Geoffrey R. Stone's Blog, page 2
April 3, 2016
Criminals or Victims? Donald Trump and the Anti-Abortion Puzzle
The furor over Donald Trump's comments this week about punishing women who have abortions raised an interesting question. Trump asserted that, if abortion were once again made a crime, women who have abortions should be punished. Trump was simply being logical. It is standard practice under the criminal law that a person who commits a crime, who conspires with others to commit a crime, or who pays others to commit a crime, is guilty of a crime. In simplest form, if X pays Y to kill Z, X is guilty of a crime. Trump was just extending that common-sense rule to the context of abortion.
That pro-choice groups vehemently attacked Trump's assertion was predictable and understandable, because they are committed to the view that women have a fundamental personal and constitutional right to terminate an unwanted pregnancy. What was puzzling, though, is that he was also vehemently attacked by the anti-abortion forces and by members of the Christian Right.
This is puzzling because if abortion is murder of a human life then it logically follows, as Trump suggested, that the woman is guilty of a crime when she is complicit in murdering her unborn child. Why then did the anti-abortion forces attack Trump?
One possible explanation for the seeming inconsistency among the anti-abortion forces is that they are simply political hypocrites. They condemn abortion, but not to the extent of having the courage or consistency of their convictions. But there is another, and even more disturbing, explanation. This alternative explanation was evident in Trump's revised position, in which he declared that the woman who has an abortion should not be punished because she "is a victim." Ted Cruz echoed this same explanation, as did Dr. Ben Carson, who explained: "The woman is the victim. She's traumatized emotionally and in many other ways that's problematic. In terms of who should be punished, that women has already been punished."
The point, in other words, is that the woman who has an abortion should not be punished because she has suffered enough. But would they say this about a woman who pays someone to kill her four-month-old child? I rather doubt it. To understand where this rather perverse notion comes from, a little history may be enlightening.
In England in the centuries before the founding of the American nation, abortion was legal as long as it took place before quickening (when the mother first feels fetal movement in her uterus), which typically occurs at around eighteen weeks, or roughly halfway through a pregnancy. The prevailing view was that the fetus was not "ensouled" until quickening. As the great English scholar William Blackstone observed in 1765, human life "begins in contemplation of law" only after the "infant is able to stir" in the woman's womb.
After the Revolution, the American states universally adopted this position, and abortion was legal in the United States at any time prior to quickening. Through the middle of the Nineteenth Century, abortifacients were widely available from mail-order firms and pharmacists, several generally available books offered instruction on how to terminate a pregnancy, and daily newspapers regularly ran ads for products that promised to "cure" pregnancy - a euphemism for terminating a pregnancy. By the 1870s, approximately twenty percent of all pregnancies were purposefully terminated.
But then the moralists moved in. During the evangelical fervor of the Second Great Awakening in the 1830s, Protestant understandings of the fetus began to change. Abandoning the traditional view, evangelicals now preached that a separate and distinct life came into being at the instant of conception.
This shift in religious perspective was reinforced by the conclusion of some medical professionals, based partly on religion and partly on science, that life begins at conception. In 1839, for example, Dr. Hugh Lenox Hodge published a pamphlet in which he confidently asserted that embryos could think and could perceive right and wrong.
The most influential voice in this transformation was that of the Boston gynecologist Horatio Storer, who published a highly influential essay in 1865 titled Why Not? A Book for Every Woman. In this essay, Storer made essentially two arguments against abortion. First, he maintained that "the fetus in utero is alive from the very moment of conception," and that it therefore followed that for a woman "to extinguish the first spark of life is a crime of the same nature, both against our Maker and society, as to destroy an infant, a child, or a man."
Second, Storer argued that abortion is "a thousand times more dangerous" to the woman than childbirth. He maintained that many women who have an abortion "become confirmed invalids, perhaps for life," and develop "serious and often fatal organic disease." Some die, either immediately or later, as a result of "moral shock from the thought of the crime," whereas others, he declared, are driven to insanity.
Storer emphatically rejected the proposition that the woman should be able to decide this question for herself, noting that if she were given this responsibility "her decision . . . would be . . . warped by personal considerations," particularly because, during pregnancy, "woman's mind is prone to depression, and, indeed, to temporary actual derangement, under the stimulus of uterine excitement."
Influenced by the combination of religious and pseudo-medical positions, by the dawn of the Twentieth Century, every state had enacted legislation absolutely prohibiting abortion from the very moment of conception unless a doctor certified that it was necessary to save the life of the woman. Despite these laws, as many as two million women still had abortions each year, and almost a third of all pregnancies ended in abortion. But because of these laws, these abortions now had to be performed illegally, in less safe circumstances, and by less reliable practitioners than in the past. The era of the "back-alley" abortion had been born.
The point of this bit of history is that it explains why the anti-abortion forces insist that, even if abortion were illegal, women who have abortions should not be criminally punished. It is because, as Ben Carson, echoing Horatio Storer, explained, when a woman has an abortion, she is a victim. She is so "traumatized emotionally" that there is no need for any further punishment.
This view of the anti-abortion forces is horrifically paternalistic, insulting and demeaning to women. It is based on the perverted premise that every woman who chooses to have an abortion is making a decision based inescapably on "temporary mental derangement" and will suffer dire emotional, psychological, and sexual trauma for the rest of her life.
The best answer to this patronizing way of thinking was offered by Justice Ruth Bader Ginsburg in her dissenting opinion in the Supreme Court's 2006 decision in Gonzales v. Carhart, in which the Court, in a five-to-four, decision, upheld the constitutionality of a law forbidding so-called partial-birth abortion. In his majority opinion, Justice Anthony Kennedy suggested, without any evidence, that women who have abortions have a fragile emotional state, come to regret their choices, and suffer from "severe depression and loss of esteem."
A furious Justice Ginsburg responded that this was "an antiabortion shibboleth" which had no support in reality. "This way of thinking," Ginsburg charged, "reflects ancient notions about women's place in the family--ideas that have long been discredited." Ginsburg concluded that, though the majority "may regard women's feelings on the matter as self-evident," the Court has repeatedly confirmed over the years that "the destiny of the woman must be shaped by her own conception of her spiritual imperatives and her place in society."
What is most offensive about the Trump, Cruz, Carson, anti-abortion contention that women who have abortions are "victims" is that it is profoundly dishonest and insulting to the dignity and integrity of women. They should be ashamed.
That pro-choice groups vehemently attacked Trump's assertion was predictable and understandable, because they are committed to the view that women have a fundamental personal and constitutional right to terminate an unwanted pregnancy. What was puzzling, though, is that he was also vehemently attacked by the anti-abortion forces and by members of the Christian Right.
