Earlier this year, the Georgetown Journal of Law & Public Policy hosted a symposium on “Hyper-Partisanship and the Law.” The journal editors graciously invited me to join an august panel on partisanship in the judiciary that included George Mason University Law School’s Todd Zywicki and the U.S. Chamber of Commerce’s Rachel Brand. (Brand ran the DOJ’s Office of Legal Policy, which is responsible for vetting and advising the president on judicial nominees, from 2005 to 2007.)
The symposium video isn’t available online, but the participants were invited to publish their presentations in this summer’s issue of the GJLPP. Zywicki has already blogged about his paper, “The Senate and Hyper-Partisanship: Would the Constitution Look Different if the Framers Had Known that Senators Would Be Elected in Partisan Elections?”
My (short) article is entitled “Big Government Causes Partisanship in Judicial Nominations.” Here’s an excerpt:
In 1962, Byron White’s hearing lasted 15 minutes and consisted of three questions. Can you imagine that happening now? Most district court nominees would take that deal. Is it because of TV and the media and the instant sound bite and the new media with the Internet and social networking and all the rest of it? Is it because the issues have gotten more ideologically divisive? I think the answer isn’t really any of these. It isn’t that there’s been a corruption of the confirmation process, the nomination process, presidential or senatorial rhetoric, or the use of filibusters. It’s a relatively new development but one that’s part and parcel of a much larger problem: constitutional corruption.
As government has grown, so have the laws and regulations over which the Court has power. The Court’s power has grown commensurate with the power of Congress, because all of a sudden it’s declaring what Congress can do with its great powers and what kind of new rights will be recognized. As we have gone down the wrong jurisprudential track since the New Deal, judges all of a sudden have more power behind them and the opportunity to really change the direction of public policy more than they ever did.
Read the whole thing (not yet in the final format). My presentation largely tracked some of the points Roger Pilon made in his seminal (and now decade-old) paper, “How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees.” You should read that too.
This morning I outlined the stakes of today’s seminal cloture vote on Goodwin’s Liu’s nomination to the Ninth Circuit. Well, now we have a result: cloture failed 52-43, with Senator Ben Nelson (D-NE) joining all voting Republicans except Lisa Murkowski (R-AK) against cloture. Three Republicans plus Max Baucus (D-MT) were absent, while Orrin Hatch (R-UT) voted present because of his previous strong position against filibusters.
This is the first judicial nominee filibustered since the Gang of 14 brokered an agreement on President Bush’s nominees in 2005, forestalling then-Senate Majority Leader Bill Frist’s use of the so-called nuclear option (changing Senate rules to eliminate the judicial filibuster). That agreement, to the extent it’s even still valid given the changed composition of the Senate (and with five of the 14 Gang members no longer in the Senate), allowed filibusters only in “extraordinary circumstances,” leaving that term undefined.
And so we may have just have witnessed the re-ignition of the war over judicial nominees. Stay tuned as to whether today’s vote will come to signify the “Water-Liu”—h/t Walter Olson—for one party or another, or for our judiciary.
Senate debate on the health care reconciliation bill forced Democrats to postpone yesterday’s hearing for Goodwin Liu, President Obama’s controversial nominee to the Ninth Circuit (which covers the western states). Senate Judiciary Committee chairman Patrick Leahy accused Republicans of “exploiting parliamentary tactics and Senate Rules” – GOP senators have stopped consenting to afternoon hearings for the duration of the health care debate – to delay Liu’s appointment “at the expense of American justice.”
Nothing could be farther from the truth. Despite the postponement, Liu’s confirmation is proceeding at breakneck speed. His hearing was scheduled only 28 days after his nomination, while the average Obama appointee waited 48 days for a hearing and the average Bush appointee waited 135 days. And Senate Democrats themselves cancelled all hearings Tuesday afternoon so they could attend the ObamaCare signing ceremony at the White House.
Moreover, Leahy’s intent is not so much to urge the timely vetting of judicial nominees, but to further the government’s Blitzkrieg takeover of civil society – before the Democrats’ congressional majorities turn into pumpkins this November. As Liu stated in a January interview with NPR, “now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.”
According to Liu, that progressive vision includes constitutional rights to health care, education, housing, and welfare payments. Liu states outright that “rights to government assistance” are “essential to liberty.” He defends this contradiction by claiming that “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.”
Liu’s hearing before the Senate Judiciary Committee thus concerns much more than a seat on a federal appellate court (just when you thought the Ninth Circuit couldn’t get more radical). The Washington Post has noted that the hearing might serve as a test of Goodwin Liu as a Supreme Court nominee. With so much potentially at stake, postponing Liu’s hearing to ensure it receives the Senate’s undivided attention – and any other legal method of stopping or delaying by even one day his ascension to the bench – serves “American justice” rather than betraying it.
Today the Senate Judiciary Committee will hold a hearing for the nomination of 39-year-old Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. Liu’s confirmation would compromise the judiciary’s check on legislative overreach and push the courts not only to ratify such constitutional abominations as the individual health insurance mandate but to establish socialized health care as a legal mandate itself.
Yesterday Cato legal associate Evan Turgeon and I published an op-ed on the Liu nomination in the Daily Caller. Here are some highlights:
While Liu purports to develop an original approach [to constitutional interpretation], his nuanced methodology fails to generate a novel result. He may “suggest a more cautious and discriminating judicial role than one that is guided by a comprehensive moral theory,” but it is impossible to imagine a case in which Liu would reach a different outcome than a judge employing the (disfavored) “Living Constitution” analysis. And this is not surprising, given that the stated purpose of Liu’s scholarship is to establish legal justifications for “rights” foreign to the Enlightenment tradition on which our republic rests — those that make demands on others (unlike, say, the right to free speech, which makes no demands on anyone).
