22 posts categorized "Confirming a New Justice"

October 11, 2006

Samaha Previews the Supreme Court Term

Each year, the Law School asks a faculty member to deliver a "First Monday" lecture in several cities in honor of the opening of the Supreme Court term. These lectures vary wildly in topic and scope, depending on what the speaker thinks the upcoming term will hold. Needless to say, the Supreme Court has been the subject of much discussion since the 2005 First Monday lecture, so Adam Samaha's talk called "Meet the New Boss" was both well-attended and well-received. We've had several alumni ask for a podcast of this talk, and we're delighted to bring it to you now. As always, podcast instructions are here.

January 29, 2006

Additional Thoughts on Alito

My last post, Why the Senate Should Not Confirm Alito, called forth quite a few comments. Many, perhaps most, drifted off into tangential terrain. But three quite reasonable questions were raised, and I'd like to address them.

First, why didn't I discuss In re Sealed Case, a lower court decision suggesting that warrantless surveillance may be constitutional in foreign intelligence investigations? The reference to warrantless searches in that lower court opinion was pure dictum. In fact, the search at issue in that case had been authorized by a warrant. The decision had nothing to do with the dictum, which was essentially gratuitous.

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January 22, 2006

Why the Senate Should Not Confirm Samuel Alito

I supported the confirmation of John Roberts and, until recently, the confirmation of Samuel Alito. I have reluctantly come to the conclusion, however, that Judge Alito should not be confirmed, and that this is a matter of real importance to the nation.

Judge Alito is a smart, experienced, and knowledgeable jurist. I have no doubt of his legal ability. I do not share either his judicial philosophy (apparently a mixture of quasi-originalism and social conservatism) or his views about many issues likely to come before the Supreme Court (ranging from the right to privacy to federalism). In such circumstances, I ordinarily would support his confirmation. On balance, the Senate should give more weight to excellence than judicial philosophy, and that is why I endorsed the confirmation of John Roberts.

Why, then, should the Senate deny confirmation to Judge Alito? The most fundamental responsibility of the Supreme Court is to preserve both the separation of powers and the individual liberties guaranteed by our Constitution. They are the bulwarks of our freedom. History teaches that these indispensable elements of our constitutional system are most threatened in time of war. Too often in wartime, the President demands excessive authority in his role as “commander-in-chief” and the President and Congress run roughshod over civil liberties in their effort to protect, or appear to protect, the nation.

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January 14, 2006

Presidential Signing Statements and the Tricameral Legislature

I come at the Constitution as an outsider. I don’t know the secret handshakes that the con law guys know. Santa was nice enough to bring our house a copy of National Treasure, and I am now convinced that the interesting side of the Constitution may be the one without the (visible) text. I also bring a West Wing sensibility to the legislative process. In 43 minutes—we netflix West Wing—President Jed Bartlet knocks together a few congressional heads and justice is done as new legislation emerges.

Notwithstanding that, sometimes it is hard not to put fingers to keyboard and so here I find myself. Presidential signing statements are much in the news given the hearings concerning the possible confirmation of Judge Sam Alito to the U.S. Supreme Court. In today’s New York Times, Adam Liptak has a detailed discussion of presidential signing statements and the topic appears in the excerpts from yesterday’s testimony (in particular that by Duke Professor Erwin Chemerinsky).

Here is my question: how do we think legislative history would operate if we had a tricameral legislature? That is, three humps rather than two (even the private law folks know the bad public law jokes). Suppose our legislature consisted of three chambers: how would we write legislative history? As you can guess, I think the answer to that tells us something about how we should think about presidential signing statements.

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Confirming Justice Alito?

A few thoughts on the likely confirmation of Judge Alito:

1. A significant bias is built into the system: Those who know a nominee best, or well, are unlikely to be willing to raise questions in public. I have heard from several friends of Judge Alito who do not want to see him on the Supreme Court, but who like and admire him and will not say a public word against him. The reason for their silence is personal loyalty. For lawyers and law professors generally, there is good reason to be circumspect, especially but not only if you know a nominee well: You might well make an enemy, and a lawyer or law professor doesn't much like having an enemy on the Supreme Court. (It's true that many law professors sign petitions against nominees, but the signatories rarely know the nominee personally, and many potential signatories have refrained from signing on the ground that I'm describing.) The same point holds even more strongly for lower court judges, who can easily support, and uneasily criticize, any presidential nominee. Law clerks have the same bias in even stronger form. I clerked for Justice Thurgood Marshall, who was, on many issues, far to my "left"; but even now, long after his death, it's not comfortable to criticize my old boss.