This is puzzling because if abortion is murder of a human life then it logically follows, as Trump suggested, that the woman is guilty of a crime when she is complicit in murdering her unborn child. Why then did the anti-abortion forces attack Trump?
One possible explanation for the seeming inconsistency among the anti-abortion forces is that they are simply political hypocrites. They condemn abortion, but not to the extent of having the courage or consistency of their convictions. But there is another, and even more disturbing, explanation. This alternative explanation was evident in Trump's revised position, in which he declared that the woman who has an abortion should not be punished because she "is a victim." Ted Cruz echoed this same explanation, as did Dr. Ben Carson, who explained: "The woman is the victim. She's traumatized emotionally and in many other ways that's problematic. In terms of who should be punished, that women has already been punished."
The point, in other words, is that the woman who has an abortion should not be punished because she has suffered enough. But would they say this about a woman who pays someone to kill her four-month-old child? I rather doubt it. To understand where this rather perverse notion comes from, a little history may be enlightening.
In England in the centuries before the founding of the American nation, abortion was legal as long as it took place before quickening (when the mother first feels fetal movement in her uterus), which typically occurs at around eighteen weeks, or roughly halfway through a pregnancy. The prevailing view was that the fetus was not "ensouled" until quickening. As the great English scholar William Blackstone observed in 1765, human life "begins in contemplation of law" only after the "infant is able to stir" in the woman's womb.
After the Revolution, the American states universally adopted this position, and abortion was legal in the United States at any time prior to quickening. Through the middle of the Nineteenth Century, abortifacients were widely available from mail-order firms and pharmacists, several generally available books offered instruction on how to terminate a pregnancy, and daily newspapers regularly ran ads for products that promised to "cure" pregnancy - a euphemism for terminating a pregnancy. By the 1870s, approximately twenty percent of all pregnancies were purposefully terminated.
But then the moralists moved in. During the evangelical fervor of the Second Great Awakening in the 1830s, Protestant understandings of the fetus began to change. Abandoning the traditional view, evangelicals now preached that a separate and distinct life came into being at the instant of conception.
This shift in religious perspective was reinforced by the conclusion of some medical professionals, based partly on religion and partly on science, that life begins at conception. In 1839, for example, Dr. Hugh Lenox Hodge published a pamphlet in which he confidently asserted that embryos could think and could perceive right and wrong.
The most influential voice in this transformation was that of the Boston gynecologist Horatio Storer, who published a highly influential essay in 1865 titled Why Not? A Book for Every Woman. In this essay, Storer made essentially two arguments against abortion. First, he maintained that "the fetus in utero is alive from the very moment of conception," and that it therefore followed that for a woman "to extinguish the first spark of life is a crime of the same nature, both against our Maker and society, as to destroy an infant, a child, or a man."
Second, Storer argued that abortion is "a thousand times more dangerous" to the woman than childbirth. He maintained that many women who have an abortion "become confirmed invalids, perhaps for life," and develop "serious and often fatal organic disease." Some die, either immediately or later, as a result of "moral shock from the thought of the crime," whereas others, he declared, are driven to insanity.
Storer emphatically rejected the proposition that the woman should be able to decide this question for herself, noting that if she were given this responsibility "her decision . . . would be . . . warped by personal considerations," particularly because, during pregnancy, "woman's mind is prone to depression, and, indeed, to temporary actual derangement, under the stimulus of uterine excitement."
Influenced by the combination of religious and pseudo-medical positions, by the dawn of the Twentieth Century, every state had enacted legislation absolutely prohibiting abortion from the very moment of conception unless a doctor certified that it was necessary to save the life of the woman. Despite these laws, as many as two million women still had abortions each year, and almost a third of all pregnancies ended in abortion. But because of these laws, these abortions now had to be performed illegally, in less safe circumstances, and by less reliable practitioners than in the past. The era of the "back-alley" abortion had been born.
The point of this bit of history is that it explains why the anti-abortion forces insist that, even if abortion were illegal, women who have abortions should not be criminally punished. It is because, as Ben Carson, echoing Horatio Storer, explained, when a woman has an abortion, she is a victim. She is so "traumatized emotionally" that there is no need for any further punishment.
This view of the anti-abortion forces is horrifically paternalistic, insulting and demeaning to women. It is based on the perverted premise that every woman who chooses to have an abortion is making a decision based inescapably on "temporary mental derangement" and will suffer dire emotional, psychological, and sexual trauma for the rest of her life.
The best answer to this patronizing way of thinking was offered by Justice Ruth Bader Ginsburg in her dissenting opinion in the Supreme Court's 2006 decision in Gonzales v. Carhart, in which the Court, in a five-to-four, decision, upheld the constitutionality of a law forbidding so-called partial-birth abortion. In his majority opinion, Justice Anthony Kennedy suggested, without any evidence, that women who have abortions have a fragile emotional state, come to regret their choices, and suffer from "severe depression and loss of esteem."
A furious Justice Ginsburg responded that this was "an antiabortion shibboleth" which had no support in reality. "This way of thinking," Ginsburg charged, "reflects ancient notions about women's place in the family--ideas that have long been discredited." Ginsburg concluded that, though the majority "may regard women's feelings on the matter as self-evident," the Court has repeatedly confirmed over the years that "the destiny of the woman must be shaped by her own conception of her spiritual imperatives and her place in society."
What is most offensive about the Trump, Cruz, Carson, anti-abortion contention that women who have abortions are "victims" is that it is profoundly dishonest and insulting to the dignity and integrity of women. They should be ashamed.
Criminals or Victims? Donald Trump and the Anti-Abortion Puzzle
What is most offensive about the Trump, Cruz, Carson, anti-abortion contention that women who have abortions are "victims" is that it is profoundly dishonest and insulting to the dignity and integrity of women. They should be ashamed.
March 19, 2016
The Supreme Court and the Republican Coup D'��tat
In 2005, President George W. Bush nominated John Roberts to succeed Justice Sandra Day O'Connor. At this time, Justice O'Connor was the Court's pivotal "swing" Justice. In many of the Court's most important cases, she cast the deciding vote. Moreover, she generally leaned left on such controversial issues as abortion, the rights of gays and lesbians, affirmative action, and campaign finance reform. There was thus little doubt that, if confirmed, John Roberts, who was well-known for his conservative views, would move the Court significantly to the right.
As a liberal, this did not make me happy. Nonetheless, after some reflection, I published an op-ed in the Chicago Tribune calling on Democratic senators, and on liberals generally, to "sheathe their swords" and to support the President's nomination. Although I fully understood the impact Roberts' confirmation would have on the Court, I nonetheless endorsed his confirmation.
