Tabula Non Rasa
Glenn Greenwald has, somewhat provocatively, compared President Obama’s nomination of Elena Kagan to the Supreme Court to George W. Bush’s short-lived nomination of Harriet Miers. The idea is that Kagan hasn’t sufficiently proven that she has reliably liberal views and could wind up pulling the Court to the right. Jonathan Bernstein demurs:
Elena Kagan is not, of course, a blank slate. She’s nothing like Harriet Miers. Miers was, in political terms, a pure Bush creation; she had no political experience other than her work for George W. Bush. By contrast, Kagan worked (briefly) for the Senate Judiciary Committee; for the Clinton White House; and, of course, for the Obama White House…. In other words, Kagan has behaved exactly as one would expect a committed liberal to behave. That’s not a blank slate; that’s action which reveals her politics. Liberals who support her may not have extensive writings on which to judge her, but they do have her political actions. Conservatives, with Miers, had no similar record to consider.
Last year I read a long article of Kagan’s about presidential control of administrative agencies.1 My general take was that she had moderately pro-executive views which reflected the lived experience of someone who had worked in a contemporary Democratic administration. I remember that I was not entirely satisfied with her account, but also that there was not really anything that I found specifically objectionable. But certainly her scholarship was top-notch; and whatever the alleged paucity of her published work, it’s clear that, academically and intellectually, she’s no slouch.
So I agree with Bernstein: Kagan is not a blank slate. Guarded, canny, and at times maybe even opaque. But certainly not blank.
- The article was “Presidential Administration,” 114 Harv. L. Rev. 2245 (2001). [↩]
A Rotating Federal Judiciary?
Fixed terms for Supreme Court justices would likely violate Article III of the Constitution, which provides that all federal judges “shall hold their Offices during good Behaviour”—i.e., for life. No matter how generous we made the pension awaiting the judge at the end of the term, any proposal that forced judges out of their “Offices” by any process other than impeachment could not be instituted by statute. A constitutional amendment would be necessary.
But interesting proposals have been made to reform the judiciary and sidestep the constitutional roadblock. One is to create rotating terms among the federal appellate courts. Under such a proposal, circuit court judges would rotate up to the Supreme Court for a limited term (7-12 years, say), and then, when the term is up, they would rotate back to their “home” seat on the circuit court.
The validity of a rotating judiciary proposal turns on the constitutional meaning of “Office.” If it designates the general status of holding an Article III judgeship, the rotation proposal should be valid—as long as the judge holds an active position somewhere on the federal bench. If, on the other hand, “Office” designated a particular seat in a particular court, the proposal would be unconstitutional. But the latter interpretation would be completely at odds with our history. The earliest Supreme Court justices had to double as lower court judges, “riding circuit” in between terms of the Court.
Perhaps the better question is whether we’d solve any problems that way. One goal of judiciary reform might be to relieve some of the political pressure on the confirmation process. A rotation system could do that, because it would lower the stakes for Supreme Court nominations—making them more like, say, nominations to the Fed.
On the other hand, every appellate nominee would be the equivalent of a Supreme Court nominee. That could actually raise the already-high stakes for circuit court nominations. It’s hard to say if, all things considered, that outcome would be a desirable one. It might be, but it seems to me that, if the problem you want to address is the confirmation process, the first order of business should be Senate reform.
Life Tenure
Matthew Yglesias wants to do away with life tenure for Supreme Court justices:
the practice of giving justices lifetime appointments strikes me as deeply unsound. Concerns you might have about justices being unduly influenced by political or financial considerations could be easily met by giving justices a single, non-renewable term of 9 or 10 or 12 years plus a decent pension.