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December 09, 2005

Sunstein on the Chicago Judges Project

Cass Sunstein and a team of faculty and students in the Chicago Judges Project are hard at work analyzing such questions as whether votes of federal judges are predictable from their ideology. In this short interview from the Research at Chicago series, Cass Sunstein discusses judicial behavior on federal courts, examining considerable data on how appointees have voted, and considers whether judges are affected by their colleagues. This interview is available in both audio and video versions. For instructions, click here.

November 16, 2005

Originalism and the Federalist Society

On Saturday, I was at the Federalist Society meetings in Washington, DC, for a lunch-time debate on my new book, Radicals in Robes (inflammatorily and probably unfortunately named, I know). The specific topic was whether originalists are indeed "radicals"; Charles Cooper, a Washington lawyer, spoke in defense of originalism. He and others made a number of good points, of course, but there was a persistent claim that seemed puzzling. The claim was this: Interpretation just IS a matter of attempting to elicit the speaker's intention. Hence originalism, understood as a search for the original intent, follows from the very nature of interpretation.

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November 10, 2005

Don't Flyspeck Sam Alito

It is a source of immense relief to see that the nomination of Samuel Alito to the Supreme Court seems to be attracting less press attention with the passage of time. I regard that as a healthy matter because, truth is, there really is very little that need be said in defense of this nomination. So I will speak once, and perhaps thereafter hold my peace.

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November 06, 2005

To Confirm or Not To Confirm?

If you were a United States senator, would you vote to confirm Samuel A. Alito, Jr. to be a justice of the Supreme Court? There are really two questions: First, what type of justice will he be? Second, what is the proper role of the Senate?

With respect to the first question, the president touts Judge Alito as a “strict constructionist” who is in favor of “judicial restraint” and will “interpret rather than make the law.” This sounds good. But these are empty phrases in the context of contemporary debates about judicial philosophy. The terms “strict construction” and “interpret rather than make the law” are political slogans without substantive content. What does it mean to “strictly construe” the First Amendment, which provides that Congress “shall make no law abridging the freedom of speech,” or the Due Process Clause, which provides that “no person may be deprived of law, liberty, or property without due process of law”?

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November 02, 2005

Judge Alito

Having read about 60 opinions by Judge Alito, focussing on his dissenting opinions, I thought I might record some preliminary observations. Some distinctive patterns are emerging. (There is an overlap between what is said here and what I say in short pieces yesterday in the Washington Post and The New Republic.)

1. The tone of his opinions is unfailingly respectful, low-key, cautious, and reasonable.
2. The quality of his opinions is well above any "bar" for Supreme Court nominees. They're careful and solid. To be sure, there are some truly extraordinary Republican appointees out there, including Judges Easterbrook (7th Circuit), Ginsburg (DC Circuit), Posner (7th Circuit), and Williams (DC Circuit). Judge Alito's opinions don't show the brilliance of those of eg Posner, or the tremendous analytical power of those of eg Easterbrook, Ginsburg, and Williams. Nor do they appear, on initial reading, to be as high-quality as some of those by Chief Justice Roberts. But they're certainly good and often better than that.

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November 01, 2005

If (On Court Resignations, Nominees, and Information Markets)

If there is no serious misstep in the next couple of weeks, Samuel Alito will be confirmed as a Supreme Court Justice, and Sandra O'Connor's iffy resignation will become real. I think such "ifs" are provocative.  First, we should wonder about the future of contingent resignations.  O'Connor is sitting on the Court now, and this sort of lame duck could encourage strategic behavior (both in confirming a new Justice and in deciding cases on the Court), though a straightforward resignation, and an 8-member Court, might simply have raised other strategic possibilities.  Leaving aside the idea that the Court could have 10 or some other number of members, the contingent resignation might next be taken one step further: a Justice could resign subject to the confirmation of a successor by a certain date.  Thus, a conservative Justice might offer to resign, contingent on the sitting Republican President appointing someone and seeing that nominee confirmed.  We might squirm if we observed such a conditional offer of resignation, but it is only one step beyond where we are now.  Another would be a resignation contingent on seeing (and approving) the identity of the next nominee.  That seems almost beyond imagination.