I explained in the op-ed that, although Roberts had established himself as a "dyed-in-the-wool conservative," unlike Justices Antonin Scalia and Clarence Thomas he was not "ideologically rigid." I applauded Roberts for being a "good lawyer" and a "good craftsman," and I predicted that, based on his past record, he would be "a principled, pragmatic justice" who could be expected to "act cautiously and with a healthy respect for precedent."
I therefore reasoned that, although Roberts definitely would not have been my choice for the Supreme Court, he was a well-qualified, moderately-conservative nominee who should be confirmed. More precisely, I concluded: "Of course, the Senate must fulfill its constitutional responsibility to interrogate the nominee to ensure that he is, in fact, the person I have described. But if he is, he should be warmly embraced as the best the nation could expect from this administration -- a brilliant, decent individual with superb legal skills and without a rigid ideological agenda."
This is the approach that every principled and responsible member of the Senate should take to the Supreme Court confirmation process. If a nominee is well-qualified and reasonably moderate, the Senate should confirm. Period. That's what "advice-and-consent" means. It serves as a check against the possibility that a President will abuse his authority and appoint an individual who is unqualified, who has serious ethical issues, or whose views are out of the "mainstream" of legal thought. But if the nominee is well-qualified and reasonably moderate in his views, the responsibility of the Senate is to confirm.
Indeed, this is precisely the approach the Senate has taken to every well-qualified and reasonably moderate nominee for over half-a-century. Every such nominee, ranging from Lewis Powell to John Paul Stevens to Sandra Day O'Connor to David Souter to Harry Blackmun to Stephen Breyer to John Roberts to Elena Kagan has - without a single exception - been confirmed. This is the well-settled meaning of "advice and consent."
And that brings me to Merrick Garland. Based on his record of achievement throughout his illustrious career, and particularly during his nineteen years as a judge on the United States Court of Appeals, no serious person has any doubt about Judge Garland's intellect, his character, his generosity of spirit, his respect for precedent, or the moderate nature of his views. Although he leans in a liberal direction, he is never doctrinaire, never ideological, and never disrespectful of competing positions.
He is, indeed, almost perfectly analogous to the John Roberts I commended for confirmation a little more than a decade ago. Although there are liberals who are disappointed that President Obama did not nominate someone more in the spirit of a William Brennan or a Thurgood Marshall, Merrick Garland is an exceptional choice.
But Senate Republicans, led by the likes of Mitch McConnell and Charles Grassley, refuse even to consider his nomination. The explanation they offer - that the Senate should not consider a Supreme Court nomination made in the last year of a President's term - is nothing short of ludicrous. Although such nominations do not come along very often, there is absolutely no tradition or practice that supports such an approach. To the contrary, over the course of the last century almost every such nomination has been confirmed without fuss.
McConnell and Grassley maintain that the "People" should be allowed to decide the makeup of the Supreme Court in the coming presidential election. But the plain and simple fact is that the People have already decided this issue when they elected - and then reelected - Barack Obama as President of the United States. Mitch McConnell's fervent desire to the contrary, President Obama is the duly-elected President of the United States. It is his responsibility to nominate a Justice to fill the current vacancy, and it is the Senate's responsibility to consider that nomination in a timely and responsible manner that is consistent with our well-established traditions.
Of course, the real reason for the McConnell-Grassley position has nothing at all to do with the fact that the nomination comes in the final year of President Obama's term. It is inconceivable, for example, that they would take this position in the final year of, say, President Mitt Romney's term of office. What we are dealing with here is rank hypocrisy.
The real reason for the intransigence of the Senate Republicans is that if Judge Garland were to succeed Justice Antonin Scalia on the Court, his appointment would move the Court in a more liberal direction. It would move the Court more or less back to the place it was at ten years ago, before the appointment of the very conservative Samuel Alito moved the Court appreciably to the right and enabled it either to eviscerate or to overrule many of the decisions on which the more moderate Justice O'Connor had previously leaned left.
It is perfectly understandable that Senate Republicans want the Supreme Court to mirror their views and do their bidding. But that is not a constitutionally legitimate reason for the Senate to refuse to confirm a well-qualified and reasonably moderate nominee. Indeed, it is noteworthy that of the sixteen Supreme Court justices who have been confirmed since 1967, eight of them substantially altered the ideological balance on the Court.
These eight pivotal appointments since 1967 were Warren Burger for Earl Warren, Lewis Powell for Hugo Black, Harry Blackmun for Abe Fortas, William Rehnquist for John Harlan, John Paul Stevens for William Douglas, David Souter for William Brennan, Clarence Thomas for Thurgood Marshall, and Samuel Alito for Sandra Day O'Connor. (Alito, rather than Roberts, succeeded O'Connor, because while Roberts' confirmation was pending Chief Justice Rehnquist died and President Bush switched gears and nominated Roberts to be Chief Justice).
It is striking, by the way, that every one of the eight Justices whose confirmations had a substantial impact on the ideological makeup of the Supreme Court in almost half-a-century was nominated by a Republican president, and every one of them moved the Court in a more conservative direction. It is largely for that reason that the Court is more conservative today than at any time in almost a century.
Now, for the first time since 1967, a nominee put forward by a Democratic president might actually move the Court in an appreciably more liberal direction, and what happens - the Senate Republicans have a conniption! To make matters even worse, the nominee is only moderately liberal. The shift in the Court is due not to the judicial philosophy of Merrick Garland, but to the fact that he would replace one of the most rigidly conservative Justices in Supreme Court history.
McConnell, Grassley, and their cronies may not like the hand they have been dealt, but it is not their business to disregard well-established tradition. The plain and simple fact is that Merrick Garland is a well-qualified and reasonably moderate nominee. There is no principled or legitimate justification for refusing to consider - or to confirm - his nomination.
It is time for the Senate Republicans to back off and to act like responsible grownups who recognize that they have a solemn obligation to act according to the rule of law. If they don't like that, then perhaps they should just resign their positions and let the nation get on with its business. If they move forward with their cynical and hypocritical plan, they will be guilty of a coup d'état of epic proportions.
As a liberal, this did not make me happy. Nonetheless, after some reflection, I published an op-ed in the Chicago Tribune calling on Democratic senators, and on liberals generally, to "sheathe their swords" and to support the President's nomination. Although I fully understood the impact Roberts' confirmation would have on the Court, I nonetheless endorsed his confirmation.
I explained in the op-ed that, although Roberts had established himself as a "dyed-in-the-wool conservative," unlike Justices Antonin Scalia and Clarence Thomas he was not "ideologically rigid." I applauded Roberts for being a "good lawyer" and a "good craftsman," and I predicted that, based on his past record, he would be "a principled, pragmatic justice" who could be expected to "act cautiously and with a healthy respect for precedent."
