OK, I'M PARTISAN

. . .in case you hadn't guessed. Although it's perhaps not surprising that Bush has gone on the attack with respect to judicial nominations (given his campaign rhetoric, especially in 2002), and it's perhaps not surprising that Republicans are trying to be aggressively majoritarian in the Senate, I still find it depressing and ironic for several reasons. First, it's clear to me, at least, that Bush is nominating judges according to the likely rulings that they will make. If it's improper for the Senate to make that inquiry, it should be improper for the President as well. But the Senate is simply more public than the Oval Office, and the unitary nature of the Presidency makes it easier for him to set the terms of public debate. All that Bush has to do is say that he does not employ a "litmus test" in his selection of nominees (but, hint hint, wink wink, I will nominate "strict constructionists" like. . .Owen?).

Secondly, I see a depressing parallel between the House Republican efforts to entrench their preferences through large budget deficits that will tie the hands of future Congresses, and Bush's efforts to entrench his policy preferences by stacking the judiciary with conservatives. Again, not surprising, but also not likely to do all that much for my well-being or the well-being of people and communities that I care about.

Thirdly, Bush promised to be a "uniter, not a divider." He lied. He's aggressively partisan. Not surprising, but not what he said he would do. I feel foolish for falling for it. I won't next time.

Finally, Bush says he wants to nominate "strict constructionists." Apparently, he's persuaded by those who see any other approach as a lack of judicial virtue. I am not persuaded by this claim. Frankly, what's missing in this self-identification of strict construction with the whole of judicial virtue is a civilized sense of one's own limitations. I guess I identify more with people who are morally strong enough to admit that they are limited beings with limited perspectives. Oh well.

NOW WAIT A MINUTE

Senators are letting themselves be lectured by the President (via HA) about their "constitutional responsibilities"? How's that for separation of powers and Federalist-Papers-esque "jealousy" about the powers of the respective branches. Fantastic.

Dems need to go on the offensive here, as in, "where is the phrase 'up or down vote' found in the Constitution? You want an 'up or down vote,' then get a constitutional amendment. Until then, we'll go with the original understanding as we see it: the Senate sets its own rules and procedures, as allowed by Article I."

Watch the video, at any rate. The printed text should be amended as follows:

Under the leadership of John Cornyn and Democrat Mark Pryor, these senators sent a letter to the Senate leadership last week. And this is what it said: None of us were parties to any of the reported past offenses, whether real or perceived [President smirks and lets out a short chortle]. None of us believe that the ill will of the past should dictate the terms and direction of the future. Each of us firmly believes the United States Senate needs a fresh start.

Forgive me for being a bit testy, but is he implying that there were no abuses under Clinton? If he thinks that only "strict constructionists" should be on the bench, then I guess he might not think that blocking Clinton's appointees was that bad.

And now Cornyn's hearings make a little more sense: whatever his other motives, he's also attempting to curry favor with Bush by going on the attack in the Senate. Looks like he's gearing up for a long tenure.

WHITE HOUSE AND (SUBTLE) DISINFORMATION?

On line forums are weird. But consider this recent online exchange between "Gregory" from Ohio and White House Counsel Alberto Gonzales:

Gregory, from Sandusky, OH writes:
Since the advise and consent role of Congress, as spelled out in the Constitution, specifically states that a simple majority vote is required, is it not unconstitutional for the Senate Democrats to insist that a 60 favorable vote to break a fillibuster is needed for the whole Senate to vote up or down on a judicial nomination?

Judge Gonzales
The Senate has a constitutional responsibility to provide an up or down vote. It is unprecedented for a minority of Senators to block a vote on an appeals court nominee by means of a filibuster. Both Miguel Estrada and Priscilla Owen have the support of a majority of Senators, and should receive a vote and be confirmed.

Judge Gonzales missed a great opportunity to correct a pretty serious misunderstanding on the part of Gregory, namely, that the Constitution "specifically states that a simple majority vote is required" in the nominations context. What we have here is a view that the Constitution can be interpreted to imply that requirement, a view that has been spreading in Republican ranks like wildfire (through Rush Limbaugh, for example). It takes a pretty fancy argument to claim that the Constitution must be interpreted in this way. Reasonable people can disagree here, and if the shoe were on the other foot, the arguments would cut in the other direction.