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October 27, 2005

The Next Nominee

Now that we are happily past the Miers nomination, the obvious question is: Who's Next? I would like to commend two candidates to Mr. Bush: Michael McConnell and J. Harvie Wilkinson. Both are conservative judges with distinguished records of achievement.

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Have We Seen the Last of Harriet?

Article III Groupie is reporting that Harriet Meirs plans to stay on as White House Counsel.  I wonder if the President has something else in store for Miers.  Namely, there is apparently one vacancy on the U.S. Court of Appeals for the Fifth Circuit already, and several alleged short-listers currently serve on that court, raising the possibility of another vacancy in the coming weeks.  Whatever her shortcomings as a Justice, Miers seems like a perfectly plausible Fifth Circuit judge.  Plus, her nomination to that appellate court will give legal scholars and court watchers lots of evidence to answer the "what if?" question concerning Miers' ill-fated nomination to the High Court.  Given that the President probably feels badly about the way his hapless friend was treated, a life-tenure appointment with chambers in Dallas seems like an obvious consolation prize. 

Miers's Withdrawal, Cascades, and Information Markets

Cass's claim in his blog here yesterday was provocative because it claimed that one could discern a cascade.  Most of the comments were skeptical, though I must admit that I agreed with Cass's observation - hard as it is to test empirically.  The subsequent announcement by Miers of her withdrawal makes the cascade possibility yet more interesting.  So here is a further claim that I cannot prove: information markets (and perhaps other methods of communication) accelerate cascades, though we may want to call this effect something other than an information cascade.  Think of the position of a senator, and even of an academic or pundit or blogger (some overlap there), who sees an issue in play.  Some academics gain reputation from, or are by nature, contrarian, but in most walks of life it is useful to be right.  A senator normally expends political capital by backing a horse, but the expenditure is usually unprofitable if it is the wrong horse; a political commentator gains a following by predicting outcomes correctly; and even a business person or academic gains in reputation when events transpire as the person predicted.  The prognosticator is said to have good judgment.  In turn, if information markets are good predictors, perhaps because they aggregate information or judgment from dispersed parties in settings where many heads are indeed better than one, then one ought to look at the information markets (or proxies for them) and go along with the prediction.

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October 26, 2005

The Miers Cascade

An informational cascade occurs when imperfectly informed people pay attention to the signals given by the views of earlier speakers or actors; those imperfectly informed people join the cascade, thus amplifying the very signals by which they were influenced. If Adam thinks that global warming is a serious problem, Barbara may go along, and Charles may be reluctant to reject the shared view of Adam and Barbara; once Adam, Barbara, and Charles say, and think, that global warming is a serious problem, and once Danielle goes along too, a cascade is starting.

A reputational cascade occurs when people silence themselves because they don't want to be criticized, punished, or ostracized. Those who silence themselves, or seem to go along with the crowd, do not weaken and may even strengthen the reputational pressure on others. If Adam thinks that global warming is a serious problem, Barbara may go along for fear of incurring Adam's disapproval, and Charles may be reluctant to take on both Adam and Barbara; once Danielle goes along too, a reputational cascade is starting.

We are witnessing a Miers cascade, in which many people are giving negative or lukewarm signals largely because of (a) the information contained in the previous signals of others or (b) the reputational pressure to give negative or lukewarm signals. I don't mean to make any evaluation of Ms. Miers' nomination, or even to predict the outcome. But it is clear that we are in the midst of a textbook example of a cascade.

October 21, 2005

Are Judges Political?

Are judges political? At least in some ways, this is an empirical question. Together with Tom Miles and a group of superb students, and as part of the Chicago Judges Project, I have been studying this question in an area where the answer might well be expected to be "no." But the answer turns out to be “yes” -– if a somewhat qualified one.

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October 13, 2005

Bork and Stone Agree!

Robert Bork ('53) and I don't agree on much, but we do agree on Harriet Miers: She is not qualified to serve on the Supreme Court of the United States.