I therefore reasoned that, although Roberts definitely would not have been my choice for the Supreme Court, he was a well-qualified, moderately-conservative nominee who should be confirmed. More precisely, I concluded: "Of course, the Senate must fulfill its constitutional responsibility to interrogate the nominee to ensure that he is, in fact, the person I have described. But if he is, he should be warmly embraced as the best the nation could expect from this administration -- a brilliant, decent individual with superb legal skills and without a rigid ideological agenda."
This is the approach that every principled and responsible member of the Senate should take to the Supreme Court confirmation process. If a nominee is well-qualified and reasonably moderate, the Senate should confirm. Period. That's what "advice-and-consent" means. It serves as a check against the possibility that a President will abuse his authority and appoint an individual who is unqualified, who has serious ethical issues, or whose views are out of the "mainstream" of legal thought. But if the nominee is well-qualified and reasonably moderate in his views, the responsibility of the Senate is to confirm.
Indeed, this is precisely the approach the Senate has taken to every well-qualified and reasonably moderate nominee for over half-a-century. Every such nominee, ranging from Lewis Powell to John Paul Stevens to Sandra Day O'Connor to David Souter to Harry Blackmun to Stephen Breyer to John Roberts to Elena Kagan has - without a single exception - been confirmed. This is the well-settled meaning of "advice and consent."
And that brings me to Merrick Garland. Based on his record of achievement throughout his illustrious career, and particularly during his nineteen years as a judge on the United States Court of Appeals, no serious person has any doubt about Judge Garland's intellect, his character, his generosity of spirit, his respect for precedent, or the moderate nature of his views. Although he leans in a liberal direction, he is never doctrinaire, never ideological, and never disrespectful of competing positions.
He is, indeed, almost perfectly analogous to the John Roberts I commended for confirmation a little more than a decade ago. Although there are liberals who are disappointed that President Obama did not nominate someone more in the spirit of a William Brennan or a Thurgood Marshall, Merrick Garland is an exceptional choice.
But Senate Republicans, led by the likes of Mitch McConnell and Charles Grassley, refuse even to consider his nomination. The explanation they offer - that the Senate should not consider a Supreme Court nomination made in the last year of a President's term - is nothing short of ludicrous. Although such nominations do not come along very often, there is absolutely no tradition or practice that supports such an approach. To the contrary, over the course of the last century almost every such nomination has been confirmed without fuss.
McConnell and Grassley maintain that the "People" should be allowed to decide the makeup of the Supreme Court in the coming presidential election. But the plain and simple fact is that the People have already decided this issue when they elected - and then reelected - Barack Obama as President of the United States. Mitch McConnell's fervent desire to the contrary, President Obama is the duly-elected President of the United States. It is his responsibility to nominate a Justice to fill the current vacancy, and it is the Senate's responsibility to consider that nomination in a timely and responsible manner that is consistent with our well-established traditions.
Of course, the real reason for the McConnell-Grassley position has nothing at all to do with the fact that the nomination comes in the final year of President Obama's term. It is inconceivable, for example, that they would take this position in the final year of, say, President Mitt Romney's term of office. What we are dealing with here is rank hypocrisy.
The real reason for the intransigence of the Senate Republicans is that if Judge Garland were to succeed Justice Antonin Scalia on the Court, his appointment would move the Court in a more liberal direction. It would move the Court more or less back to the place it was at ten years ago, before the appointment of the very conservative Samuel Alito moved the Court appreciably to the right and enabled it either to eviscerate or to overrule many of the decisions on which the more moderate Justice O'Connor had previously leaned left.
It is perfectly understandable that Senate Republicans want the Supreme Court to mirror their views and do their bidding. But that is not a constitutionally legitimate reason for the Senate to refuse to confirm a well-qualified and reasonably moderate nominee. Indeed, it is noteworthy that of the sixteen Supreme Court justices who have been confirmed since 1967, eight of them substantially altered the ideological balance on the Court.
These eight pivotal appointments since 1967 were Warren Burger for Earl Warren, Lewis Powell for Hugo Black, Harry Blackmun for Abe Fortas, William Rehnquist for John Harlan, John Paul Stevens for William Douglas, David Souter for William Brennan, Clarence Thomas for Thurgood Marshall, and Samuel Alito for Sandra Day O'Connor. (Alito, rather than Roberts, succeeded O'Connor, because while Roberts' confirmation was pending Chief Justice Rehnquist died and President Bush switched gears and nominated Roberts to be Chief Justice).
It is striking, by the way, that every one of the eight Justices whose confirmations had a substantial impact on the ideological makeup of the Supreme Court in almost half-a-century was nominated by a Republican president, and every one of them moved the Court in a more conservative direction. It is largely for that reason that the Court is more conservative today than at any time in almost a century.
Now, for the first time since 1967, a nominee put forward by a Democratic president might actually move the Court in an appreciably more liberal direction, and what happens - the Senate Republicans have a conniption! To make matters even worse, the nominee is only moderately liberal. The shift in the Court is due not to the judicial philosophy of Merrick Garland, but to the fact that he would replace one of the most rigidly conservative Justices in Supreme Court history.
McConnell, Grassley, and their cronies may not like the hand they have been dealt, but it is not their business to disregard well-established tradition. The plain and simple fact is that Merrick Garland is a well-qualified and reasonably moderate nominee. There is no principled or legitimate justification for refusing to consider - or to confirm - his nomination.
It is time for the Senate Republicans to back off and to act like responsible grownups who recognize that they have a solemn obligation to act according to the rule of law. If they don't like that, then perhaps they should just resign their positions and let the nation get on with its business. If they move forward with their cynical and hypocritical plan, they will be guilty of a coup d'état of epic proportions.
The Supreme Court and the Republican Coup D'état
Although there are liberals who are disappointed that President Obama did not nominate someone more in the spirit of a William Brennan or a Thurgood Marshall, Merrick Garland is an exceptional choice. But Senate Republicans, led by the likes of Mitch McConnell and Charles Grassley, refuse even to consider his nomination.
March 16, 2016
Donald Trump, Protest, and the First Amendment
Questions have arisen in recent days about whether Donald Trump, his supporters, and his opponents have acted in ways that either violate the First Amendment or can be punished consistent with the First Amendment. Here are some questions and answers.
