The editors of The New Republic — a magazine I admire and have been reading for 20 years (thanks to a subscription gift from my “Roosevelt was too conservative” grandmother who was horrified by what she saw as my teenage Reaganite tendencies) — have come out against Judge Alito. In so doing, the editors in “Against Alito” invoke the magazine’s “consistent and long-standing judicial philosophy”:
Ever since its founding in the Progressive era, this magazine has championed bipartisan judicial restraint and urged liberal and conservative justices to practice it consistently. Under the guidance of editors like Felix Frankfurter, Learned Hand, and Alexander Bickel, we have argued that judges should play a modest role in U.S. democracy, generally deferring to the judgments of elected legislators and striking down laws only when the constitutional arguments for doing so are clear and convincing.
The piece is, as one would expect, entirely free of hysterical or uncharitable rhetoric; it is measured and reasonable. The editors concede that Judge Alito “is far from the most activist and intemperate candidate that Bush could have nominated” and that his “intellectual ability has been obvious at every stage of his career.”
That said, I’ll skip past what I regard as the editors’ unhelpful digs at Alito’s alleged “inflexible originalism” or their (to me) unconvincing attempt to draw a line between Judge Alito and Chief Justice Roberts, based on the latter’s statement (one with which Judge Alito would, I am confident, happily agree) that (in TNR’s words) “he does not have an overarching judicial ideology that he wants to impose on every case.” And, I was surprised that the editors seemed to put so much weight on Alito’s “troub[ling]” “vote to strike down the federal ban on the possession of machine guns, on the grounds that Congress had not offered convincing evidence of a connection between machine-gun possession and interstate commerce,” without addressing the question whether, given Lopez, reasonable and non-ideological judges could have (should have?) concluded that the Court’s cases weighed in favor of such a vote.
For me, the editorial raised (at least) two questions: First, do we think the following statement is correct:
If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now.
I’m not sure. Justices Breyer and Ginsburg were confirmed overwhelmingly, despite their progressive or left-leaning views and records, after the Bork and Thomas hearings. Would the editors think there was something wrong with Republican senators, in the future, voting against nominees like Breyer and Ginsburg?
My second question is about “bipartisan judicial restraint.” It seems to me that, as described by the editors, the approach has much to commend it (assuming that it is applied in school-voucher and abortion-regulation cases just as in machine-gun-possession and campaign-finance cases). But is there a reason why we should be more troubled by the Court’s decision not to “defer” to Congress, in cases involving enumerated-powers or structural-federalism questions, than by a decision (one that the editors fear Alito would support) not to defer to the President in cases involving inherent-executive-authority questions? Again, the editors put, at the heart of “bipartisan judicial restraint,” a policy of “generally deferring to the judgments of elected legislators and striking down laws only when the constitutional arguments for doing so are clear and convincing.” Should an advocate of “bipartisan judicial restraint” support similar deference to the Executive? If not, why not?
Posted by Rick Garnett on January 22, 2006 at 07:40 PM
Comments
As to the abortion case, therefore O’Connor is quite “left.” I think not. I don’t think requiring warrantless urine samples from student athletes is THAT liberal, nor surrendering half interests in cars that your husband w/o your knowledge had sex with a prostitute in, or throwing grandma out of public housing because of acts she “should have” known etc.
I’m with G/C on why G/B glided by and New Republic (at least in the email sent to me linking to the editorials) furthered the “Republicans played nice with Clinton picks” spin w/o supplying the important context. The Miers rejection (who was “nominated” by Hatch’s opposite number … Harry Reid) also underlines how this time it’s different.
One would hope that in ’08 — even if its a McCain sort — we will have a President more willing to respect the minority party in Supreme Court nominations etc. thus lowing the temperture. The idea that no one is to be blamed but the system is simply untrue. Context matters.
Posted by: Joe | Jan 25, 2006 8:36:23 PM
Well, Rick, you have chosen not to address my criticism on the substance, but perhaps I invited that with my inartfully worded comment — although I do not doubt that you have not bought into the RBG-demonization (with obvious anti-semitic undertones, [see Buchanan’s constant reference to the “Ginsburg Court” or Kate O’Beirne’s new book cover]) which is quite popular on the right, I think that the right’s constant use of her as the bogeyman has influenced many whether consciously or not.
As to your question that you are “unable to see why [Alito] should not get, as [RBG] did, 95+ votes,” I would again note that you cannot seriously be asking that question. The explanation is quite obvious, when viewed from a political, rather than scholarly, perspective (which is what TNR’s line about future confirmation fights was about)> Ginsburg, like Breyer, was nominated after Orin Hatch, then ranking minority member of Judiciary Committee recommended her. Thus, her nomination represented a good faith effort by the President of the United States to work with the minority (who at the time was relentlessly attacking him personally) to find a consensus candidate. Alito was nominated as an essential “f— you” to the Democrats in a not so subtle effort to rile up the President’s base to give them the “fight” that they were explicitly asking for. Under such circumstances, it is clear why 95 plus votes cannot be garnered for Alito — on the simple reason that the President is uninterested in seeking the minority’s advice (which I do not say he is required to do), the Democrats are fully justified in voting nay.
