the high Court based on friendship and personal
loyalty alone. Certainly loyalty was one critical element in
Truman's calculus: Chief Justice Fred Vinson and Justice Tom
Clark were members of the president's poker-playing inner
circle, while Justices Harold Burton and Sherman Minton had
been friends with Truman since his early days as a senator from
Missouri. But out of Truman's vast array of friends--many of
whom were esteemed lawyers--why did these particular men get
the nod? In Tom Clark's case at least, the candidate's ideology
was a significant factor: not only was Clark an unwavering
supporter of Truman's policies, but he had also established
himself as a firm believer in the inherent power of the
president to act in emergencies.\1\ With several controversial
administration programs working their way up though the courts;
President Truman wanted to appoint a justice committed to a
theory of broad executive powers under the Constitution.
---------------------------------------------------------------------------
\1\ Five months before his Supreme Court nomination, Tom Clark had
written a memo to the president in which he had asserted that the
president's power to act in emergencies was ``exceedingly great,'' even
apart from any specific stanitory authority. Memorandum on ``inherent
Executive power to Deal With National Emergencies,'' Justice Department
Folder, Baldfdge Papers, Harry S. Truman Library, Independence, Mo.
---------------------------------------------------------------------------
President Dwight Eisenhower publicly complained about
the highly political Supreme Court selection processes of his
two Democratic predecessors. In fact, the Eisenhower
administration's determination to incorporate the ABA into the
formal selection process, along with its preference for proven
judges with experience on the bench, were both spurred by the
president's expressed desire to rid the process of undue
ideological and partisan influences. Behind the scenes,
however, ideological considerations affected many of President
Eisenhower's selections for the high CourtPrivately, Eisenhower
criticized liberal Justices like Frank Murphy and Wiley
Rutledge. confiding to friends that he wanted to rid the Court
of ``such left-wingers.'' Governor Earl Warren's reputation had
been carved out of his work as a prosecutor in California and
as an advocate of Japanese internment in his home state.
Similarly, William Brennan and John Marshall Harlan had once
made their names in the legal world as highly respected
corporate lawyers. Eventually fnistrated by the liberal voting
patterns of Chief Justice Warren and Justice Brennan,
Eisenhower beseeched Attorney General William Rogers to be
careful with later vacancies to avoid ``the disappointment'' of
those earlier choices. His public comments notwithstanding,
President Eisenhower did not just want ``professional judges''
on the high Court-he wanted (and openly sought) judges who
would adhere to his own moderate-to-conservative views on
issues that came before the Court.
Like Tnunan, President Lyndon B. Johnson was accused
of using the high Court as a depository for his closest and
most trusted friends. Of the three separate individuals Johnson
nominated to the high Court during his five years in office,
two (Abe Fortas and Homer Thornberry) had been longtime friends
of Johnson; the other (Thurgood Marshall) had shown his loyalty
to the president by forfeiting a lifetime appointment on the
U.S. Court of Appeals to serve as solicitor general diving the
Johnson Administration. Yet President Johnson was acutely aware
of how his Supreme Court selections might tip the ideological
balance of the Court. In 1967 Johnson spoke openly to aides
about the possibility of making Judge William Henry Hastic (and
not Marshall) the first African-American to sit on the U.S.
Supreme Court. But Nicholas Katzenbach and other aides helped
convince the president that Hastie's more moderate ideology
might pose a problem for his liberal constitueneics.\2\ In a
telephone conversation with acting Attorney General Corn Clark,
President Johnson seemed almost to revel in the possibility
that Marshall's nomination might secure the Courfs ultra-
liberal voting bloc, remarking: ``we'd put Marshall on the
Court . . . and my judgment is with Hugo Black, Bill Douglas,
the Chief [Earl Warren], Abe Fortas . . . they'll just have a
field day.'' \3\
---------------------------------------------------------------------------
\2\ Nicholas deB Katzenbach, interview by David A--Yalof, June 6,
1996, Princeton, NJ.
\3\ Phone conversation between Ramsey Clark and Lyndon Johnson,
Tape No. K67.01, January 25, 1967, 8:22 p.m., Lyndon Babies Jobnson
Library, Austin, Tex.