March 10, 2016
An Unprecedented Breach of Norms by Senate Republicans
A distinguished group of legal scholars, political scientists and presidential historians (including me) from across the political spectrum has written to President Obama to affirm that if the Senate Republicans carry through on their threat to deny the President's Supreme Court nominee a fair confirmation hearing they will be acting in a manner that is both unprecedented and unconstitutional:
Dear Mr. President:
We write to you as scholars of American history, politics, and the law. We express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with 11 months to serve in the position. We believe the idea that a "lame duck" president should not submit a nominee when there is a vacancy on the highest court in the land is a novel and absurd notion, as is the claim that for 80 years or more, no Supreme Court vacancy occurring in an election year has been filled before the election.
In fact it is standard practice when a vacancy occurs on the Supreme Court to have a president, whatever the stage in his term, to nominate a successor and have the Senate consider it. And standard practice (with limited exception) has been for the Senate, after hearings and deliberation, to confirm the president's choice, regardless of party control, when that choice is deemed acceptable to a Senate majority. The most recent example, of course, is Justice Anthony Kennedy, confirmed by a Senate with a Democratic Party majority in February of 1988, during President Ronald Reagan's last year. It is true that Kennedy was nominated in November, 1987, but that is irrelevant--and, of course, the Senate commendably expedited the time between nomination and confirmation despite the election ahead.
The claims of an 80-year precedent by Republican Senate leaders are artfully phrased deliberately to exclude the current situation, which itself is new: it is rare for a justice to die in office, and even more rare for that to happen in a presidential election year. History, however, is replete with instances where a vacancy on the Supreme Court was filled during a presidential election year. In 1912, a nominee of President Taft was confirmed to fill the vacancy created by the death of John Marshall Harlan; in 1916, Woodrow Wilson had two nominees confirmed by the Senate; in 1932, President Hoover had a nominee confirmed after Oliver Wendell Holmes retired; FDR had another vacancy filled with confirmation by the Senate in 1940.
President Eisenhower picked William Brennan in 1956 to fill a vacancy and used his recess appointment power to install Brennan, who was subsequently confirmed by a Senate controlled by Democrats in 1957. It is important to note that there was no objection to Eisenhower's use of the recess appointment--there was instead a widespread recognition that it was bad to have a Supreme Court operate for months without its full complement of nine members.
True, Lyndon Johnson's nomination of Abe Fortas to be Chief Justice, made in 1968, was blocked by the Senate via an extended filibuster. But there was at the time no vacancy on the Court; Chief Justice Warren stayed on until his successor could be confirmed, and Fortas was an associate justice. While some senators did object to Fortas on the grounds that it was an election year, most of the objections were based on ideology and ethical considerations. And it is important to note that the Fortas nomination was considered by the Senate and there were votes on the floor, even if those were votes on cloture.
Divided government can bring sharp differences of opinion about the qualifications and character of nominees to the Supreme Court. But consider the precedent set by a Democratic Senate with the highly contentious nomination of Clarence Thomas. The Senate Judiciary Committee deadlocked 7-7 on his nomination--but instead of letting the nomination die, the committee voted 13-1 to allow the full Senate to make the decision. Thomas ultimately was confirmed by a narrow margin with no filibuster.
If we accept the logic that decisions made by "lame duck" presidents are illegitimate or are to be disregarded until voters make their choice in the upcoming election, that begs both the questions of when lame duck status begins (after all, a president is technically a "lame duck" from the day of inauguration), and why senators up for reelection at the same time should not recuse themselves from decisions until the voters have decided whether to keep them or their partisans in office.
It is technically in the power of the Senate to engage in aggressive denial on presidential nominations. But we believe that the Framers' construction of the process of nominations and confirmation to federal courts, including the Senate's power of "advice and consent," does not anticipate or countenance an obdurate refusal by the body to acknowledge or consider a president's nominee, especially to the highest court in the land. The refusal to hold hearings and deliberate on a nominee at this level is truly unprecedented and, in our view, dangerous.
We are well aware that politics intervenes when judicial nominations are made, and increasingly reflect the broader partisan and ideological polarization in American politics. We do not believe any party is without blame. But we also recognize that confirmation at all levels of the federal judiciary has been increasingly driven by partisan obstructionism, which has reached a peak during the Obama presidency. The refusal by the Republican Senate to confirm any nominees to the D.C. Circuit Court of Appeals is the poster child for that phenomenon.
The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate's best practices and noblest traditions for much of our nation's history.
Respectfully,
Vikram David Amar
Dean and Iwan Foundation Professor of Law
University of Illinois College of Law
Sarah Binder
Senior Fellow, Governance Studies
Brookings Institution
Professor of Political Science
George Washington University
Erwin Chemerinsky
Dean of the School of Law
Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine
Robert Dallek
Emeritus Professor, History
University of California, Los Angeles
Lee Epstein
Ethan A.H. Shepley Distinguished University Professor
Washington University, St Louis
Joel K. Goldstein
Vincent C. Immel Professor of Law
Saint Louis University School of Law
Doris Kearns Goodwin
Presidential Historian
Mark A. Graber
Jacob A. France Professor of Constitutionalism
University of Maryland
Frances King Carey School of Law
Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Co-Director, Supreme Court Litigation Clinic
Stanford Law School
David M. Kennedy
Donald J. McLachlan Professor of History Emeritus
Stanford University
Harold Hongju Koh
Sterling Professor of International Law
Yale Law School
Thomas E. Mann
Senior Fellow, Brookings Institution
Resident Scholar, Institute of Governmental Studies
University of California, Berkeley
James M. McPherson
George Henry Davis '86 Professor Emeritus of United States History
Princeton University
David M. O'Brien
Leone Reaves and George W. Spicer Professor of Politics
The University of Virginia
Norman J. Ornstein
Resident Scholar
American Enterprise Institute
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law
University of Chicago Law School
NOTE: Affiliations are for identification only; views are of the individuals
Dear Mr. President:
We write to you as scholars of American history, politics, and the law. We express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with 11 months to serve in the position. We believe the idea that a "lame duck" president should not submit a nominee when there is a vacancy on the highest court in the land is a novel and absurd notion, as is the claim that for 80 years or more, no Supreme Court vacancy occurring in an election year has been filled before the election.
In fact it is standard practice when a vacancy occurs on the Supreme Court to have a president, whatever the stage in his term, to nominate a successor and have the Senate consider it. And standard practice (with limited exception) has been for the Senate, after hearings and deliberation, to confirm the president's choice, regardless of party control, when that choice is deemed acceptable to a Senate majority. The most recent example, of course, is Justice Anthony Kennedy, confirmed by a Senate with a Democratic Party majority in February of 1988, during President Ronald Reagan's last year. It is true that Kennedy was nominated in November, 1987, but that is irrelevant--and, of course, the Senate commendably expedited the time between nomination and confirmation despite the election ahead.