…Even more dangerously, Liu’s approach flouts the Constitution’s very purpose: protecting individual rights by limiting government power. As the branch responsible for interpreting the Constitution, the judiciary must defend citizens’ inalienable rights, such as the rights to life, liberty, and property, from infringement by government actors. Liu’s approach turns that role on its head. He views the judiciary not as a safeguard against state tyranny, but as a rubber stamp for any legislation that reflects popular opinion. And it’s a one-way ratchet: Liu would likely rule that the next Congress could not repeal Obamacare because it is precisely the kind of “landmark legislation” — to borrow progressive Yale law professor Bruce Ackerman’s phrase — that cannot be undone.
As a member of the ACLU and chairman of the American Constitution Society, it is no secret what kind of rights Liu would find justified by “collective values.” Liu lists “education, shelter, subsistence, health care and the like, or to the money these things cost” as examples of affirmative rights he would seek to establish in law — to constitutionalize beyond a future legislature’s reach.
Read the whole thing. Also read Ed Whelan’s series of posts on Liu at NRO’s Bench Memos blog. (I don’t agree with Ed on everything, but he’s doing a workmanlike job on this important nomination, as he did on Harold Koh.)
And if all the above isn’t enough, here’s Liu in the 2006 Yale Law Journal:
On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.
As Evan and I wrote:
We don’t expect a president of either party to appoint judges who adhere 100 percent to the Cato line — though that would be nice — so we do not object to every judicial nominee whose philosophy differs from ours.
Goodwin Liu’s nomination, however, is different. By far the most extreme of Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth by radically expanding — and constitutionalizing — welfare “rights.”
The Senate needs to understand who it’s dealing with here.
The increase in chatter in Washington about Justice Souter’s replacement is a clear signal that pundits have gotten about as much mileage as they can over speculation and want to have an actual nominee to dissect.
Even though the administration has been evaluating candidates since the inauguration (and before), there’s no real reason for President Obama to announce a replacement before the Court’s term ends in late June.
The only limiting factor is that the president needs to have a new justice in place by the time the Court resumes hearing cases in October. So, clearly, this politically savvy president will be weighing his legislative priorities against the relative amount of political capital he’ll have to spend to confirm possible nominees. Similarly, Republicans seem to be keeping their powder dry, hopefully in preparation for a serious public debate of competing judicial philosophies and theories of constitutional interpretation.
As far as handicapping goes, the smart money is now on Solicitor General Elena Kagan—because she was recently confirmed by a comfortable margin, has significant support in the conservative legal establishment, and is young (49)—but don’t count out either Judge Diane Wood or Judge Sonia Sotomayor. Or dark horse candidates like Senator Claire McCaskill. It’s really any woman’s ballgame at this point, and will be until Barack Obama—who famously holds his cards close to his vest—announces his pick, on his time.
For a geometric discussion (X-axis = desirable criteria; Y-axis = confirmability) of the above political calculus, see here.
With no hard news to report and the Supreme Court not in session — they’ll release opinions in the remaining cases on successive Mondays (plus the Tuesday after Memorial Day) beginning May 18 — Washington is abuzz with speculation over potential high court nominees. While Senator Orrin Hatch earlier this week said he expected an announcement this week, the White House is far more likely to take its time vetting candidates, with no real pressure to announce a pick until the Court recesses at the end of June.
Nobody other than the president himself really knows who’s favored, but ABC News’s Jan Crawford Greenburg — who will be contributing to this year’s Cato Supreme Court Review and speaking at our Constitution Day conference September 17 — has some fascinating scuttlebutt:
No clear favorite has emerged, but the pick has prompted an internal struggle between legal and political officials within the administration, sources say.
Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an historic pick as the Court’s first Hispanic justice.
Obama, the thinking goes, could score huge points with Hispanics, an important and increasingly powerful constituency, by nominating Sotomayor or another Latino. Sotomayor has a compelling life story, moving from the projects to the nation’s most elite educational institutions and then onto the federal bench.
But Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer — something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee, sources close to the process said. Moreover, she’s also been criticized for abrasiveness — which could be problematic on the high court.
Legal officials in the Administration want Obama to tap a candidate who would be a more obvious force on the Court, bringing both intellectual prowess and a proven ability to build coalitions. They favor either Kagan or Wood — prospects who could be considered judicial rock stars capable of going toe to toe with Scalia and Roberts.
I would expect Senators Claire McCaskill (D-MO) and/or Amy Klobuchar (D-MN) also to be on the shortlist — more likely the former because she was one of Obama’s first supporters in the Senate (and whose replacement would be appointed by a Democratic governor). Senators have historically been fairly easy to confirm because of the courtesy extended to them by their erstwhile colleagues. Still, we haven’t had such a nominee — or anyone other than sitting appellate judges — in the poisonous post-Bork world, so all bets are off.
Were it not for Ricci v. DeStefano, Sotomayor would be a shoe-in on the simple formula of Princeton+Yale Law+Second Circuit+Hispanic woman. Now, and also for the reasons Jan cites, that is looking less likely. I still favor Wood because she has a proven judicial temperament, sterling qualifications in technical fields like antitrust and trade regulation, and would be no worse — and quite possibly better — than the other contenders on constitutional issues. If I were putting money on it, however, I would have to go with Kagan precisely because she was so recently vetted and confirmed (61-31, with Arlen Specter voting ”no” under Scottish law because he felt she hadn’t sufficiently answered his questions).