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During his 1968 presidential campaign, Richard Nixon
openly blamed the Warren Court for much of the civil unrest
that had afflicted America's cities. Nixon promised that as
president, he would appoint only ``law and order'' judges to
the Supreme Court who would ``strictly interpret the
Constitution and not ``make law.'' And to the extent that
partisan politics allowed him any room to maneuver, Nixon
proved true to his word. Chief Justice Warren Burger first drew
Nixon's attention by virtue of his reputation as an outspoken
judge who had criticized Warren Court decisions favoring the
accused. Justice Lewis Powell reaped the benefits of his past
positions as president of the American Bar Association in the
late 1960's: from That high visibility legal perch, Powell had
decried the ``crisis in law observance'' and openly criticized
Mirunda v. Arizona, which he felt unduly limited reasonable law
enforcement activities. Even Justice Harry Blackmun, who would
later become a steadfast member of the court's liberal wing,
initially impressed Nixon as a conservative ideologue, albeit
one who was confirmable. While on the U.S. Court of Appeals for
the Eighth Circuit, Blackmun had issued a controversial ruling
limiting the application of civil rights laws.\4\ Blackmun had
also sided with prosecutors who brought questionable charges
against criminal defendants: and had been the first circuit
judge in the nation to uphold the constitutionality of the 1961
federal anti-racketeering law.\5\
---------------------------------------------------------------------------
\4\ Sec Jones v. Alfred Mayer. 379 F.2d 33 (8th Cir.
1965)
\5\ Bass v. United States, 324 F.2d 168 (8th Cir. 1963)
---------------------------------------------------------------------------
President Gerald Ford persevered in the face of severe
political obstacles towards the end of 1975: he was an
unelected president with low approval ratings facing a hostile
Democratic Senate less than a year before his first
presidential election campaign. Ford had originally advocated a
less political approach to judicial selection, and he had
placed his trust in Edward Levi, who he considered to be the
epitome of an ``apolitical attorney general.'' Yet Ford was
equally determined to name a candidate with legitimate
conservative credentials when a vacancy arose on the Court that
November. In fact, a leading candidate for the vacancy would be
Solicitor General Robert Bork, who administration officials
believed ``would provide strong reinforcement to the court's
most conservative wing.'' \6\ Ultimately, President Ford tapped
U.S. Court of Appeals Judge John Paul Stevens to the high Court
in a clear nod to confirmation realities. But ford never lost
sight of his desire for a nominee with conservative leanings:
at the time, Attorney General Edward Levi had described Stevens
as a ``moderate conservative'' \7\ and the president was
convinced Stevens provided him with the most viable means of
naming a conservative to the Supreme Court before the upcoming
1976 election.
---------------------------------------------------------------------------
\6\ Memo, Edward H--Levi to Gerald R. Ford, November 10, 1975,
Supreme Court Nominations-Letters to the President, 10 November 1975-12
November 1975 file, Richard Cheney files, Gerald R. Ford Library, Ann
Arbor, Michigan.
\7\ Id.
---------------------------------------------------------------------------
President Reagan's high Court selection process
emphasized ideology to an unprecedented degree among modern
presidents. In a 1985 memorandum identifying attributes of
``the ideal Supreme Court candidate,'' one high-ranking
administration official identified numerous ideological
criteria including (1) the refusal to create new constitutional
rights for the individual; (2) deference to state in their
spheres; (3) appropriate deference to agencies, (4) a
disposition towards 'less government rather than more'; and (5)
appreciation for the role of free market in our society.
Reagan's aides then scoured the judicial landscape for
individuals whose ideological approaches to judging matched as
many of these criteria as possible. Viewed from this
perspective, U.S. Court of Appeals Judges Antonin Scalia and
Robert Bork enjoyed unparalleled records as ideologically
conservative jurists, and each received a nomination to the
Court during Reagan's second term in office. Although a
fallback candidate in late 1987, Judge Anthony Kennedy had been
listed along with five other judges as exhibiting all the
necessary conservative qualities. Before being nominated to the
Court in 1981, Sandra Day O'Connor as well was forced. to
answer probing questions about her views on abortion and other
hot button issues.
Numerous lessons can be learned from a comprehensive study of
modern presidents' selection processes for Supreme Court nominees.