Bork has described the Miers nomination as a "slap in the face" to conservatives. But it is worse than that. It is a slap in the face to women, to the Court, and to the American people.

The politics of this nomination seems to have everyone in Washington spinning in circles. Conservatives, who only a month ago proclaimed that senators should not oppose a Supreme Court nominee "merely" because of a disagreement over ideology, furiously oppose Miers on the ground that the president has betrayed his committment to transform the Court in the Federalist Society image.

Liberals, who should oppose Miers because of her patent lack of qualifications, sit on their hands, relishing the internal Republican fireworks. They are paralyzed by the fear that if they join the right-wingers in defeating Miers, the president will then saddle them a more qualified and much more rigidly predictable conservative in her place.

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October 10, 2005

The Myth that Justices Change on the Bench

The Harriet Miers nomination has caused people to start saying, once again, that Supreme Court Justices often change their views once they are on the Court. Usually the claim is that they become more “liberal.” This is a myth. It’s simply not true that people routinely change their views once they’re appointed. It’s a reassuring myth to liberals, and a useful myth to rally the conservatives, but a myth nonetheless.

Last summer, when some of the same things were being said in connection with John Roberts’s nomination, I published an op-ed in the Chicago Tribune on this question. I thought it might be useful to reproduce it below:

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From Powell to Miers

Lost in the academic commentary on the nomination of Harriet Miers is the fact that she is apparently a nice and accomplished person.  Academics like to hear that someone is brilliant, though they then proceed to doubt the application of the accolade.  Niceness is not usually offered as a desirable quality in a jurist.  I have now met several persons who knew Harriet Miers at various stages in her life and who have sought to describe her.  No one has said "brilliant," and all have said "nice."  In fact, I am told that while she was not voted most likely to succeed in her high school class, she was deemed to be the nicest.  I think we underestimate how much most (non-academic) observers value that quality when attached to someone who, in their view, is smart enough.  Miers was one of the best students in the schools she attended, and in those places and certainly in that era, being voted "nicest" was probably the most valued compliment her peers could deliver.  We might guess that a good part of her success in the Texas Bar Association and at her law firm can be associated with this perception.  "Nice" in those circumstances might mean that a person is sufficiently non-threatening or otherwise appealing to those in power. 

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October 07, 2005

"I am not a strict constructionist, and no one ought to be."

Here is a passage from an excellent essay: "I am not a strict constructionist, and no one ought to be . . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

This passage is from Justice Scalia's essay in the book, A Matter of Interpretation. In his essay, Justice Scalia defends "textualism." He thinks that a strict constructionist is "better . . ., I suppose, than a nontextualist." But he describes strict constructionism as "a degraded form of textualism that brings the whole philosophy into disrepute."

Justice Scalia's discussion is relevant because the President seeks judges who believe in "strict construction"; because nominee Harriet Miers has said that the Constitution should be strictly construed; and because several prominent Republicans want some assurance that Ms. Miers believes in "strict construction." But as with "not legislating from the bench," so too here: It is not at all clear what "strict constructionists" do or believe.

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October 05, 2005

"Legislating from the Bench"

President Bush has said that he favors judges who will not "legislate from the bench" (hereinafter LFTB), and both Chief Justice Roberts and Harriet Miers have been praised as people who will refuse to LFTB. But is this a useful category? What does it mean? Consider the following possibilities:

1. Bipartisan restraint. Those who do not LFTB will vote to uphold the decisions of the elected branches unless those decisions are plainly and unquestionably unconstitutional. Such judges favor bipartisan restraint. For example, they will permit affirmative action programs; allow restrictions on abortion and same-sex relationships; and uphold regulations that greatly diminish the value of property (which were probably acceptable at the time of the founding, because the founders appeared to see "takings" as "physical invasions" of property, not as diminutions in the value of property). Bipartisan restraint has an honorable pedigree; Oliver Wendell Holmes generally favored it and Chicago's own Adrian Vermeule has a superb forthcoming book arguing on its behalf. But no current judge favors this approach, and it is most doubtful that President Bush means to endorse it. (A quiz question: In recent years, which justices have voted most often to strike down acts of Congress? Answer: Justices Scalia and Thomas, whom the President has singled out for special praise.)

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October 03, 2005

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.