The claims of an 80-year precedent by Republican Senate leaders are artfully phrased deliberately to exclude the current situation, which itself is new: it is rare for a justice to die in office, and even more rare for that to happen in a presidential election year. History, however, is replete with instances where a vacancy on the Supreme Court was filled during a presidential election year. In 1912, a nominee of President Taft was confirmed to fill the vacancy created by the death of John Marshall Harlan; in 1916, Woodrow Wilson had two nominees confirmed by the Senate; in 1932, President Hoover had a nominee confirmed after Oliver Wendell Holmes retired; FDR had another vacancy filled with confirmation by the Senate in 1940.
President Eisenhower picked William Brennan in 1956 to fill a vacancy and used his recess appointment power to install Brennan, who was subsequently confirmed by a Senate controlled by Democrats in 1957. It is important to note that there was no objection to Eisenhower's use of the recess appointment--there was instead a widespread recognition that it was bad to have a Supreme Court operate for months without its full complement of nine members.
True, Lyndon Johnson's nomination of Abe Fortas to be Chief Justice, made in 1968, was blocked by the Senate via an extended filibuster. But there was at the time no vacancy on the Court; Chief Justice Warren stayed on until his successor could be confirmed, and Fortas was an associate justice. While some senators did object to Fortas on the grounds that it was an election year, most of the objections were based on ideology and ethical considerations. And it is important to note that the Fortas nomination was considered by the Senate and there were votes on the floor, even if those were votes on cloture.
Divided government can bring sharp differences of opinion about the qualifications and character of nominees to the Supreme Court. But consider the precedent set by a Democratic Senate with the highly contentious nomination of Clarence Thomas. The Senate Judiciary Committee deadlocked 7-7 on his nomination--but instead of letting the nomination die, the committee voted 13-1 to allow the full Senate to make the decision. Thomas ultimately was confirmed by a narrow margin with no filibuster.
If we accept the logic that decisions made by "lame duck" presidents are illegitimate or are to be disregarded until voters make their choice in the upcoming election, that begs both the questions of when lame duck status begins (after all, a president is technically a "lame duck" from the day of inauguration), and why senators up for reelection at the same time should not recuse themselves from decisions until the voters have decided whether to keep them or their partisans in office.
It is technically in the power of the Senate to engage in aggressive denial on presidential nominations. But we believe that the Framers' construction of the process of nominations and confirmation to federal courts, including the Senate's power of "advice and consent," does not anticipate or countenance an obdurate refusal by the body to acknowledge or consider a president's nominee, especially to the highest court in the land. The refusal to hold hearings and deliberate on a nominee at this level is truly unprecedented and, in our view, dangerous.
We are well aware that politics intervenes when judicial nominations are made, and increasingly reflect the broader partisan and ideological polarization in American politics. We do not believe any party is without blame. But we also recognize that confirmation at all levels of the federal judiciary has been increasingly driven by partisan obstructionism, which has reached a peak during the Obama presidency. The refusal by the Republican Senate to confirm any nominees to the D.C. Circuit Court of Appeals is the poster child for that phenomenon.
The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate's best practices and noblest traditions for much of our nation's history.
Respectfully,
Vikram David Amar
Dean and Iwan Foundation Professor of Law
University of Illinois College of Law
Sarah Binder
Senior Fellow, Governance Studies
Brookings Institution
Professor of Political Science
George Washington University
Erwin Chemerinsky
Dean of the School of Law
Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine
Robert Dallek
Emeritus Professor, History
University of California, Los Angeles
Lee Epstein
Ethan A.H. Shepley Distinguished University Professor
Washington University, St Louis
Joel K. Goldstein
Vincent C. Immel Professor of Law
Saint Louis University School of Law
Doris Kearns Goodwin
Presidential Historian
Mark A. Graber
Jacob A. France Professor of Constitutionalism
University of Maryland
Frances King Carey School of Law
Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Co-Director, Supreme Court Litigation Clinic
Stanford Law School
David M. Kennedy
Donald J. McLachlan Professor of History Emeritus
Stanford University
Harold Hongju Koh
Sterling Professor of International Law
Yale Law School
Thomas E. Mann
Senior Fellow, Brookings Institution
Resident Scholar, Institute of Governmental Studies
University of California, Berkeley
James M. McPherson
George Henry Davis '86 Professor Emeritus of United States History
Princeton University
David M. O'Brien
Leone Reaves and George W. Spicer Professor of Politics
The University of Virginia
Norman J. Ornstein
Resident Scholar
American Enterprise Institute
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law
University of Chicago Law School
NOTE: Affiliations are for identification only; views are of the individuals
An Unprecedented Breach of Norms by Senate Republicans
We write to you as scholars of American history, politics, and the law. We express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with 11 months to serve in the position.
March 4, 2016
Justice Scalia's Greatest Failure
In the 1960s, political conservatives accused the justices of the Warren Court of imposing their own liberal values and preferences on the nation in the guise of constitutional interpretation. They charged that the justices of that era consistently exploited the ambiguity of vague constitutional provisions guaranteeing, for example, "the freedom of speech," "the equal protection of the laws," "the free exercise of religion," and "due process of law," to inflict upon the nation liberal policies that were not, in fact, warranted by a more even-handed approach to constitutional interpretation.
The challenge for these conservatives was to figure out a way to constrain the temptation justices might have to construe ambiguous constitutional provisions in a way that comports with their own sense of what makes for a good society. The initial solution suggested by conservatives was a firm commitment to the principle of judicial restraint. Thus, in Richard Nixon's day, a "conservative" justice was a justice committed to the notion that a justice should automatically uphold the constitutionality of government action whenever there was any reasonable argument that could be made in its defense. A justice committed to this approach would invalidate laws only in extraordinary circumstances.
Although some measure of judicial restraint is essential to the legitimacy of constitutional interpretation, even conservatives recognized that judicial restraint in all cases would seriously abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary. As James Madison observed when he proposed the Bill of Rights, it would fall to the "independent tribunals of justice" to serve as "the guardians of those rights" and "to resist every encroachment" upon them. In short, the Framers did not intend for the judiciary to act with across-the-boards judicial restraint. Such an approach would clearly undermine a critical element of the American constitutional system, which relied on the judiciary to place a check on majoritarian abuse.
Recognizing this, but still seeking an approach to constitutional interpretation that would rein in the temptation of justices to impose their own values on the nation, political conservatives next came up with the theory of "originalism." First popularized by Robert Bork and Antonin Scalia in the early 1980s, originalism posits that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates a less deferential analysis.