Certainly, presidential statements, about the selection processes
cannot always be taken at face value: even those presidents that
publicly disclaimed the role of ideology in their respective selection
processes remained cognizant of important issues that might come before
the court, and of the impact various candidates might have on the
Court's overall ideological balance. Additionally, it is not enough to
simply writc off various candidacies as simply ``responses to the
realities of confirmation politics.'' At any given time there exists a
pool of literally dozens of candidates capable of fulfilling any of
numeious criteria for the Court, political or otherwise. Discerning why
the president chose ``that particular friend'' or ``that particular
confirmable candidate'' for a Supreme Court vacancy requires that we
analyze other critical factors that may simultaneously infltrate the
decisiomnaking process. And in most instances since World War II,
ideology has played an especially significant role in thus process.
The papers from George H. W. Bush's presidency are only beginning
to be made available to scholars, and papers from the Clinton
presidency will not be available even in limited form until 2006 at the
earliest. Consequently, it is difcult to discover at this point with
any reasonable certainty what drove those two recent presidents to
choose the Supreme Court nominees they did. Still, secondary sources
and early interview data confirm the presence of the same historical
tend described above: ideological considerations continue to play a
significant role in the selection process for modem presidents.
Thank you again for allowing me to submit this statement to your
subcommittee. If you desire any further elaboration or detail on these
or any other aspects of recent selection practices, I would be more
than happy to provide you with such information.
Sincerely,
David Alistair Yalof
Statement of Ernest A. Young, Assistant Professor of Law, University of
Texas at Austin
My name is Ernest A. Young. I am presently an Assistant Professor
of Law at the University of Texas at Austin. Prior to that, I graduated
from Dartmouth College and Harvard Law School and served as a law clerk
to the Honorable Michael Boudin of the United States Court of Appeals
for the First Circuit and the Honorable David Souter of the United
States Supreme Court. I have also practiced law in Dallas, TX and
Washington, D.C., and taught at Georgetown University Law Center and
Villanova University School of Law. At Texas, I teach courses on
Constitutional Law and Federal Courts. I have written extensively on
constitutional and statutory interpretation,\1\ federalism,\2\ federal
jurisdiction,\3\ and conservative jurisprudence.\4\ I recently
participated in a panel discussion at the University of Chicago Law
School on ``conservative judicial activism,'' and I have been invited
to take part in a symposium on the same topic at the University of
Colorado in October of this year.
---------------------------------------------------------------------------
\1\ See, e.g., Adrian Vermeule & Ernest A. Young, Hercules,
Herbert, and Amar:: The Trouble with Intratextualism, 113 HARV. L. REV.
730 (2000); Ernest A. Young, Constitutional Avoidance, Resistance
Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549
(2000).
\2\ See, e.g., Lynn A. Baker & Ernest A. Young, Federalism and the
Double Standard of Judicial Review,--DUKE L. J.--(forthcoming Oct.
2001); Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and
the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 1701 (2001);
Ernest A. Young, State Sovereign Immunity and the Future ofFederalism,
1999 SUP. CT. REV. 1.
\3\ See, e.g., Mitchell N. Berman, R. Anthony Reese, & Ernest A.
Young, State Accountability for Violations of Intellectual Property
Rights: How to ``Fix'' Florida Prepaid (And How Not To), 79 TEX. L.
REV. 1037 (2001); Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L.
REV. 273 (1999).
\4\ See, e.g., Ernest A. Young, Alden v. Maine and the
Jurisprudence of Structure, 41 WM. & MARY L. REV. 1601 (2000); Ernest
A. Young, Rediscovering Conservatism: Burkean Political Theory and
Constitutional Interpretation, 72 N.C. L. REV. 619 (1994).
---------------------------------------------------------------------------
I am grateful to the Subcommittee for the opportunity to place in
the record a few comments on the phenomenon of ``conservative judicial
activism'' as it relates to the judicial appointments and confirmation
process. It is very much in vogue these days to accuse the current
Supreme Court of ``conservative judicial activism,'' \5\ and it is not
surprising that these debates about the current Court's role should
spill over into discussions about what sort of people should join the
ranks of the federal judiciary. The problem is that neither
``conservative'' nor ``judicial activism'' are terms that are easy to
define. I want to spend the bulk of my space here exploring the
different things that we might mean by ``judicial activism,'' in hopes
of helping the participants in this debate avoid talking past one
another. My conclusion is that we are unlikely to come up with a
consensus definition of what judicial behavior is ``activist'' and what
is not. Most of the time, participants in both academic and political
debates use ``judicial activism'' as a convenient shorthand for
judicial decisions they don't like. For that reason, the term may not
be that useful in discussions about what sort of judges we want.
