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Confirmation Theater
Monday, June 28th, 2010My column this week is on how the confirmation process is designed to keep us as ignorant as possible about how a prospective Supreme Court justice would actually perform on the bench.
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“Kagan is aspiring for a promotion to one of the 10 most powerful positions in the U.S. government”
Are you talking about the 9 justices and the President?
I agree with Radley’s frustration on this issue, and I have for as long as I can recall having seen judicial confirmations.
The approach that the Senate should take is simple: If the nominee will not reveal enough of his legal views and jurisprudence that a Senator can reasonably determine how he will apply the laws and Constitution to likely court cases, then he cannot vote for the nominee in good conscience. To wit, there can be no confirmation in the dark. This is a totally appropriate stance for Senators of any party and for nominees from any President. It is the height of irresponsibility that a Senator should vote for a lifetime appointment for a nominee where he has no idea what sort of job the nominee will do.
The notion that it is somehow “inappropriate” for the nominees to discuss the legal reasoning and the arguments they find compelling when adjudicating a case is nonsense. There is nothing inappropriate about it, as long as it is understood that this is the reasoning that a nominee finds most appropriate and compelling at the time of the hearings, but that it is not a promise that he won’t find a different argument more compelling in the future. In other words, he is a thinking individual and he will be discussing cases with, presumably, some of the smartest and best-informed legal minds of our time, so his positions may evolve, change, or become more firm. Because of that, explaining his judicial philosophy and reasoning – even regarding a case likely to come before him on the bench – is not a promise to render a particular opinion on any future case. Therefor, it is not inappropriate for him to explain it.
Freedomfan “If the nominee will not reveal enough of his legal views and jurisprudence that a Senator can reasonably determine how he will apply the laws and Constitution to likely court cases, then he cannot vote for the nominee in good conscience.”
Simple but brilliant!
Off-topic, but not sure where else to post…
I just saw Toy Story 3 and it had an interesting libertarian bend. I can’t quote directly, but at least three scenes/quotes stood out, and I’ll try not to spoil:
1.) Upon arriving somewhere new, the toys are sold on the place as not having an owner and being masters of their own domain.
2.) Denouncing a leadership structure for being a triangle with one man at the top.
3.) Stating that government requires consent of the governed.
Interesting!
Note: These were all pretty explicit quotes; not much had to be read into them to get what was being said. Curious if anyone else has seen it.
I would like to hear a little more about the JournoList scandal. This thing has Reason Mag’s finger prints all over it. This Weigel’s recommends everyone read Radley Balko ever chance he gets.
Just once I’d like to hear a court nominee say “Look, I’m not going to answer any questions of substance and you don’t have the stones to hold it against me. Why don’t we just adjourn this senatorial preening exercise and go get a beer?”
I’d give them points for brutal honesty if nothing else.
BSK – I didn’t pick up on those themes in Toy Story 3, but you are right. For those who have kids, definitely go see it with your kids. I took my 3 year old for his birthday and he crawled up in my lap for the touching ending part. It really doesn’t get any better than that.
I can think of a more honest question:
“Will you use your seat to give us more power when we need it?”
“… the confirmation process is designed to keep us as ignorant as possible about how a prospective Supreme Court justice would actually perform on the bench.”
I’m a bit surprised by this statement. All one needs to know about how a prospective SC justice would actually perform on the bench is who appointed him or her. Simply review the voting records of the various justices and in nearly every case, the voting is in blocs according to whether the justice was appointed by a Democrat or a Republican.
That analysis is from a statist perspective, however. From a freedom perspective, all nine justices uniformly uphold the power of the State, even in rulings where State power is limited. After all, they are all government “employees.”
Off-topic, but not sure where else to post…
http://www.blogger.com/ is free of charge, I believe.
#10 – Not sure I agree with you on that one, Cynical. Souter was nominated by Bush the Elder, not sure he’s been a republican mainstay in his time on the bench. Stevens was appointed by a republican, too.
Cyto-
The movie was great REGARDLESS. I wouldn’t go so far as to say it was a Libertarian movie, but those things did stand out to me. Maybe not necessarily “libertarian” but they made a couple of interesting points about governance.
Kagan Shifts on Disclosure of Legal Views at Hearings
Friggin’ politicians must have some kind of impenetrable mental barrier that shields them from seeing their own hypocrisy.
Radley, I’m not nitpicking to be a asswookie, but you got a typo:
“Shorty after President Obama announced her nomination,”
Unless someone forgot to Get Shorty?
…yes, I’ll keep the day job.
Elena Kagan thinks Borking is a good thing. So why doesn’t Congress give her a good Borking?
Most of the frenzy in the media over confirmation hearings is designed to keep us from learning anything useful about a nominee as well. It’s always fluff pieces and panic driven diatribes about their personal lives.
