Note: This post accidentally appeared for a few minutes yesterday when it was incomplete. I apologize to those who use newsreaders to read my blog who had it appear and then disappear. One person even sent a trackback during that brief window, and I don't know how making the post a draft again before returning it to published status will affect that link. As of yesterday, I hadn't finished the last few paragraphs, and I hadn't put in links to some of what I was citing. I lost some of the links I was going to use and had to spend some time this morning finding them again. I've edited a few other parts as well.
The Senate Judiciary Committee voted Thursday to send President Bush's nomination of John Roberts for Chief Justice of the United States to the full Senate. In expressing his opposition, Senator Joseph Biden (D, MD) basically claimed that we elect our Supreme Court justices. Biden also said, "I'm unwilling to take the constitutional risk at this moment in the court's history." This is from the man who at Clarence Thomas' nomination hearings, and more recently at the hearings for Alberto Gonzales' nomination as Attorney General, said that in his view the advise and consent function of the Senate, as instituted by the Constitution, was for senators to judge whether a nominee was qualified and not whether the nominee was ideologically on the correct side. That's the job of voters when selecting a president who would make such nominations. He understood that other senators had different views and encouraged them to vote according to their conscience, but he thought of advising and consenting as giving advice to the president beforehand and simply investigating to see if the nominee is indeed qualified. Apparently that only applies when he wants it to. So while Biden is worried about a yes vote threatening the Constitution, all the while he's violating his senatorial responsibility according to the very interpretation of the Constitution that he had explained something like eight months ago to defend a yes vote on an unpopular nominee.
It's also interesting to compare the earlier statements of Dianne Feinstein (D, CA) with her latest pronouncement about Roberts. Earlier, she said that she would find it very hard to vote for John Roberts if she knew he would vote to overturn Roe v. Wade. Apparently she wasn't being very forthcoming about her views. It turns out she wouldn't vote for John Roberts even if she had no clear evidence that he would vote to overturn Roe v. Wade. There's no contradiction there. She just has a much stricter standard than she had first admitted to. But she seems to me as if she was trying to say just enough to
get confirmed sound as if she was being fair at the outset, while knowing all along that there was nothing he could do to satisfy her, at least nothing short of violating the American Bar Association's code of ethics. If he'd done that, of course, whichever side disagreed with him would bring it up if any case came before the court, forcing him to recuse himself.
For the record, the Democrats on the committee who voted for Roberts were Herb Kohl and Russ Feingold of WI and Patrick Leahy of VT, the leader of the Democrats on the committee. Feingold is no surprise. Even though he's among the most liberal of all senators in some respects, he's a man of conscience who won't vote out a qualified candidate. At least that's what he's been so far. He has a history of giving the benefit of the doubt. He was one of two Democrats willing to confirm John Ashcroft as Attorney General. I wonder if he convinced his state's other senator to stand with him. I don't know if either one is in danger of losing in the next election, but WI is a purple state on the outer edge of blue and red zones, and it was really close in the 2004 presidential election.
Leahy made it clear that it would violate his conscience not to give Roberts the benefit of the doubt when there was no clear evidence that he would do anything that would be truly worrisome to the senator. Other Dems on the committee who admitted by their vote that they have no conscience of the sort Leahy says he has are Ted Kennedy (MA), Dick Durbin (IL), Mark Dayton (MN), and Chuck Schumer (Brooklyn). In the wider Senate, those who announced that they will vote no are Democratic leader Harry Reid (NV), John Kerry (MA), Barack Obama (IL), Hillary Clinton (NY), Barbara Boxer (CA), and both senators from NJ, Jon Corzine and Frank Lautenberg. Democrats who are being reported as planning to vote to confirm are Tim Johnson (SD), Bill Nelson (FL), Mark Pryor (AR), Jeff Bingaman (NM), Max Baucus (MT), Ben Nelson (NE), and Robert Byrd (WV), all from red states. Mary Landrieu (LA), Evan Bayh (IN), and Kent Conrad (ND), also from red states, said they are leaning toward a yes vote. Of those red state Dems, Bingaman, Conrad, Kohl (if purple count), both Nelsons, and Byrd are up for reelection next year. That's almost all of them. No other red state Dems are up for election next year.
Pro-choice Republicans who intend to support Roberts include Susan Collins (ME), Lincoln Chafee (RI), and Arlen Specter (PA), judiciary committee chair. Olympia Snowe (ME) almost always votes with Collins, and I think that just leaves John McCain (AZ) out of the pro-choice Republicans. Arizona is a red state, and I suspect he'll cave in. Even the blue-state pro-choice Republicans are voting yes. To my knowledge, no Republicans have gone on the record as intending to vote no. This one seems pretty locked up. I don't think the Democrats against Roberts could filibuster if they wanted to. [The most comprehensive tallies I've seen of who has indicated a vote are in a comment here. Those who insist on a mainstream media source can check here for almost the same information, with one omission and one addition as of my last check. Also, see if you can spot where one of them assigns three senators to one state. I can think of a number of jokes regarding that one, but I'll refrain.]