---------------------------------------------------------------------------
\5\ See, e.g., Peter M. Shane, Federalism's ``Old Deal'': What's
Right and Wrong with Conservative Judicial Activism, 45 VILL. L. REV.
201 (2000). This sort of criticism has been going on for over half a
decade. See, e.g., Linda Greenhouse, Farewell to the Old Order in the
Court: The Right Goes Activist and the Center is a void, N.Y. TIMES,
July 2, 1995, Sec. 4 (Week in Review), at 1.
---------------------------------------------------------------------------
That conclusion has two implications, I think, for the Senate's
role in helping to decide who shall sit on the federal bench. First,
the Senate should take charges that the federal courts are currently in
a uniquely ``activist'' phase--and that this ``new'' development
warrants a particularly searching review of Republican nominees for the
bench--with a grain of salt. The activism of the decisions coming from
the federal courts these days is largely in the eye of the beholder;
moreover, those decisions actually point in a variety of political
directions.
Second, if we cannot distinguish criticisms of ``judicial
activism'' from disagreements on the merits of particular cases, there
is probably no way to avoid exploring the substance of particular legal
issues in confirmation hearings. Because ``activism'' and ``restraint''
come in so many guises, particular nominees should not be rejected out
of hand simply because their beliefs or prior positions may fit one or
more definitions of ``activism'' on particular issues. The same
position, after all, may plausibly indicate ``restraint'' when viewed
from another angle. The important question is whether the nominee's
views make sense on the merits.
I. What is ``Judicial Activism''?
Debates about the law frequently involve charges of ``judicial
activism,'' but those charges are rarely accompanied by any attempt to
define the term with any sort of precision. There's a reason for that:
It's awfully hard to do. I want to start with three different
definitions of ``judicial activism,'' each of which has some intuitive
appeal:
striking down laws
refusing to adhere to precedent
straying from the text and original intent of the
Constitution
The first of these--a court's willingness to strike down laws on
constitutional grounds--is frequently used as a measure of
``activism,'' probably because it is the easiest to measure
empirically. And yet it is not hard to come up with examples where this
definition makes little sense. Consider last year's decision in
Dickerson v. United States.\6\ Dickerson involved the constitutionality
of 18 U.S.C. Sec. 3501, a federal statute enacted in the wake of the
Miranda decision that required federal courts to admit confessions into
evidence if they were ``voluntary,'' based on the sort of totality-of-
the-circumstances inquiry that Miranda had eschewed. The statute had
lain defunct for 30 years, ignored by the Justice Department due to
doubts about its constitutionality, until the Fourth Circuit invoked it
on their own motion and forced the issue. The Supreme Court held the
statute unconstitutional in Dickerson, and yet there were no cries of
judicial activism; indeed, one suspects that the Court would have been
accused of being activist if it had not struck the statute, for
refusing to adhere to its 34-year-old precedent in Miranda. The fact
that Miranda itself was considered an activist decision only heightens
the confusion.
---------------------------------------------------------------------------
\6\ 530 U.S. 428 (2000).
---------------------------------------------------------------------------
In other situations this measure is simply unhelpful. In this
term's Good News Club decision,\7\ for example, the Court struck down a
New York public school's policy of excluding religious groups from
using school buildings after hours, despite the fact that secular
groups were allowed to do so. The School's justification for the
policy, however, was that it was necessary to prevent an Establishment
Clause violation. So which result is activist: Striking down the
policy, as the Court did, on free speech grounds, or upholding the
policy on the ground that failing to have such a policy would itself be
unconstitutional under the Establishment Clause? \8\ Each possible
holding would involve declaring that a particular public policy (either
inclusion or exclusion of believers) is unconstitutional.
---------------------------------------------------------------------------
\7\ Good News Club v. Milford Central School, No. 99-2036 (June 11,
2001).
\8\ The same situation was presented in Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U.S. 819 (1995). In both cases, the Court
could have avoided both alternatives by refusing to find that the
school policy discriminated against religious viewpoints--thereby
avoiding the need to find an Establishment Clause interest to support
the policy. But to my mind, the argument that there was no viewpoint
discrimination in the cases was far less plausible than the claim that
the alternative to the school's policy--allowing religious worship on
school property--presented an Establishment Clause problem.
---------------------------------------------------------------------------
For a more familiar example, consider a decision by the current
Court to overrule Roe v. Wade \9\ and Planned Parenthood v. Casey.\10\
Surely such a decision would be criticized by supporters of those
decisions as activist; in fact, fear of such criticism seems to have
been a powerful part of the Court's stare decisis analysis in Casey.
