Law: August 2007 Archives

A little while ago I had lots of things to say about the judicial nominee battle going on in the Senate and the claims by some of the Democratic senators, most prominently Senator Schumer, about the process of confirming the newest two Supreme Court justices. I didn't have the time to type up any of my thoughts, and it feels a bit late now. However, one thing I did want to say something about is the interesting reversal of roles that we see when the Senate shifts leadership and each party complains about the tactics of the other side. See Jan Crawford Greenburg's post here for some nice examples.

You might classify the views on such matters in terms of two pure positions. One is the view Senator Chuck Schumer (D, NY) has been consistent in holding (although his application of it leaves much to be desired, in my view). According to him, there is absolutely nothing wrong with expecting nominees to violate the current norm among judicial nominees not to comment on potential future cases or on issues one expects might come before the court one will be seated on. In the Roberts and Alito hearings, he pressed for details on whether they believe certain rights are established in the Constitution, whether they would be willing to overturn certain precedents, whether they thought particular cases were wrongly decided, and so on. They refused in many of these cases to go beyond the standard they both believed to have been presented by now-Justice Ginsburg's nomination process a decade-and-change earlier. Their reasoning is that commenting on what may be central to forthcoming cases will threaten their perception as unbiased judges, since those whose cases will be heard will think the justices' minds are already made up and will not give them a chance. But this is not the reasoning of the other pure view on such matters.

The alternative view is not merely that there is a convention among judges not to engage in such prediction out of fairness to parties in future cases. The alternative pure view is that it is simply not the business of the Senate in confirming judicial nominees to engage in partisan politics. That is for the president to be concerned with, since it is his election that determined who would nominate judges for any vacancies. The Senate's role is merely to safefuard the president's choices against serious corruption and ethical issues and to ensure that the nominees are qualified to carry out the tasks required of them. Deference is given to the president's nominee. The primary objection to this view is that the Senate is also an elected body, and they are elected for partisan reasons to present partisan considerations for or against what the Senate might do, including for or against judicial nominees in their role of advising and consenting. It is thus within their authority to question nominees who are both qualified and not corrupt simply because they disagree with the nominee on issues of legal philosophy.

I think the latter issue is an interesting debate in constitutional interpretation. The Constitution's text merely says that the Senate will advise and consent to the president's nominees. It doesn't give a reason why. It doesn't indicate what process the Senate will engage in before giving their consent or their advice. It doesn't say if the advice and consent are different stages of a two-step process. Those things are all not in the text of the Constitution but are in the Senate's current practice of carrying out this role. I don't know anything about the legal background to this sort of thing and whether English common law explains it. I don't know anything about the debates in the constitutional committees over this language and what light that sheds on it. I don't know anything about whether the federalist papers explain what some of the founders were thinking of as they argued for this kind of wording. In short, I am woefully unqualified to have much of a view about what the Constitution really means by saying this. If I were to go by what I take from it merely by reading the words, I'd be inclined to think that the Senate ought to give advice to the president and then confirm whoever the president selects.

Unitary Executive

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Ilya Somin nicely clears up some confusions about what's commonly called the unitary executive. There are two issues: the scope of executive power and its distribution. The unitary executive view is that the president's authority over the executive (an intra-executive issue) is absolute. I would have thought this to be absolutely clear in the Constitution, but apparently some disagree. A separate issue is about the scope of executive power. How much authority does the executive has with respect to the other branches (an inter-branch issue)? In other words, unitary executive allows the president sovereign control over what happens within the executive branch, but this other view sees the executive power as expansive in a way that many find controversial. The problem is that many people keep calling the latter view by the term "unitary executive".

Somin says:

As Alito explains, one can consistently support a unitary executive with a narrow range of powers (which is roughly my position). One can also consistently support a unitary executive with very broad, almost unlimited powers (John Yoo's view, and also that of the Bush Administration). You could - also consistently - endorse a nonunitary executive with broad powers. The latter was the position of liberal Democrats during the New Deal and for many years afterwards, when they endorsed both broad executive power and the creation of numerous executive agencies outside presidential control.

Is there an example of someone who both denies the unitary executive and thinks the executive has a limited role? Given that both positions serve to limit the president, perhaps hardly anyone seeks to try both ways at doing so, but I'm curious whether someone has tried.

I've finally gotten back to continuing my series at Right Reason with Religious Motivations in Politics. Given the Augustinian framework I've already presented, Christians have a motivation to seek the good of our neighbor around us by participating politically based on what we believe to be good, which does in part come from religious motivations. The post spends most of its time responding to objections that this is immoral because it forces a moral view on those who don't have it and that a secular society (or a religiously plural society) should not allow such a thing.

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