Evaluating Supreme Court Nominees

We might distinguish between two grounds for evaluating Supreme Court nominees. The first is technocratic. Is the nominee excellent? Does the nominee have relevant knowledge and experience? The second ground is political. How is the nominee likely to vote? How does the nominee approach the Constitution? (The word "political" is too crude, because no nominee is likely to approach the law in simple political terms; but let's put that issue to one side.)

On technocratic grounds, the following recent nominees were obviously outstanding: Roberts, Breyer, Ginsburg, Scalia, and Bork. (Douglas Ginsburg belongs in that category as well.) No one could doubt the ability and relevant experience of these nominees. Their records clearly demonstrated that they were first-rate. The same could be said of several other recent nominees as well.

On political grounds, Judge Bork was of course found unacceptable by a majority in the Senate, and Republican leaders made it clear to President Clinton that they would reject some people on his list; they also indicated that Breyer and Ginsburg were sufficiently moderate. (Let's put to one side the intense debates about whether Breyer and Ginsburg are in fact moderate; at least it can be said that they do not share the liberal views of William Brennan and Thurgood Marshall.) For their part, many Democrats concluded that Chief Justice Roberts was well within the acceptable range.

What about Harriet Miers? She might be superb, but her record and experience certainly do not compare to those of recent nominees. She has neither been a judge nor had much experience with the Supreme Court itself. There's nothing comparable to the appellate work of Chief Justice Roberts, or the judicial and academic work of Breyer, Ginsburg, Scalia, and Bork. Even Souter and O'Connor, with their thinner records, had judicial opinions to evaluate.

On political grounds, there are at least equivalent questions. We appear not to have any sense of her general approach to constitutional law. From the public record, it was possible to give at least a rough and general evaluation of all or almost all of the recent nominees. Apparently that's not true here.

A reasonable conclusion is that this nomination should be viewed with uncertainty and puzzlement. A silver lining: The uncertainty and puzzlement should not divide people along political lines.

Comments

[Niels Jackson]

Dan -- this whole issue is really beside the point. The fact is, conservatives and liberals are all over the map on free speech. The reason that's important is because of your original pretense that the Free Speech Clause jurisprudence somehow proved that Ginsburg and Breyer are less "liberal" than Brennan and Marshall. That's the real point. And as I've said, it all depends on how you define "liberal." Does "liberal" mean voting in favor of all free speech claims? Or does it mean "voting in favor of free speech except for speech about abortion," which is what some liberals these days seem to believe? Who knows. Anyway, your original point is not worth very much at all.

[Dan the Man]

"The fact is, conservatives and liberals are all over the map on free speech."

I just drew you the map of where conservatives and liberals stand on free speech based on your much tauted Volkh chart. If you don't like it complain to Volkh or say what's wrong with my use of it.

"And as I've said, it all depends on how you define "liberal.""

Uh, what, are you like a po-mo literature student? Am I going to get a lecture on Derrida next? Actually in real life one tends to point out who the liberals are and then determine what the liberal view is from their point of view. The ACLU probably gives a pretty accurate view of what the liberal view is (with some exceptions). For conservatives, you would probably look at the Heritage Foundation.

"Anyway, your original point is not worth very much at all."

Well, since you still haven't responded to my chart, it's more like what you're saying is worth not much at all. By the way, do you realize Kennedy is typically described as a moderate or conservative-moderate?

[Niels Jackson]

Your chart is incoherently formatted, and I don't want to take the trouble to figure it out, especially given that you've already demonstrated several times over that you've never read any of the Supreme Court's decisions on free speech.

"Actually in real life one tends to point out who the liberals are and then determine what the liberal view is from their point of view. "

That's the point: You can't do that with free speech. Stevens is a liberal and Brennan is a liberal, yet they voted on opposite sides of the flag-burning case. Rehnquist is a conservative and Scalia is a conservative, yet they also voted on opposite sides of the flag-burning case.

Anyway, my original point -- that Ginsburg and Breyer aren't appreciably less "liberal" than Brennan and Marshall -- still stands. It certainly isn't affected by any of your irrelevant and ignorant venting.

[Dan the Man]

Your chart is incoherently formatted

Wrong, but since I'm a nice guy I'll actually give you an html file version which I placed in a zip file at

https://s54.yousendit.com/d.aspx?id=0M179NWYRGYBW133EGF6YGP7CP

I'm waiting for your next lame excuse dork-brain. Suggestion: try out the dog ate your zip file excuse.

"I don't want to take the trouble to figure it out, especially given that you've already demonstrated several times over that you've never read any of the Supreme Court's decisions on free speech."

Says the guy who doesn't realize that Kennedy is typically regarded as a moderate or a conservative-moderate. You're really good at doing this trolling stuff. Ever get sick of being a big fat liar?