Whatever you think about that issue, note that Gonzales did not take the opportunity to correct an apparent misunderstanding on the part of his online interlocutor. Instead, he allowed the misunderstanding to continue by not addressing the factual error. That's too bad, but not unexpected.

INDIA - PAKISTAN OVERTURES

As usual, both Indian and Pakistani papers paint the recent thawing of relations as primarily the results of their own countries' efforts. But a thawing is occuring, and that is good news, regardless of who made the first move.

QUESTIONS FOR STEPHEN PRESSER

This post is in response to the essay written by Professor Stephen Presser, "The Role of the Senate in Judicial Confirmations, which you can acces through How Appealing, here. Here are the first two paragraphs of the article, which will occupy most of my discussion below:

For the last few weeks, a constitutional crisis has been brewing in the United States Senate. It is a constitutional crisis all but ignored by the public, but the resolution of this crisis is likely to determine the nature of federal jurisprudence for the next few decades. At one level, the struggle in the Senate is a struggle over one or two notable nominees to the lower federal courts, most particularly Miguel Estrada and Priscilla Owen, but, at a deeper level, the struggle is over what many of the Senate Democrats have called “judicial ideology,” by which they mean a disposition to decide particular cases in a particular manner. For the first time in memory, in public, one political party, the Senate Democrats, has taken the position not only that judges should be picked based on their preference for designated outcomes in cases that might come before them, but also that the Senate ought to be an equal partner in picking judges and that nominees who come before the Senate have a burden of persuading sixty Senators (the number necessary to cut off debate in the Senate), that they are worthy of ascension to the bench.

For those of us who still believe that judging ought to be impartial, that there actually is content to the rule of law, and that it ought not to be the task of judges to make policy from the bench, there is cause for great alarm over what is now happening in the Senate. It was that alarm, of course, even before the current imbroglio, that led candidate Bush to proclaim that he wanted to appoint judges who would interpret, not make law, and to point to Supreme Court Justices Antonin Scalia and Clarence Thomas as his models. Now that he has sought to do just that, those uncomfortable with the jurisprudence of Scalia and Thomas, those who would like to see constitutional interpretation as something other than fidelity to the original understanding of that document, have sought to deny Bush nominees confirmation. There is reason to be upset then, not only over the Senate’s frustrating the constitutional task of the President, but also over the theory of judging that lies behind the Democrats’ refusal to allow Senate votes on some of the Bush nominees.

Is it really true that "fidelity to the original understanding of the document" is the only defensible understanding of "constitutional interpretation"? Are all other approaches to constitutional interpretation tantamount to "mak[ing] law" not "interpret[ing]" it?

If "fidelity to the original understanding of the document" is the only defensible understanding of constitutional interpretation, then there was a crisis before Senate Democrats acted to filibuster Estrada and Owen, as Presser admits. In other words, the current standoff in the Senate over 2 judges reflects a deeper crisis, namely, the proliferation of false and pernicious understandings of meaning of interpretation. If there is a deeper crisis, then it doesn't matter if the Democrats in the Senate block zero, two, or twenty of Bush's nominees; what matters is why those particular judges are being blocked. Presumably, a Senate that was filibustering nominees who would "legislate from the bench" would be engaging in a strategy of constituitonal maintenance. It's not clear where the attacks on the filibuster as such would remain in such a situation. Suffice it to say that this strikes me as another example of rhetorical asymmetry in the debate over judicial nominations.

If there is a deeper crisis here, then the question of the Senate filibuster is essentially a side issue, a question of means rather than ends, and a question wholly seperable from the broader issue, which is that false and pernicious doctrines of interpretation have spread throughout the land. More fundamentally, signs of this crisis could be seen in Bush's nominees themselves. Are all of them really dedicated to "fidelity to the original understanding of the document"? How do we know?