The problem with the life tenure system is that it allows the idiosyncrasies of the justices (and all federal judges to some degree) to trump institutional norms and enshrines those idiosyncrasies, potentially, for decades. On the other hand, long-serving justices bring a measure of stability and predictability to the Court, both of which are central to the credibility and legitimacy of the rule of law itself. It’s just that we sometimes get the wrong kind of stability and predictability—the kind that preserves bad law. (Though it’s often good, paradoxically, for the courts to preserve bad law—because it’s ultimately the legislature’s job to debug the legal system, and the more the legislature leaves debugging to the courts, the less accountable the legislature will be for failing to iron out kinks in the law.)
A judiciary that’s more committed to institutional consistency than to the ideological cult of the Court, is one that will comport better with the institutional roles of Congress and the president. Judiciary reform could do that, but the big and obvious problem is implementation. The fixed terms that Yglesias envisions are, on their face, patently unconstitutional. But there are ways to achieve judiciary reform without amending the constitution—but they’ll have to wait till tomorrow.
The Short Game
Matt Yglesias shares this, about what we should look for in the next Supreme Court Justice:
I was speaking to some progressive lawyers with experience in the relevant fields, and they emphasized to me that the key aspect in this regard isn’t exactly “persuasion” since federal judges are usually strong-minded and strong-willed people. It’s mastering a certain brand of legal craftsmanship where you can put together a written opinion that people who don’t necessarily share your overarching philosophy can sign on to. On a divided Supreme Court, that kind of skill is very important.
The other week I made a similar point about how the Justices probably don’t really persuade each other all that much. The relevant skill is more like accommodation than persuasion. Fine-grained argumentative craftsmanship is the key. And my bet is that anyone in serious consideration will have that trait, or will learn it right quick. Because if she doesn’t, she won’t get the other Justices to sign on to her opinions, and her opinions will not become the Opinions of the Court.
But that’s just the “short game.” There’s a long game on the Court, too, and I still think persuasiveness and cogency are important for reasons that go beyond the Court itself.
Visualizing Ideology
Via the Monkey Cage, a graph of the ideologies of Supreme Court Justices for your viewing pleasure:
Kangaroo (Hat) Court for Health Reform
Seasoned conservative jurist, Harvard law professor, and Reagan solicitor general Charles Fried told Fox News this week that he would eat a hat made of kangaroo skin if the Supreme Court strikes down the new health reform law. (H/t Igor Volsky). Fried repeatedly invoked the Court’s 2005 decision in Gonzales v. Raich (holding that the feds were authorized under the commerce clause to regulate intrastate activity, even non-economic activity, if necessary and proper to a comprehensive scheme of regulating interstate commerce), as the controlling precedent. Fried suggested that, because health insurance is an $854 billion industry, it is commerce and can be regulated.
As I’ve mentioned before, I’m skeptical that the commerce clause really provides a sound constitutional basis for the new law. Obviously insurance is commerce and, in general, can be regulated. But the legal question here—about the constitutionality of the individual mandate—is much narrower than that. The question is whether Congress may impose a tax penalty on people for failure to obtain health insurance. The size of the health insurance industry is not relevant to that question. What is relevant is whether the individual mandate is necessary and proper to the general scheme of federal regulation of insurance. The answer to that is certainly yes.
Even more narrowly, though, the Court should only have to decide whether Congress has a rational basis upon which to determine that the mandate is necessary to the overall scheme—not whether the mandate is in fact necessary to the scheme. And the answer to that should be, even more certainly and emphatically, yes.
But that doesn’t exhaust the issue. To be subject to regulation under the commerce clause, in my view, you must engage in some positive activity that is meaningfully related to the regulated commerce. And, as I see it, lacking insurance is not an activity; it’s a status. So the question, whether the commerce clause authorizes the individual mandate, is not really the slam dunk that it is often made out to be.