But it was Roe and Casey that struck down legislative acts; a decision
overruling those decisions would amount to a refusal to invalidate
legislative restrictions on the right to an abortion. This example
points toward the second intuitive definition of judicial activism--a
refusal to follow settled precedent--and demonstrates how it may
conflict with the first definition. Dickerson is another example of
such conflict; the Court's adherence to the settled Miranda precedent
required it to invalidate an Act of Congress.\11\ On the other side of
the coin, several members of the current Court have refused to adhere
to the Court's recent precedents on state sovereign immunity, precisely
because the dissenters viewed those precedents as activist
decisions.\12\ In all these areas, then, both sides can be plausibly
charged with ``judicial activism,'' depending on which definition one
uses.
---------------------------------------------------------------------------
\9\ 410 U.S. 113 (1973) (striking down Texas law prohibiting
abortion).
\10\ 505 U.S. 833 (1992) (refusing to overrule Roe).
\11\ See also Texas v. Johnson, 491 U.S. 397 (adhering to settled
First Amendment precedent and striking down Texas's flag desecration
statute). Once Johnson itself was on the books, that precedent in turn
required the Court to invalidate a federal flag--burning statute in
United States v. Eichman, 496 U.S. 310 (1990).
\12\ See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 98 (2000)
(Stevens, J., dissenting) (``The kind of judicial activism manifested
in cases like Seminole Tribe represents such a radical departure from
the proper role of this Court that it should be opposed whenever the
opportunity arises.'').
---------------------------------------------------------------------------
What about the third definition: refusal to adhere to the text and
original understanding of the Constitution? This is also a frequently
used indicator of ``activism,'' and yet it may radically conflict with
the other two that I have discussed. For example, Justice Thomas has
recently argued that the Constitution's text and the original
understanding of its structure would require both a dramatically
narrower reading of the federal Commerce power than current doctrine
provides for,\13\ as well as substantially stricter limits on
Congress's ability to delegate authority to federal administrative
agencies.\14\ It is difficult to dispute the Justice's history, yet I
think it is fair to say that most academic observers would see adoption
of Justice Thomas's views as judicial activism of the most radical
kind.\15\ The reason is that limiting the Commerce Clause to regulation
of buying and selling (as opposed to manufacturing, agriculture, and
all other forms of economic activity) or outlawing the delegation of
legislative power would not only require overruling at least 70 years
of judicial precedent, but would also throw open to constitutional
question a substantial portion of the U.S. Code. Once again, then, each
side of this debate can plausibly call the other ``activist.'' Justice
Thomas may charge his critics with ignoring the text and history of the
Constitution; the critics can point to the disruptive consequences of a
return to the original understanding.
---------------------------------------------------------------------------
\13\ United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J.,
concurring).
\14\ Whitman v. American Trucking Assn's, 121 S. Ct. 903, 919
(2001) (Thomas, J., concurring).
\15\ In fairness, Justice Thomas himself has recognized the radical
reshaping of present doctrine that adoption of his views might require,
and for that reason has suggested only that the Court should consider
the issue in a proper case.
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I want to consider one final kind of ``activism'' that has more to
do with the way the courts decide cases than with the substance of the
decisions they reach. The idea is well captured by Professor Cass
Sunstein's distinction between judicial ``minimalism'' and
``maximalism.''\16\ A minimalist judge decides cases narrowly, leaving
as much as possible undecided for consideration in the next case. A
maximalist judge, on the other hand, announces sweeping rules in each
case, reaching out to decide issues that could have been avoided or put
off for another day.\17\ McCulloch v. Maryland \18\ and Roe v. Wade
were maximalist decisions, announcing sweeping principles all at once;
the Court's decision five years ago in Denver Area Telecommunications
Consortium v. FCC,\19\ in which the Court refused to state categorical
rules to govern public- and leased-access cable channels, preferring to
proceed on a case-by-case basis in the face of a rapidly evolving
technological and regulatory environment, is a good example of
minimalism.
---------------------------------------------------------------------------
\16\ See Cass R. Sunstein, Foreword: Leaving Things Undecided, 110
HARV. L. REV. 6 (1996); CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL
MINIMALISM ON THE SUPREME COURT (1999).