Why all the effort expended to prove not just that this President's (two controversial) nominees are worthy of support, but that the Senate's role in confirming nominees should be kept to a minimum? Again, if the Senate were blocking a President hell-bent on nominating "deliberation maintainers" in a Cass Sunstein mold, then the Senate would be responding to the deeper crisis and presumably would be acting under the sign of the higher goal of constitution maintenance. Given that the Senate and Presidency will change hands, it would then seem irresponsible to dismantle the institutional arrangements that can allow Senators to respond to the deeper crisis when circumstances require it.

For Presser, the crisis is not that the Senate is blocking nominees as such. The broader -- and clearly more important crisis -- is that the Senate is blocking nominees who espouse a particular interpretive approach that Presser thinks is the only approach to constitutional interpretation. There's more. Perhaps it is not even true that Owen and Estrada advocate "fidelity to the original understanding of the document": what Presser shows in his article is only that Bush has campaigned on the issue of nominating people with such an approach, not that Estrada and Owen actually have such an approach. What can be said in their favor is that they have been ranked highly by the ABA, that they have good credentials, and that Bush nominated them. I don't see why ABA qualificiations necessarily indicate that judicial nominees espouse a particular interpretive approach; presumably a nominee who didn't espouse "fidelity to the original understanding of the document" could also garner high ratings by the ABA. Perhaps, though, Bush wouldn't nominate people who didn't espouse this approach. If that's true, then what about all of the nominees that the Senate has confirmed? If Bush has been true to his campaign promise, his earlier nominees must also espouse "fidelity to the original understanding of the document." And now they're on the federal bench (over 100 of them).

Probably you can see what I'm getting at here. "Fidelity to the original understanding" folks have a particular understanding of the correct approach to constitutional interpretation, and they see the spread of other approaches as a crisis. The judicial nominations battle imperfectly reflects that crisis, but it's a good time to talk about it nonetheless, partly because Bush has campaigned on a promise to nominate judges who show "fidelity," and because, as everyone knows, this is the run-up to the Supreme Court nominations battles likely to erupt soon. Bush needs to be given as strong a hand possible to follow through on his campaign promises.

I happen to believe that, as an empirical matter, there are multiple sensible approaches to constitutional interpretation. And for the life of me I can't figure out how you could claim that something like "fidelity to the original understanding" explains either all the good cases in American history or even all the cases that Scalia and Thomas have signed off on (such as Bush v. Gore, just to pick an example totally at random). At the very least I can't see how it is reasonable or even sensible to claim that the only people who deserve to be on the federal bench are people who take an originalist approach to constitutional interpretation. Because I'm skeptical here, I can't help but be worried about the inflluence of originalists, especially if I think again about Cass Sunstein's point about group polarization: if it is even slightly reasonable to believe that alternate approaches to constitutional interpretation exist, then it would be imperative, as a self-corrective measure if nothing else, for originalists to focus on the looming problem of group polarization among originalists on the bench.

But this is not the strategy of Professor Presser (or Dean Kmiec). Both are very intelligent men and impressive scholars. If I were running a congressional hearing or a public radio show or any other forum where I thought balance of views was necessary, I would want them to speak. Presser, however, does not feel the same way about non-originalists on the bench. That is a shame. This fact should also be highlighted, because I would hazard a guess that most people are willing to admit that the world is so constituted as to allow for multiple approaches to constitutional interpretation, approaches to which reasonable people can be attracted.

RICK HASEN DESERVES A MEDAL

. . .for his heroic interpretive efforts concerning the mammoth BCRA ruling. See the provisional summary here.

REHNQUIST VERSUS GREENSPAN?

I listened with interest to much of Senator Cornyn's hearing yesterday (although I wasn't there -- see the blow-by-blow account by Lawrence Solum here) and have the following impressions:

• It was clearly an effort to generate support for the principle that simple majority rule should be the standard by which judicial nominations are judged in the Senate. Thus, as I think you can see from Cornyn's op-ed piece yesterday, it was an attempt to engage in constitutional analysis for the purposes of breaking the Senate Democrats' filibuster. Fein's testimony (I think it was him) that put the current struggle in the context of a future Supreme Court battle was on the mark.


• Nonetheless, because the testimony was pretty balanced, it was also very informative and not as one-sided as I had feared simply looking at the testimony list.