What is a slam dunk on the other hand, is the argument that Congress is authorized to impose the mandate under its taxing power. Just as your tax liability may vary according to whether you are married or not, have kids or not, rent a house or buy one, earn wages or capital gains, or whether you make early withdrawals from your 401(k) or wait till you retire, etc., under the ACA it will vary according to whether or not you are covered by adequate health insurance. Maybe that’s not exactly comparable to anything else in the tax code, but it doesn’t matter. The taxing power is not nearly as limited as the commerce power is. It is hardly limited at all. And that is what makes the case a slam dunk. And it is what makes the now 20-state challenge to the ACA an utterly frivolous exercise in political theater. And it is why Charles Fried will never have to eat his kangaroo-skin hat.
What Traits Should the Next Supreme Court Justice Have?
Picking the next member of the Supreme Court is not just a matter of putting a robe on someone who will reliably vote your way. It’s about getting someone so gifted with the power to animate ideas with relentless logic, crisp prose, and the occasional spark of je ne sais quois that she is able to convince everyone, everywhere, in all of history that she is right.
This takes extraordinary depth of knowledge and command of theory. By “theory” I just mean the ability to attend to the consistency of arguments and modes of argument across cases, issues, and areas of law. It is not always necessary or even possible to be entirely consistent—hence, the career of Justice O’Connor—but it is essential to evince command of the multi-layered logic of the law and to wield it deftly.
Rhetorical prowess is vital. Particularly, again, with respect to animating the logic of argument. It is not (or should not be) enough to state the case, state the law, and draw sound conclusions. The logic of an argument should be extracted, held up, and turned over and around in the light like a fine jewel.
At a second- or third-order level, I think relative youth and femaleness should be qualities of the next Supreme Court justice.
And lastly, one substantive point: the nominee should exhibit a healthy deference to legislative judgment.
In sum: knowledge, rhetorical prowess, youth, femaleness, deference to legislature.
Politician for the Court?
Contra Ezra Klein and Matt Yglesias, I doubt that a politician would be especially effective—in the way that Earl Warren (who had been Governor of California before becoming Chief Justice) was effective in his day—on today’s Court. The legal technicians on the Court today understand as well as Warren did the importance of crafting arguments to hold together majorities and persuade their colleagues however they can. Justice Stevens, the consummate career legal technician, mastered this art. But the truth is that there’s not a tremendous amount of successful persuasion going on at that level. These guys know what they think going in, for the most part. And the skills of a contemporary politician—horse-trading and fundraising?—are not only inapplicable in a judicial setting, they’re totally out of bounds.
I do think it’s right to be focussed on persuasiveness, but you have to consider the audience. That audience comprises for the most part other lawyers, including other judges, law professors, and even law students. It’s important to try to persuade all these groups—or as much of them as you can—because in the long haul, arguments about the meaning of the law are stretched out over decades of cases.
Does the Religion of the Justices Matter?
I’m not inclined to think that it makes any real difference whether there are any Protestants on the Supreme Court or not.
It was once considered important to maintain an even geographic distribution among the justices. There would be at least one southerner, westerner, midwesterner, etc. It so happens that there remains a reasonably even distribution, but no one thinks about it much.
I suppose everyone agrees that there’s a benefit to having justices from diverse backgrounds, legal and otherwise. But I think the “otherwise” part needs to have some visible relevance to the “legal” part to merit any serious concern.
Racial and ethnic minorities’ rights are and have been a common subject of important legal disputes—disputes that have had profound impact on the perceived legitimacy of the constitutional order. Same goes for women, whose underrepresentation on the Court has been even more stark. And then there is the final frontier of equal protection: sexual orientation.
Each of these are areas in which the makeup of the Court still carries some expressive significance. But diversity of experience can also be important along more mundane dimensions. It seems like a good idea to some litigators (civil and criminal) and some academics in the mix. And it is only natural that there be plenty of federal appellate judging experience, ideally from different circuits so as not to inflating the importance of particular circuits’ “specialty” areas—an example of the ways in which geographic diversity still matters. Experience in state courts or state government generally could provide some useful perspective. Even diversity of law school experiences could make a difference. A court packed with Ivy Leaguers might have a few blind spots they might not otherwise have if they worked alongside a colleague or two from other outstanding law schools.