\17\ I am speaking here primarily of a judge's approach to defining
the content of constitutional rights and limitations. Similar issues of
``activism'' arise on the remedial side, when the judge has to devise
ways to enforce the Constitution as he has interpreted it.
\18\ 17 U.S. (4 Wheat.) 316 (1819).
\19\ 518 U.S. 727 (1996).
---------------------------------------------------------------------------
When we call the Court ``activist'' because it ``reached out'' to
decide an issue not strictly before it, or announced a principle
broader than the case required, or tried to definitively settle an
issue before society was ready for it to be settled, we are complaining
about judicial maximalism. But maximalism has its own problems as a
definition of judicial activism. For example, as Professor Sunstein
points out, both United States v. Lopez,\20\ invalidating the federal
Gun Free School Zones Act on Commerce Clause grounds, and Romer v.
Evans,\21\ striking down Colorado's anti-gay amendment to its state
constitution, were extremely narrow decisions. Nonetheless, both
decisions are frequently cited as instances of judicial activism on the
grounds that they invalidated legislative acts, departed from
precedent, or contravened the Constitution's text and history.\22\
(These two decisions illustrate, moreover, that the current Court's
``activism'' may point in both politically ``conservative'' and
``liberal'' directions.\23\)
---------------------------------------------------------------------------
\20\ 514 U.S. 549 (1995).
\21\ 517 U.S. 620 (1996).
\22\ See, e.g., Donald H. Zeigler, The New Activist Court, 45 Am.
U. L. REV. 1367, 1389 (1996) (``United States v. Lopez is another
striking example of judicial activism.''); Louis Michael Seidman,
Romer's Radicalism: The Unexpected Revival of Warren Court Activism,
1996 SUP. CT. REv. 67 (arguing that the Romer opinion ``recaptures the
moral drama and ambiguity of Warren Court activism years after the
culture had seemingly discarded it'').
\23\ Other examples of politically ``liberal'' decisions
invalidating public policies on constitutional grounds by the current
Court are not hard to find. See, e.g., Legal Services Corp. v.
Velazquez, 531 U.S. 533 (2001) (striking down federal limitations on
ability of Legal Services program grantees to challenge welfare reform
policies); Stenberg v. Carhart, 530 U.S. 914 (2000) (invalidating state
ban on partial birth abortions); United States v. Playboy Entertainment
Group, 529 U.S. 803 (2000) (striking down federal statute requiring
scrambling of sexualy-explicit programming); Saenz v. Roe, 526 U.S. 489
(1999) (striking down California durational residence requirement for
public benefits under the Privileges and Immunities Clause); Reno v.
ACLU, 521 U.S. 844 (1997) (striking down the federal Communications
Decency Act limiting children's access to indecent material on the
internet); United States v. Virginia, 518 U.S. 515 (1996) (striking
down single-sex policy at Virginia Military Institute). One could go on
and on with this list.
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In the end, it's hard to escape the conclusion that ``judicial
activism'' is a lot like Justice Stewart's famous definition of
obscenity: We know it when we see it.\24\ There was, of course, an
element of truth to Justice Stewart's observation; it's notoriously
hard to define obscenity in any precise way, and yet most of us would
agree that, practically speaking, we can identify many or even most
instances of obscenity when we encounter them. The same is true here:
The term ``judicial activism'' captures the important truth that there
is a point at which judging shades over into politics, and it's
probably easier to agree on examples than on definitions.
---------------------------------------------------------------------------
\24\ See Jacobellis v. Ohio, 378 U.S. 184, 197 (1954) (Stewart, J.,
concurring). That definition, of course, is itself frequently cited as
an instance of judicial activism in the sense of a judge reading his
own values into the Constitution.
---------------------------------------------------------------------------
The problem is that, because the definitions of judicial activism
are so manipulable, it's easy to cry ``activism'' whenever one simply
disagrees with how a court has interpreted and applied the law. My own
view is that ``activism'' has become an epithet with very little
substantive comment, and it is thrown about as a shorthand way of
criticizing decisions with which one disagrees on the merits. As
Justice Ginsburg observed at her own confirmation hearings, judicial
activism is ``a label too often pressed into service by critics of
court results rather than the legitimacy of court decisions.'' \25\
This is not to deny that the disagreements underlying a claim of
``activism'' may be quite important; the point is simply that the
reference to ``activism'' itself adds little of substance to that
disagreement. Better, I think, to cut straight to the issues of
substantive disagreement. Court decisions should be evaluated on their
merits, and discussions of whether they are activist or not seem likely
to be relatively unhelpful in that discussion.