• The unconstitutionality of the entrenchment of Rule 22 argument is a bit of a nonstarter, in my opinion, although it will probably generate some heat and some interesting argument. The Blackstonian argument that current parliaments can't bind future parliaments is certainly an interesting argument and it seems to have fascinated a few people, but a few things are important here. If the Senate wants to change Rule 22 (which is old but not inalterable), let them go ahead and do it. Blackstone was arguing that the Senate can do just that if it wants to; I can't see how the Blackstonian argument can be made into a viable attack on Senate rules. And Schumer was not too far off in thinking that an attack on the constitutionality of Rule 22 also leads to an attack on other rules that are not constitutionally mandated. But perhaps I'm missing something here.


• Marcia Greenberger needs to chill out. She was effective at times but also a little too rude for the hearings. I put in these comments to indicate that I can criticize people whose views I like.

Most importantly, I think that the hearing solidified my sense that some more creative thinking is necessary with respect to courts, partisanship, and balance. This is why I like Schumer's proposal.

If you're a political scientist, you're entitled to ask the following question: What really differentiates the DC Circuit Court from the Federal Reserve Board (formal distinctions aside)? Subject matter jurisdiction, constraints on the rulemaking power, and explicit ideological balancing in the membership. But the Fed is also classed, rightly, as an "independent regulatory agency." If you were designing a body that was intended to come to binding decisions about politically contestible issues (in full knowledge of the existence of deeply held views that differ, and the grave danger of ideological capture, either functionally or because of the need for public confidence, or because -- most interestingly perhaps -- you want to be able to disassociate yourself from unpopular decisions made by the body), you probably would choose something more along the lines of the Fed and less along the lines of an Article III court. Where we really need to be looking for models of independence and a focus on adherence to a genuine sense of dedication to duty is probably the independent regulatory agencies, not the federal courts. Greenspan is probably more "independent" than Rehnquist, if "independent" means freer of the tendency to decide based on results predictable with knowledge of some kind of marker like a party label. And anyone who ran for the presidency with a strategy of nominating something like "interest rate reducers" to the Fed would be guilty of injecting partisanship into the situation. I'm still impressed with how willing many analysts are to give Bush a pass on the question of his behavior with respect to the ideologicization of the judiciary.

I'm also reading Cass Sunstein's Designing Democracy (another political science - law crossover thinker [in addition to Ackerman, I mean; I'm not trying to class myself with Sunstein]). Cass Sunstein's discussion of group polarization shows one reason why explicit ideological balancing is a sensible straLike. Like-minded people who engage in deliberation will predictably reach more extreme results than unlike-minded people who engage in deliberation. That's the intuitively appealing reason for something like Schumer's approach. But, again, there is a rhetorical asymmetry in the debate because Republicans believe that they can win on appeals to "the law" and not to "politics," and perhaps they really believe, privately, that this distinction does all the work for them. Nonetheless, they are simply wrong on this score. Reasonable people who care about the law can disagree on what it requires. These disagreements track -- imperfectly, but nonetheless in reasonably predictable fashion -- broader partisan differences. Perhaps parties pick up on the judicial differences, perhaps judges pick up on partisan differences. But however it works causally, the differences are there and they do matter. Given that fact -- something that probably the framers did not really believe was true -- it makes sense to engage in explicit ideological balancing to the extent possible. That's what has happened in the design of independent regulatory agencies, and that's probably what should happen in the design of any new procedure -- if one is needed -- to nominate federal judges. The filibuster would seem to be a good thing under this line of thinking because it tends in the direction of more debate and more input from the opposition party. The blue slip rule, however, might not be so good, although context and motives matter.

MORE: On rule 22, let me just add that if Republicans really want to change it, they should go ahead and do so, and then they will never be entitled to complain when a majority Democratic Senate does things that they dislike intensely. The strategy might make sense politically for Republicans, but I'm sure they also realize that all the population gains in the conservative south and southwest that have led to Republican gains in the House will not help them to hold on to the Senate, and with a very close partisan balance in the Senate currently and for the foreseeable future, a change in Rule 22 would make the Senate look more Blackstonian than they might want.