But I’m really not sure that Protestant-Catholic diversity on the court has any jurisprudential relevance at all. There’s no enduring genre of constitutional dispute concerning the rights of Protestants vis-a-vis Catholics or vice versa. And while the difference may be profoundly important to the judges personally and individually, the actual effect of having no Protestants on the court may be the equivalent of having no one who is right-handed—unrepresentative of the general population, but in an ultimately irrelevant way.
Of course, there are some issues, like abortion, to which the justices’ religious views may be thought relevant. As this NYT story noted the other day, law professor Geoffrey Stone sparked a controversy by pointing to the Catholicism of the five-justice majority in Gonzales v. Carhart (2007) to explain their decision to uphold Congress’s ban on D&E or “partial-birth” abortion techniques. But Prof. Stone’s comment was just sensationalism. There is nothing uniquely Catholic about anti-choice crusaders. And there’s no reason to think that Justice Sotomayor, Catholic though she is, would have voted with the conservative majority. Furthermore, if the Carhart majority (Scalia, Kennedy, Thomas, Roberts, Alito) were truly under the sway of Catholic bias, you would expect to see the effects of that bias in death penalty cases as well as in abortion cases. But you don’t, generally, because it’s not Catholicism that frames their legal thinking—it’s ideological conservatism.
You can also make the point from the other direction: make a list of all the good qualities that Justice Stevens has brought to the Court and of all the ways his legacy within American law will be positive and enduring. The fact that he was for a time the Court’s only Protestant has no place on the list. It’s trivia.
In Praise of a Moderate Supreme Court
Matt Yglesias writes:
But as best I can tell, Barack Obama (and many other leading Democrats) don’t actually think that reviving old-school judicial liberalism would be a desirable outcome. That, rather than any political calculus, seems likely to me to drive a moderate pick.
That’s right, and it’s a good thing. We don’t need liberal activists on the Court anymore—we just need them in Congress! That wasn’t true from the 1930s through the 1970s, when progressive goals were more likely to be thwarted either by conservative judicial doctrines or by inaction in Congress. Now the jurisprudential vision of liberals should be much more about preserving established principles of deference to legislative judgment than about forging new rights.
Nominating Clinton to the Supreme Court Would Be a Terrible Idea
Ezra Klein questions the conventional wisdom that the president should avoid a contentious nominee to replace Justice Stevens, who will be stepping down from the Supreme Court this summer. Given the politics of the coming midterm elections, the confirmation battle is likely to be nasty even if the nominee is relatively benign or even considerably more conservative than Justice Stevens himself. Maybe a more aggressively liberal nominee would fare just as well in the confirmation struggle while having an energizing effect for Democrats in the midterms. Maybe.
Ezra casually tosses out the name Clinton as a desirable nominee with experience in legislative politics and statecraft—experience that breaks the mold of the career legal technicians on the Court today. Clinton, as in Hillary.
I can’t even really begin to enumerate the ways in which this would be a terrible idea. But suffice it to say this: While the Court is not impervious to the sway of politics, it should aspire to be and appear to be above the naked political preferences of its members. And its members should have and appear to have unquestionable integrity.
The appearance of integrity on the Court is crucial to its constitutional role and to the maintenance of some semblance of rational order in the legal system. I do not assume that Secretary Clinton lacks integrity. But I do not think it possible that a confirmation hearing that revisited Whitewater and the rest could conceivably end beneficially for the Court, the president, or the nominee.
We need not achieve consensus in the eventual nominee’s judicial philosophy, but we absolutely do need consensus that that the nominee is of the highest integrity. However unfair it may be, Hillary Clinton will not ever achieve that consensus. Even her marriage to the former president, famously disbarred from the practice of law, taints her public image more than we can or should overlook in a Supreme Court nominee. Caesar’s wife must be above suspicion, as they say.
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