Under this approach, for example, it would be appropriate for a court to invoke the Equal Protection Clause to invalidate a law that denied African Americans the right to serve on juries, but not to invalidate a law that denied that same right to women, because those who adopted the Equal Protection Clause were not thinking of women at the time. The idea, in short, is to have the best of both worlds - a general presumption of judicial restraint, but the authority and, indeed, responsibility to override that presumption in order to carry out the specific intentions and understandings of those who drafted and ratified any particular provision of the Constitution.
When Justice Scalia was appointed to the Supreme Court by President Reagan in 1986, he no doubt thought that he would be able to make originalism the dominant approach to constitutional interpretation. It was, after all, so clearly the "right" approach that it would surely win the day, especially with him as its champion.
But it was not to be. Indeed, of the seventeen justices with whom Justice Scalia served, only one - Clarence Thomas - has taken seriously this approach to constitutional interpretation, and among the lower courts the approach is rarely invoked. Why did this happen?
There are at least three reasons. First, originalism is internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their own time. But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit. The Framers believed that just as reason and experience enable us to gain greater insight over time into questions of biology, economics, and human nature, so too would they enable us to learn more over time about the essential meaning of the fundamental principles that they enshrined in our Constitution. In short, the notion that the meaning of these provisions should be locked into place based on their own understandings would have seemed completely wrong-headed to the Framers.
Second, originalism is fundamentally flawed because in most instances those who adopted the broad foundational provisions of our Constitution did not themselves have any precise and agreed-upon understanding of the specific meaning of "the freedom of speech," "the freedom of religion," "the equal protection of the laws," or "due process of law." As historians can attest, it is often exceedingly difficult to know with any confidence what the Framers did or did not think about concrete constitutional issues. Although there are some issues about which a strict originalist approach might give a clear answer, for the vast majority of all constitutional issues that come before the Court originalism offers only a muddle of confusion.
Third, in part because of the inherent ambiguity of the originalist inquiry, justices and judges who purport to engage in originalist analysis often simply project onto the Framers their own personal values and preferences. "The Framers were reasonable people. I'm a reasonable people. Therefore the Framers must have intended what I would have intended." The result is an unprincipled and often patently disingenuous jurisprudence. This was perfectly evident, for example, in the pattern of Justice Scalia's own votes on the Court.
In an analysis of Justice Scalia's votes in twenty of the Court's most important constitutional decisions between 2000 and 2013, which dealt with such diverse issues as the 2000 presidential election, gun control, voter disenfranchisement, affirmative action, search and seizure, abortion, due process for persons suspected of terrorism, takings of private property, the death penalty, campaign finance regulations, the freedom of religion, and the rights of gays and lesbians, every one of Justice Scalia's votes in these cases tracked perfectly the conservative political position. Despite all the talk of originalism as a principled mode of constitutional interpretation, Justice Scalia's votes make clear that originalism had little, if anything, to do with his actual decision-making.
In a few of these cases, such as those involving laws restricting abortion or denying the freedom of gays and lesbians to marry, which Justice Scalia invariably upheld, his votes could be explained by a strict originalist philosophy. But in the vast majority of these decisions, Justice Scalia's votes cannot fairly be explained by, or even reconciled with, any meaningful theory of originalism.
These would include, for example, his judicially activist votes to hold unconstitutional laws restricting the amounts that corporations can spend in the electoral process, laws authorizing affirmative action in higher education, laws regulating guns, laws protecting the right of African-Americans to vote, laws promoting racial integration in public schools, and the laws of the State of Florida in the 2000 presidential election.
Thus, as an advocate for originalism, Justice Scalia was his own worst enemy because he could not bring himself to abide by the very tenets of constitutional interpretation that he so vigorously championed. In so doing, he helped bring about the failure of originalism. This, for him, was no doubt a bitter disappointment. (It worked out rather well, though, for the future of American constitutional law.)
The challenge for these conservatives was to figure out a way to constrain the temptation justices might have to construe ambiguous constitutional provisions in a way that comports with their own sense of what makes for a good society. The initial solution suggested by conservatives was a firm commitment to the principle of judicial restraint. Thus, in Richard Nixon's day, a "conservative" justice was a justice committed to the notion that a justice should automatically uphold the constitutionality of government action whenever there was any reasonable argument that could be made in its defense. A justice committed to this approach would invalidate laws only in extraordinary circumstances.
Although some measure of judicial restraint is essential to the legitimacy of constitutional interpretation, even conservatives recognized that judicial restraint in all cases would seriously abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary. As James Madison observed when he proposed the Bill of Rights, it would fall to the "independent tribunals of justice" to serve as "the guardians of those rights" and "to resist every encroachment" upon them. In short, the Framers did not intend for the judiciary to act with across-the-boards judicial restraint. Such an approach would clearly undermine a critical element of the American constitutional system, which relied on the judiciary to place a check on majoritarian abuse.
Recognizing this, but still seeking an approach to constitutional interpretation that would rein in the temptation of justices to impose their own values on the nation, political conservatives next came up with the theory of "originalism." First popularized by Robert Bork and Antonin Scalia in the early 1980s, originalism posits that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates a less deferential analysis.
Under this approach, for example, it would be appropriate for a court to invoke the Equal Protection Clause to invalidate a law that denied African Americans the right to serve on juries, but not to invalidate a law that denied that same right to women, because those who adopted the Equal Protection Clause were not thinking of women at the time. The idea, in short, is to have the best of both worlds - a general presumption of judicial restraint, but the authority and, indeed, responsibility to override that presumption in order to carry out the specific intentions and understandings of those who drafted and ratified any particular provision of the Constitution.
When Justice Scalia was appointed to the Supreme Court by President Reagan in 1986, he no doubt thought that he would be able to make originalism the dominant approach to constitutional interpretation. It was, after all, so clearly the "right" approach that it would surely win the day, especially with him as its champion.
But it was not to be. Indeed, of the seventeen justices with whom Justice Scalia served, only one - Clarence Thomas - has taken seriously this approach to constitutional interpretation, and among the lower courts the approach is rarely invoked. Why did this happen?
There are at least three reasons. First, originalism is internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their own time. But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit. The Framers believed that just as reason and experience enable us to gain greater insight over time into questions of biology, economics, and human nature, so too would they enable us to learn more over time about the essential meaning of the fundamental principles that they enshrined in our Constitution. In short, the notion that the meaning of these provisions should be locked into place based on their own understandings would have seemed completely wrong-headed to the Framers.