Now, you may disagree about who “started it”, but the point of TNR’s statement about future fights was that the atmosphere re judicial nominations has become poisoned. Your not-so-subtle attempt to make it seem like the Republicans have always been willing to play nice falls on very deaf ears in light of the politics of Alito’s nomination. This should be clear to anyone following the confirmation fights over the last ten years.
Posted by: Greedy Clerk | Jan 23, 2006 9:00:26 PM
The argument that Ginsburg is “barely left of center,” while Scalia is “far to the right,” seems to always rest on the idea that “well, she’s not as left as Brennan/Marshall.” This suffers a few flaws, which I have rarely seen hashed out.
First, it sets the Warren Court as the baseline, uses Brennan as the most left, so RBG looks moderate. Swell. But WHY is that the baseline? Why can’t I just pine for The Four Horsemen, and just as legitimately say that Scalia is actually a flaming lefty, relatively, because he accepts all sorts of Commerce Clause stuff (Raich?) that old Van Devanter would have never OK’d (or good old Peckham, the Lochner author). Thus, Scalia is slightly left, Ginsburg very left, and Brennan mega-left. Why is that not equally valid? Well, one might say that the spectrum is defined by the current court. No, wait, that puts RBG on left, and the Brennan shadow has no more “present” points than the Van Devanter shadow. Another idea might be that the anti-New-Dealers represent a long-lost position that is no longer viable and is off-the-table for measuring a spectrum. OK, so how many years have to pass before I can say that about Brennan, too? If his vision really has no followers on the Court, then he should be as much a dead letter as Van Devanter. (Or, if his influence perseveres in a way that the others don’t, then that seems to admit that current Js are still doing a Brennan, perhaps at a lesser speec [as noted further below]). Also, if RBG’s moderation is relative to Marshall, does that mean that if Janice Rogers Brown gets on the Court, Scalia will become a “moderate,” because JRB would be the Right’s answer to Brennan/Marshall?
Second, even accepting Brennan/Marshall as the baseline, I think we need to distinguish between the ideas of “swings” to the “left or right” in absolute terms, versus the idea of how fast the flight to the left — and that reveals our “moderate lefties” to be more left than some say. If you measure the hot buttons of culture, e.g., abortion, gay issues, whatever, there is no plausible denial of the fact that the Court, rightly or wrongly, has marched to the “left.” Maybe Ginsburg academically admitted that Roe itself was weak, but she and Breyer have plowed forward to the right to late-term abortion, in Stenberg v. Carhart. See also Lawrence, Romer, etc. Maybe someone can say that a Court of 5 Brennans would, by now, have been far past Lawrence and have declared the gay-marriage right, and would have gone passed Carhart’s late-term and declared the right to abort until Kindergarten. Whatever. But that’s just saying that we now drift too slowly left, as opposed to better speed under Brennan.
I admit, one can point to some areas, esp. crim law and esp. death penalty, in which RBG and Breyer (and Souter) seem to be objectively more “conservative” than Brennan/Marshall, but it’s awfully selective to not even acknowledge the continued march to the left on such hot buttons as Lawrence and Roe/Carhart.
The bottom line is that I can see why RBG or Breyer seems tempermentally more moderate, but when you look at the votes, esp. on the social issues, the description as “moderate” is a joke.
Oh, and on another tangent — the MSM has fully bought into the false baseline and into the “RBG as moderate” narrative, as the NYT et al. frequently use the terms “moderate liberal” or “more liberal,” as opposed to plain “conservative,” if not “right” or “right-wing.”
Again, I ask — if Carhart is moderate, then what is “left”?
Posted by: just me | Jan 23, 2006 7:23:25 PM
I certainly have not “bought into” — “easily” or otherwise — the anti-semitic, “jew woman from the ACLU” line on Justice Ginsburg, whom I respect. I just think she is fairly characterized as a “liberal.”
Posted by: Rick Garnett | Jan 23, 2006 3:27:23 PM
Rick, the statement that Alito is as much to the right as RBG is to the left is very hard to take seriously. Alito is about as conservative as the most conservative Justice (excluding Thomas who I think operates in a different sphere), i.e. Scalia. Scalia is about as conservative as they get. RBG is very much a moderate, who breaks left when in doubt. She is nowhere close to the model of Justices who would be Scalia’s or Alito’s opposites, i.e., Brennan, Marshall, Douglas, etc.
Much of the talk of RBG as a “liberal” is from the right-wing who use her semitic looks and very Jewish name as a sort of “liberal bogeywoman” who fits the stereotype of exactly what the right wing imagines when they think of “activist judges” — a jew woman from the ACLU. She has not been that type of Judge, however. And I am frankly surprised to see you buying so easily into that. An example which ought to prove the point: Brennan, Marshall, Douglas, even Blackmun — they would never have joined in summary reversals in death penalty cases, or in habeas cases more generally. Yet RBG has no problem with this. On the other hand, Scalia, Alito — we know they would never buy into the wholesale chastising of a judicial circuit that was too freely imposing the death penalty. They just wouldn’t and we all know it.