Of course, the thing that disturbs me the most is that even the Democrats voting yes have framed their reasons in terms of political outcome rather than judging according to the Constitution and the law. Feingold says he'll give him the benefit of the doubt, because he doesn't know if Roberts will ensure the outcomes he wants. A few of the reasons for yes and for no answers involved worries about Roberts because he wouldn't place a political consideration above the law and the Constitution. Orin Kerr points out that Hillary Clinton's statement explaining her forthcoming no vote sets such a high standard that she would have had to vote against even the most liberal of Republican appointees, including Blackmun, Stevens, and Souter, never mind those moderates like Kennedy and O'Connor who do what she codes as "protecting fundamental rights of women".
Barack Obama insists that Roberts is worrisome because he has a history of sometimes taking sides against the poor and marginalized. Isn't that what the law is supposed to do? Isn't that what a judge is supposed to do? Roberts himself made the case for this in his hearing, arguing that the strong and powerful have just as much a protection of the laws and the Constitution as the weak and powerless, and what determines who wins is not whether they are weak and powerless but whether the law is on their side. The law is not always on the side of the poor and the marginalized. A judge should defend the poor and the marginalized to the extent to which the law protects them. Last I knew, it was supposed to be an unfair caricature of those who favor liberal justices to accuse them of being purely about outcomes (i.e. judicial activism), but that's what it seems these senators are admitting they truly want, someone who will care only about results and not about whether a decision accords with the law and the Constitution.
I do have to say that Obama admits that only 5% of judicial cases involve this sort of thing, and he says that Roberts will be great at the other 95%, but it's clear from his whole press release that the thing that finally makes his decision is that he fears Roberts will take conservative views on the 5% of decisions that the law isn't clear on and that are debated. Well, duh! Roberts is a conservative. We know that. You shouldn't expect otherwise from a Bush nominee. Obama frames this in terms of the strong and the weak, but the only evidence he has that Roberts would favor the strong over the weak is interpreted fully in light of his political vision that bigger government helps the weak and imbalances the strong's power, when many conservative views deny this. The four cases he lists are instructive:
your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled
What Senator Obama is saying is that from Roberts' past memos (which may not have been his views to begin with in many cases) he has worries that Roberts will take conservative views on those four issues. He thinks that will favor the strong over the weak, and he thinks that the strong shouldn't be favored over the weak in those cases. I think those conclusions can be easily disputed, which reveals that despite Obama's earlier plea not to turn this into a political debate he sees it as one. He insitsts that the respect and collegiality among those who disagree comes from a sense of intellectual rigor and honesty, which Roberts has. He offers a pretense of distancing himself from those who won't recognize what Senator Lindsey Graham (R, SC) criticized Democrats for during the hearings. Graham justly brought to mind that people of good faith and a good heart can come to very different views yet still care about good results. Having the wrong views doesn't make someone out to harm people. It just means they're convinced by bad arguments for a bad view that they think will lead to the results they want. I think it's mere lip service when Obama says this, because of what he goes on to say.
When it comes down to it, Obama votes no because he can't imagine someone opposing affirmative action because of a conviction that affirmative action makes racial problems worse or that abortion-on-demand is not just harmful to those killed but to the women who are pressed into situations where they think, usually wrongly, that abortion is the only and best option. It's because he can't imagine anyone thinking that it would be good if Congress could do things not clearly within its jurisdiction but still opposing it because the proper means of making it Congress's jurisdiction hasn't been followed. It's due to his inability to countence the possibility that someone might genuinely have a concern for people who have been marginalized and ignored, while still thinking the law needs to be changed before a judge has the power to step in and change some of the contributing factors of that. In other words, Obama is indeed concerned about outcomes rather than process, a big no-no when it comes to Constitutional law, as he should know as a former law professor. Obama is indeed concerned about political views above all. I'm having trouble reading the second half of his press release as consistent with the spirit of the first half, and I'm not even sure it's consistent with the letter of it.
The statements about the replacement for Justice O'Connor reveal similar problems. Senator Schumer said about that vacancy, "Please send us a moderate, but if you send someone who is very ideological there'll be a much bigger fight than on Roberts because this is for the O'Connor seat and that's the swing vote on the court." So somehow it matters more whether a justice is of a certain mindset if it will change the balance of the court from what it's been, but it doesn't otherwise? I'm not sure why someone is more or less qualified or more or less likely to be a better justice simply because of who they're replacing. Pundits have been speculating about senators' mindsets on those matters, in a way that any careful pundit on the other side would have to reprimand them by assuming unfairly that their motives are so base as to care more about who is replacing O'Connor than who is replacing Rehnquist. It's perfectly fine to care about it in terms of whether you will like the outcome, but is a hearing for a Supreme Court nominee supposed to be about the outcome or about whether the person is going to be a good justice? Despite my usual caution about people's motives, I've had to conclude that some of these senators are simply not so well-intentioned. Schumer simply admits this ridiculous motive. For him, who the justice is replacing really does matter. Whatever happened to wanting qualified justices who care about what the law says and how it applies in the particular case at hand, even if the outcome doesn't advance some really good cause? I think it's fair to say that these statements really do show that some of these senators want the judiciary writing the law.
What's truly sad is that a sitting justice on the court would take part in such nonsense, insisting that any appointee must "advance human rights or women's rights", which in context (because it involves learning from foreign laws) means moving us beyond what the laws and Constitution the justices should be following actually say. In other words, Justice Ginsburg has officially admitted that she thinks the Supreme Court should be legislating. She thinks a new Supreme Court nominee ought to advance us beyond the standard conception of rights in our laws and Constitution and move us to a new one that includes more rights.