A bit off topic: http://abclocal.go.com/ktrk/story?section=news/local&id=7526402 Police officer responding to a 911 call shoots a deaf woman’s dog. The dog is only alive because the cop was a piss-poor shot. It does look like a particularly savage beast, though.
Fair enough Ben, let’s see how it plays out in the coming months/years as the recent appointees establish their records.
//The notion that it is somehow “inappropriate” for the nominees to discuss the legal reasoning and the arguments they find compelling when adjudicating a case is nonsense.//
Indeed, consider the following two people:
1. A nominee who said how he would decide a hypothetical case whose circumstances would likely be similar to–but not identical to–those of some future case
2. A sitting justice who said how he would (and did) decide an actual which appeared before him, whose circumstances would likely be similar to–but not identical to–those of some future case.
How is the impartiality of person #1 compromised more by his statement than that of person #2 compromised by his? Surely nobody would suggest that justices should recuse themselves if a case comes up that’s similar to one they’ve tried before.
Incidentally, I wish a justice or nominee would openly state that court precedents have less authority than the Constitution, statutes, or other laws. Precedents should be consulted in cases that would otherwise be ambiguous, but with few exceptions(*), decisions which cannot be justified without reference to precedent are unjustifiable. Indeed, except when the Constitution, statutes, and other laws are truly ambiguous, precedents will either (1) agree with what the laws would require, in which case they’re superfluous, (2) apply to circumstances which are substantially different from those of the present case, in which case they’re irrelevant, or (3) disagree with what the laws require, in which case they’re illegitimate.
(*) In some cases, it may be necessary to explicitly acknowledge an illegitimate precedent in order to minimize the harm done thereby. For example, if two parties bring suit against each other both seek to introduce some type of evidence and a court wrongly allows the first party to do so, the second party should likewise be allowed to do so. It would have been better if the court had not illegitimately granted its favor to the first party, but once it has done so it should not add to the insult by refusing a similar favor to the second.
Note that illegitimate precedent may only justify a result if the net effect is to minimize the consequence of that precedent. Even if the effect of the corrective case was similar to that prescribed by the illegitimate precedent, it should not be taken to imply that the illegitimate precedent was valid, nor should it be taken to imply that it should be applied going forward.
Radley, this column is as stellar as it is thorough.
However, I have a hard time believing that greater transparency in this process would actually result in “better” (by which I of course mean more favorably disposed to the mostly libertarian positions with which I agree) appointments to the Court. It isn’t as though “we” would really have much of a say in a nominee even if we had detailed information about exactly how they would rule on anything that we care about. It’s still the Senate, and Senators will do what they do: grandstand over inconsequential stuff for the sake of the voters back home.
More to the point: the vast majority of the electorate will glaze over if you start talking about broad constitutional principles, never mind “originalism,” “constructionism”, etc. But people are easily manipulated if you bring up God, guns, gays, and fetuses. So I’m not sure that democratizing (i.e., giving the voters more to call their senators over) the process would do anything for it.
Of course, transparency is a good thing in and of itself, and perhaps it shouldn’t matter what the results are. I don’t know.
supercat,
I think you need to recognize the legitimacy of “Common Law” and the fact that it was a part of English Law before the founding and authoring of the Constitution and the framers wrote the Document with the current state of Common Law in mind and that Common law would continue to develop and shape the Constituion and other laws. Indeed many Congressional Acts are written witht the explicit intent of being vague for the sake of courts creating and shaping the law.
Also, just as a matter of practicality, precedent is good law becuase human beings will look at judge’s rulings and operate in a manner as to conform to those rulings. In other words, precedents establish the practical law of the land as much as they establish the intellectual or abstract law, and so they matter for those reasons too.
Oh and radley, I really like the column. The process is such utter bull crap. I agree with comment #2. There is absolutely no reason why judges can’t discuss hypothetical scenarios. Lawyering and the law is all about “hyppos.” But lawyering and the law is also about the specific facts of an actual case, s discussing a hypo isn’t a committment. Why can’t we have exchanges where a senator inquires:
Senator: Does the Constituion allow the President to do X, under the circumstances of ABC? And how would you examine the case?
Nominee: I would start by looking at XYZ clause, and see what can be drawn from that. Not knowing all of the facts because it is a hypothetical, I would be inclined to interpret that clause as providing great latitude to the president, including something along what you have discussed, however other important factors would come into play such as whether A, B or C had already occurred blah blah blah.
I mean, this isn’t hard, and no one would feel like the judge had “prejudged” their case when they got to the Supreme Court. It should be ridiculously obvious that no one gets to the Supreme Court withouth spending time figuring out which judges will be sympathetic and which won’t be.
supercat makes a great point in comparing the 2 scenarios. If giving opinions were improper then all dissenting opinions should be banned because they signify nothing but indicate a judges views and “predispositions. The whole thing is stupid and an insult to the law.