Again, your post is hard to take seriously in light of that comment.
Posted by: Greedy Clerk | Jan 23, 2006 2:28:20 PM
Dan: Good point! Maybe that was next on RSA’s list. Or, maybe he figured that Ibn Sina and Ibn Rushd would know Latin, too. Best, R
Posted by: Rick Garnett | Jan 23, 2006 10:59:16 AM
Rick, odd that RSA didn’t pick up Arabic, then, since Maimonides’ most penetrating engagement with the ideas of other cultures is in the Guide for the Perplexed.
Posted by: Dan Markel | Jan 23, 2006 8:17:08 AM
Marty, I was hoping President Clinton would nominate RSA too (even though it would have cost me a job that I loved!). You might disagree, but I think RSA was more like Justice Scalia (with whom he was very close), in terms of approach and outlook, than like Justice Breyer. Like you say, he admired Justice Brennan, but was also shaped profoundly by Justice Black, I think. He was such a good man, and fascinating. My favorite story: When he was asked why he was studying Hebrew (in his 60s), he said it was because he already knew Latin, and he wanted to be sure he understood both sides of the conversation between Maimonides and Aquinas when he got to Heaven.
I guess I think that RBG is at least as far to the “left” as Judge Alito is to the “right” (recognizing, of course, that there’s no way to test this!), and so I remain unable to see why the latter should not get, as she did, 95+ votes.
Posted by: Rick Garnett | Jan 22, 2006 11:51:30 PM
I should add that I clerked on the First Circuit, and although I liked Justice Breyer, at the time of his nomination to the SCOTUS I thought he was going to be too haughty, too intellectual, too “wonkish” or technocratic. I am pleased to say that he has proven me largely wrong.
Posted by: Marty Lederman | Jan 22, 2006 10:18:09 PM
Rick would be much more able to speak to this. Justice Breyer is, I suspect, much more deferential to administrative actors and beauracracies, and skeptical of juries (and plaintiffs generally), than Justice Arnold would have been. See, e.g., his decisions on punitive damages. And my impression is that Justice Arnold would have followed more in the footsteps of Justice Brennan generally. But I agree that they’re not *that* far apart.
Posted by: Marty Lederman | Jan 22, 2006 10:15:37 PM
Marty,
Do you really see Richard Arnold as having been all that different ideologically from Justice Breyer? I clerk in Little Rock for the other Judge Arnold, and I have a tremendous amount of respect for his late brother. He would have been a fabulous justice, and I am sad Clinton decided not to nominate him. On the other hand, I don’t imagine him as a liberal fire brand staking out wild positions far to the left of Breyer.
Posted by: Nate Oman | Jan 22, 2006 10:03:25 PM
A couple of quick responses, Rick — not remotely intended to adequately address all the issues you raise.
1. Breyer and Ginsburg were (accurately) seen at the time as much more centrist, bureaucratic nominees than those Clinton was expected (by Republicans and Democrats alike) to nominate. I recall vividly that many of us on the Left were disappointed that after waiting an entire generation for Supreme Court nominations, the politics were such that we had to settle for RBG and SGB, both of whom were perfectly fine, but not at the top of our lists (in contrast to, for instance, your Judge, Rick, or some of RBG’s DC Circuit colleagues). (I’ll confess, however, that they have turned out better than I’d hoped, even if neither of them reminds me of Justice Brennan.)
2. How would the Right, and the Senate, react if the next Democratic President nominated persons who I would consider the Democratic/liberal equivalents of Roberts and Alito — say, folks such as Kathleen Sullivan and Pam Karlan (or Walter Dellinger and Marsha Berzon, if they were a decade younger)? I wouldn’t think there was anything *wrong* with Republican Senators voting against such candidates — and more to the point, I’d expect many would do so, and that the National Review and Wall Street Journal and Weekly Standard, etc., would strongly oppose them. Do you think otherwise? If so, perhaps I’m miscalculating the political pulse around here. (Wouldn’t be the first time.)
3. In the “inherent” Executive power cases, the statutes the President is violating were enacted by votes of overwhelming majorities of the Congress, and signed by the President. Unlike the New Republic, I don’t think that their democratic pedigree is necessarily a *sufficient* reason to uphold the laws — I simply think the article II arguments are wrong, and that the Court should rebuff the President because his claims are a profound threat to the checks and balances that prevent autocracy. But *if,* like TNR, deference to democratic lawmaking is one’s touchstone, then the President should lose the cases. (Did *anyone* vote for George Bush because he promised to waterboard and to violate FISA?)
Posted by: Marty Lederman | Jan 22, 2006 9:37:03 PM