MORE: In my haste to get the above post out, I wrote something that seemed to imply that judges don't have an "adherence to a genuine sense of dedication to duty." That statement was not intended as an attack on judges. Instead, what I meant was that if you're designing an institution that will produce ideological balance in opinions, you should look to the design of independent regulatory agencies. If non-partisanship is a duty of judges, then what is needed are institutions that will constrain partisanship explicitly. Article III courts don't do that all that well.

QUOTE OF THE DAY

Senator Durbin at Cornyn's hearing today:

"We're playing ping-pong above the table and rolling bowling balls at each other below the table."

LISTENING LIVE

I'm listening to the testimony at Senator Cornyn's hearing. The official notice is here, and you can listen here. Links from How Appealling.

The editorial by Cornyn (also linked by HA), in which he sets out the rhetorical groundwork for this hearing, gives me pause, though. Here's one key paragraph:

The essence of our democratic system of government is beautiful in its simplicity: Majorities must be permitted to govern. As our nation's Founders explained in Federalist No. 22, "the fundamental maxim of republican government . . . requires that the sense of the majority should prevail." And as the Supreme Court has unanimously held, our Constitution is premised on the democratic doctrine of majority rule.

If the purpose of the hearings is to create pressure for majority rule in the Senate with respect to judicial nominations, I suppose it's not that objectionable as such, even though it's clear where the partisan gains here lie -- and it's reasonable to question whether Cornyn is truly devoted to the principle of majority rule or to the immediate partisan gains to be had. It's an odd paragraph nonetheless. (In the hearing, Cornyn also just referred to "the Constitution's doctrine of majority rule for confirmation of judges.") First of all, if you look at the argument in Federalist 22, you'll see that Hamilton is attacking the very kind of representation of states that was the organizing principle of both the Confederation congress andthe Senate itself. You can certainly contain the idea of majority rule with reference to traditions and constitutional text, but that's a pretty fancy move and it's not clear what the outer boundaries of that move are from the outset. More fundamentally, the "essence" of our constitutional system is not that "majorities should be permitted to govern." Cornyn is rolling out the big guns. But if that's the essence, then what about the Senate, the electoral college, and all the elaborate procedures to check majority rule and to make legislation difficult? [By the way: these are the kinds of things that Robert Dahl, for example, is consistent enough to argue are actually undemocratic, as his recent book notes. Is Cornyn going to go that far? If not, why not?] Cornyn has overreached here, as (I hope) anyone who has taken GOVT101 will know. What I fear is up here is an attempt to enlist as many arguments as possible in favor of an attack on the very narrow practice of Senate Democrat filibuster of Bush's current judicial nominations.

Another thing is odd about Cornyn's piece. Look at how he characterizes Senator Schumer's proposal:

Sen. Charles Schumer advocates an overhaul of the nomination process by eliminating the president's appointment power and instead giving President Bush and Sen. Daschle "equal roles in picking the judge-pickers."

This is a weasel argument and Cornyn should know it. As far as I understand Schumer's argument, he wants to set up a process that would provide for consultation between the Senate and the President. Schumer's proposals are apparently so threatening to Cornyn that he can't even characterize them fairly. And it seems to me that the source of the threat is clear: Schumer's position all along has been that judicial ideology is an intelligible concept that is already being used in the nominations process, and that the best way to deal with this is to talk about it openly and devise proposals to provide for explicit ideological balancing. Schumer's position would take away one of the powerful rhetorical weapons in the Republican arsenal: their ability to claim that they only care about the "rule of law" and are only trying to rip judicial power away from liberal judges who habitually overreach. The rule of law is important, but one needs to be attentive to how underdetermining the reference to the "rule of law" is (as Jack Balkin notes in a post -- permanlinks busted -- in reply to Lawrence Solum's post here).

CONGRATS TO MY SISTER

She (Heidi Marston, for the googlers) won a travelling scholarship for her work in the 5th year show at the School of the Museum of Fine Arts in Boston. She'll use the scholarship to go to Argentina. Her work will also be featured in an exhibit at the Museum.

Look at her work here.

BARK ANTONY

. . .Anita sent me this. Poor little guy does not look happy.

DOJ UNDER ASHCROFT

Talk Left has this story about Ashcroft's attempts to monitor communications between DOJ staff and members of Congress.