---------------------------------------------------------------------------
\25\ Quoted in Ziegler, supra note 22, at 1367-68.
---------------------------------------------------------------------------
II. The Role of the Senate
I am not a scholar of the judicial confirmation process, and others
can no doubt provide more informed guidance on, for example, the
original understanding of the Senate's role. The observations I have
just made, however, do suggest two points concerning that role:
First, arguments by scholars on the Left that the Rehnquist Court's
``conservative judicial activism'' somehow justifies a uniquely non-
deferential role for the Senate in the confirmation process seem
misplaced.\26\ It is impossible to say that the present Court is
uniquely ``activist'' without some agreed definition of what that term
means, and agreement on that issue is hard to come by. Moreover, the
Court has decided any number of cases which meet one or more
definitions of judicial activism but which point in politically
``liberal'' directions--last term's invalidation of a state ban on
partial-birth abortions and 1997's rejection of the federal
Communications Decency Act being only two of the most prominent
examples.\27\
---------------------------------------------------------------------------
\26\ See, e.g., Cass R. Sunstein, Tilting the Scales Rightward, The
NEW YORK TIMES, April 26, 2001, at A23.
\27\ See Stenberg v. Carhart, 530 U.S. 914 (2000); Reno v. ACLU,
521 U.S. 844 (1997), as well as the cases cited in note 23, supra. Even
in the area of criminal procedure--a hallmark of Warren Court
activism--the Rehnquist Court has hardly led a monolithic assault on
the rights of criminal defendants. See, e.g., Kyllo v. United States,
No. 998508, 2001 U.S. LEXIS 4487 (June 11, 2001) (holding that police
use of thermal imaging technology to detect criminal activities inside
a home without entering it amounted to a ``search'' under the Fourth
Amendment); Penry v. Johnson, No. 00-6677, 2001 U.S. LEXIS 4309 (June
4, 2001) (overturning death sentence because jury was improperly
instructed on mitigating factor of mental retardation); Williams v.
Taylor, 529 U.S. 362 (2000) (upholding habeas corpus petitioner's Sixth
Amendment claim of ineffective assistance of counsel).
---------------------------------------------------------------------------
Second, there is likely to be no escape from a substantive inquiry
into a nominee's views on particular legal issues. It is tempting, of
course, to try to compromise between offering the President a blank
check, on the one hand, and contentious hearings on particularly
divisive issues, on the other, by avoiding legal substance and simply
trying to weed out the ``activists.'' No definition of ``activism,''
unfortunately, is sufficiently persuasive to bear the weight of such an
inquiry. It is better to forthrightly discuss the merits of legal
issues than to mask such debates by unilluminating charges and
countercharges of ``activism.''
This is not to say that there is no such thing as ``judicial
activism''--in other words, that the so-called problem of activism is
not something that we need to worry about. Of course it is. There are
crucial differences between judging and political decisionmaking, and
when judges forget that fact they may usurp powers more properly left
to the People's elected representatives. The problem, rather, is that
such usurpation may take any of the forms I have discussed striking
down laws, overruling precedent, departing from text and history,
deciding cases too broadly-and that on the other hand many decisions
that take these sorts of actions are not ``activist'' in any way worthy
of criticism. It is very difficult to identify instances of judicial
misbehavior without first evaluating whether a given decision was right
or wrong on the merits; only then can one ask whether it was so wrong
that the decision overstepped the bounds of the judicial role. That is
why it seems best to focus on the merits of legal issues rather than
treating ``activism'' as a separate issue.
I also do not mean to suggest that, in considering the substantive
views of nominees, the Senate should not be prepared to give some
degree of deference to the President's choices. The need for such
deference stems from the practical necessities imposed by divided
government: The system needs judges, and it will not get them if the
participants in the confirmation process cannot find some common ground
through compromise and mutual forbearance. In the end, the most
important task facing the Senate may be that of finding a way to de-
escalate from the highly politicized judicial confirmation process that
we have seen in the past decade and a half.
Regardless of the degree of leeway that the Senate is prepared to
give the President, however, Senators must still have some criterion
for evaluating individual nominees. On that issue, I have argued that
the important question is whether the nominee's views make sense on the
merits--not whether those views are ``activist'' or ``restrained.'' The
former issue, of course, may itself be a highly contentious one. But at
least it is the right question, and that is a start.
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