"Stevens is a liberal and Brennan is a liberal"

Actually every non-idiot knows Stevens is not as liberal as Brennan. But I wouldn't expect anything less from someone who considers Kennedy to be a conservative.

"Rehnquist is a conservative and Scalia is a conservative"

Says the guy who doesn't relize that Kennedy is typically regarded as a moderate or a conservative-moderate. You're really good at doing this trolling stuff.

"Anyway, my original point -- that Ginsburg and Breyer aren't appreciably less "liberal" than Brennan and Marshall -- still stands."

Yes, but you're an idiot so no sensible person cares what you think anymore.

"It certainly isn't affected by any of your irrelevant and ignorant venting."

Yes, but you're an idiot so no sensible person cares what you think anymore.

[Insider]

State of U.S. Courts. . .

Consider the following:

Open Letter

October 23, 2005

United States Judicial Conference
Administrative Office
of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E. 20544

Mr. Albert N. Moskowitz
United States Department of Justice
Civil Rights Division
950 Pennsylvania Ave, N.W.
Washington, D.C. 20530

Mrs. Mary Beth Buchanan
U.S. Attorney Western Pennsylvania
United States Department of Justice
U.S. Post Office and Court House
700 Grant Street, Suite 4000
Pittsburgh, Pa 15219

United States Judicial Conference
Chief Justice United States Supreme Court
c/o Mr. William K. Sutter, Clerk
Office of the Clerk
c/o Mrs. Pamala Talkin
Marshall of the Court
No. 1 First Street, N.E.
Washington, DC 20543

Third Circuit Judicial Council
United States Court of Appeals
c/o Toby D. Slawsky, Esq.
Circuit Executive
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790

Chief Justice
United States Court of Appeals
for the Third Circuit
c/o Toby D. Slawsky, Esq.
Circuit Executive
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790

RE: Formal Complaint (filed under the Judicial Improvements Act of 2002
28 U.C.S. Sections 351-364); Formal Complaint (filed under 28 U.S.C.
Section 372(c)); and Request for Investigation (pursuant to 28 U.S.C.
Section 604)

Dear All:

Please be advise of the following criminal activity.

On or about October 11, 2005, Marcia M. Waldron, Clerk for the Third Circuit Court of Appeals forwarded a copy of an Order (No. 05-3702) that, among other, requested a copy of the district court docket entries. On October 21, 2005, I purchased a copy of the docket entries (No. 03-1400) and forwarded such to the Third Circuit. However, I noticed the August 16, 2005, entry entered by JSP that advised the clerk’s office couldn’t locate documents #16, #64 and #86. That is, the clerk office wasn’t able to transmitted the complete record (No. 03-1400) to the Third Circuit.

In short, previously I submitted unequivocal evidence of perjury (violation of Section 1746 Title 28, United States Code) to the Department of Justice, federal court and others. Since my request for a formal investigation, the evidence (documents #64 and #86) was somehow removed from the official court file.

At issue is an affidavit submitted to the court by Cassandra Colchagoff (an attorney). With the November 10, 2004 affidavit Mrs. Colchagoff attempted to change her testimony (December 2003 affidavit). That is, the district court specifically cited her December 2003 testimony as its reason for dismissing the constitutional claims in the matter No. 03-1400. Mrs. Colchagoff had testified (made a material false declaration) that there was “no link to Kaplan Higher Education Corporation (Kaplan College) and no link to federal funding.” The district court ruled that “without a link to federal funding” I couldn’t pursue my constitutional claims against Kaplan.

The only difference between the two Colchagoff affidavits is the November 10, 2004, testimony no longer suggested, “no link to Kaplan Higher Education Corporation (Kaplan College) and no link to federal funding.” Likewise, her attorneys, Sara Shubert, Laurence Shtasel, and Blank Rome appears to have changed their representation to the court. Her attorneys now acknowledged my October 15, 2000, Kaplan College enrollment letter and admitted in footnote 2 “certain colleges operated by Kaplan Higher Education Corporation, such as Kaplan College, received federal funding.”

Because this information (Document # 64 and #86) is “fatal” to the court’s decision at No. 03-1400, it has been unlawfully removed and withheld from the United States Court of Appeals for the Third Circuit. The unexplained disappearance of document #64 and #86 is further proof of criminal activity (obstruction of justice and intentional violation of my civil rights).

Please note, the November 10, 2004, Cassandra Colchagoff affidavit (Document #64 and #86) now missing from the court record, at paragraph 23, specifically admitted malfeasance.

In conclusion, the missing affidavit (Document #64 and #86) not submitted to the Third Circuit is decisive for all factual issues related to this matter and directly contradicts Judge David S. Cercone’s Memorandum opinions (May 14, 2004 and June 29, 2005).

I demand an immediate investigation.

Respectfully,
(Name Removed)