I've been reading Steven Brill's After, which I highly recommend and which I plan to say something more about later. But for now, suffice it to say that Brill's picture of Ashcroft is hardly complimentary. Ashcroft comes off as simply a mean guy who cannot resist putting himself in the spotlight in order to call attention to his own efforts. Probably Ashcroft was a better Senator than Attorney General (and take that as you will). . .

JUST WHAT IS A STRAUSSIAN, ANYWAY?

Take a look at Josh Cherniss's post critiquing this NYT piece on Leo Strauss's supposed influence on the Bush White House. My understanding of Strauss, for what it's worth, is pretty much in line with the last two paragraphs of Josh's post. But people can obviously differ here. I find it hard to see how any particular political direction is indicated by Strauss's writings, even though many people who are called Straussians are conservative. I know people who have grappled with Strauss who are both Democrats and Republicans, however, and who I imagine would take a variety of positions on the foreign policy of the Bush administration. One example would be the prominent centrist Bill Galston, who was -- wait for it -- an advisor to none other than Bill Clinton. Hmmm.

WHAT JUDICIAL NOMINATIONS CRISIS?

See the post -- an anonymous e-mail -- at How Appealling, here, which argues that the nominations process is actually working "swimmingly." I feel vindicated: see here.

BCRA CHALLENGE

I've got the four-page "Chart of the Court's ruling" from the recent blob of an opinion issued in the BCRA case this week taped up on the wall in front of my desk. I couldn't download all the opinions when I first got them because my e-mail server balked at the huge file sizes. But that doesn't really matter, since I'm hardly going to spend the next week of my life sifting through sixteen hundred pages of argument, even if they are double-spaced. I have been trying to follow the discussions at Rick Hasen's blog, however; he is an excellent guide to the issues.

One thing that a political scientist might ask about the case is why Judge Henderson's name is always in the "unconstitutional" or "nonjusticiable" column, and why Judge Kollar-Kotelly's name is almost always in the "constitutional" column. According to my chart, Judge Henderson only thought that one part of the act could withstand constitutional scrutiny: section 323(e). Kollar-Kotelly was willing to find some parts of the act unconstitutional: 201 subsection (5), and sections 213, 318, and 504. And Judge Leon was just all over the map.

It can't be the case that "the law" dictates the result here, can it? (I'm reminded of the joke you occassionally hear that runs along the following lines: ask 2 [whatever kind of talkative and sophisticated person you choose] and you'll get 3 opinions.) Unless one or more of the judges is clearly a hack, I think you'd have to admit that these are issues that can be decided by reasonable people -- and people who are faithfully performing the function that the legal culture assigns to them -- in different and mutually exclusive ways. But the grooves of opinion here are not random. They're well-worn, developed by thoughtful people in relatively predictable ways that match up in a relatively predictable fashion with other positions that are associated with political parties. The match may not be perfect, but it's not entirely imperfect, either.

NGO'S IN GEORGIA AND AZERBIJAN

The CACI Analyst is reporting that Georgia and Azerbijan have used the war on terrorism as an excuse to restrict the activities of NGO's operating within their borders. Read the article here. The legal moves in Georgia have been Kafkaesque:

[T]he government circulated the draft Law on Charity, Grants, and Humanitarian Assistance, which eventually morphed into the draft Law on Grants and Humanitarian Assistance. The latter draft law would have cancelled the existing law and established state control over the utilization of grants. NGOs and reform-minded parliamentarians managed to scuttle passage of the law; however, a little over a year later, the Ministry of State Security circulated a new draft law entitled, “On the Suspension of Activities, Liquidation, and Banning of Extremist Organizations and Organizations under Foreign Control.” The new law, if passed, would suspend, liquidate, or ban any organization under direct or indirect foreign control, including receiving funding, that “aimed at damaging the interests of Georgia.” The draft law does not define the “interests of Georgia” nor does it establish criteria for a definition. Moreover, the draft law states that court decisions to suspend or terminate an organization’s activities can be appealed “based on Georgian legislation;” however, no legislation currently exists that would allow an appeal. If the court decision is revoked, the draft law provides for the state to compensate for damages, but sets out no procedure for doing so.