Second, originalism is fundamentally flawed because in most instances those who adopted the broad foundational provisions of our Constitution did not themselves have any precise and agreed-upon understanding of the specific meaning of "the freedom of speech," "the freedom of religion," "the equal protection of the laws," or "due process of law." As historians can attest, it is often exceedingly difficult to know with any confidence what the Framers did or did not think about concrete constitutional issues. Although there are some issues about which a strict originalist approach might give a clear answer, for the vast majority of all constitutional issues that come before the Court originalism offers only a muddle of confusion.
Third, in part because of the inherent ambiguity of the originalist inquiry, justices and judges who purport to engage in originalist analysis often simply project onto the Framers their own personal values and preferences. "The Framers were reasonable people. I'm a reasonable people. Therefore the Framers must have intended what I would have intended." The result is an unprincipled and often patently disingenuous jurisprudence. This was perfectly evident, for example, in the pattern of Justice Scalia's own votes on the Court.
In an analysis of Justice Scalia's votes in twenty of the Court's most important constitutional decisions between 2000 and 2013, which dealt with such diverse issues as the 2000 presidential election, gun control, voter disenfranchisement, affirmative action, search and seizure, abortion, due process for persons suspected of terrorism, takings of private property, the death penalty, campaign finance regulations, the freedom of religion, and the rights of gays and lesbians, every one of Justice Scalia's votes in these cases tracked perfectly the conservative political position. Despite all the talk of originalism as a principled mode of constitutional interpretation, Justice Scalia's votes make clear that originalism had little, if anything, to do with his actual decision-making.
In a few of these cases, such as those involving laws restricting abortion or denying the freedom of gays and lesbians to marry, which Justice Scalia invariably upheld, his votes could be explained by a strict originalist philosophy. But in the vast majority of these decisions, Justice Scalia's votes cannot fairly be explained by, or even reconciled with, any meaningful theory of originalism.
These would include, for example, his judicially activist votes to hold unconstitutional laws restricting the amounts that corporations can spend in the electoral process, laws authorizing affirmative action in higher education, laws regulating guns, laws protecting the right of African-Americans to vote, laws promoting racial integration in public schools, and the laws of the State of Florida in the 2000 presidential election.
Thus, as an advocate for originalism, Justice Scalia was his own worst enemy because he could not bring himself to abide by the very tenets of constitutional interpretation that he so vigorously championed. In so doing, he helped bring about the failure of originalism. This, for him, was no doubt a bitter disappointment. (It worked out rather well, though, for the future of American constitutional law.)
Justice Scalia's Greatest Failure
Although some measure of judicial restraint is essential to the legitimacy of constitutional interpretation, even conservatives recognize that judicial restraint in all cases would seriously abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary.
February 24, 2016
The Supreme Court Vacancy and the Constitutional Responsibilities of the Senate
On February 24, 2016, I addressed the Senate Democratic Steering and Outreach Committee in an Ad Hoc Forum on the Supreme Court Vacancy and the Constitutional Responsibility of the Senate. Among the Senators present were Amy Klobuchar (MN); Chuck Schumer (NY), Richard Blumenthal (CN), Brian Schatz (HA), Mazie Hirono (HA), Dick Durbin (IL), Elizabeth Warren (MA), Ed Markey (MA), Debbie Stabanow (MI), Al Franken (MN), Bob Menendez (NJ), Bob Casey (PA), and Maria Cantwell (WA). Below are the brief written remarks I provided the Committee:
In a recent piece in the Washington Post, Miguel Estrada and Benjamin Wittes proclaimed that the only rule that now governs the confirmation process for Supreme Court justices "is the law of the jungle: There are no rules."
This is a profoundly misleading -- and dangerous -- statement. If taken seriously and acted upon, this misconception would undermine 225 years of well-settled tradition and throw the Supreme Court confirmation process into a state of partisan chaos that would damage both the rule of law and the Supreme Court as an institution.
In fact, when we take a deep breath and actually examine the performance of the Senate over time, it is clear that the Senate defers to the president in these matters as long as the president puts forth nominees who are clearly qualified for the position and who are reasonably moderate in their views. Indeed, this has been the outcome in every single nomination in the last 60 years and, as far as I can discern, in every nomination in American history.
Moreover, this is true even when the senators disagree with a nominee's judicial philosophy, even when the Senate is controlled by the opposing party, even when the nominee's confirmation is likely to have a significant impact on the balance on the Court, and even if the final year of a president's term. When all is said and done, nominees who are both qualified and moderate are confirmed. Period.
The "no rules/law of the jungle" assertion is premised primarily on the fact that since the Supreme Court's 2000 decision in Bush v. Gore, members of the Senate have tended to vote in a more partisan manner than in the past. This is true. In the Roberts, Alito, Sotomayor, and Kagan confirmations, members of the opposing party cast only 26 percent of their votes to confirm, whereas in the five preceding Supreme Court nominations senators from the opposing party cast 73 percent of their votes to confirm.
This is, indeed, a troubling trend. It is due largely to the much greater involvement of interest groups in the confirmation process, a phenomenon that raises the political stakes for members of the Senate and gives them an incentive to vote in a more partisan manner.
But it is important not to blow this out of proportion. In fact, in the years since 2000 every one of those four nominees was confirmed by the Senate, and they were confirmed with appreciable bipartisan support.
What, though, are the "rules" -- or traditions -- that govern the Supreme Court confirmation process?
At the outset, it is worth noting that from 1790 to the present, the Senate has confirmed 91 percent of the 129 Supreme Court nominees it has considered. In the last 60 years, the Senate has confirmed 89 percent of the 28 Supreme Court nominees it has considered. Thus, despite all of the overwrought handwringing about a process without rules, there has been no change over time.
Of course, not every member of the Senate votes to confirm every nominee. Why do senators sometimes vote against confirmation?
One factor, of course, is partisanship. Senators are more likely to vote to confirm nominations made by a president of their own party than nominations made by a president of the opposing party. But it is important to note that in the last 60 years members of the Senate have voted 60 percent of the time to confirm nominees put forth by a president of the opposing party and that, even when the opposing party controls the Senate, the Senate has voted to confirm 80 percent of all Supreme Court nominees (12 of 15)
In addition to partisanship, senators also take a nominee's qualifications into account. In the last 60 years, nominees who were perceived as highly qualified, such as Lewis Powell, Antonin Scalia, and Ruth Bader Ginsburg, received an average of 97 percent of the votes, whereas nominees perceived as less qualified, such as Byron White, Clarence Thomas, and David Souter, received an average of 61 percent of the votes.
Senators also take a nominee's judicial philosophy into account. In the last 60 years, nominees perceived as having moderate views, such as John Paul Stevens, Sandra Day O'Connor, and Stephen Breyer, received an average of 96 percent of the votes, whereas nominees perceived as having more strongly ideological views, whether on the right or on the left, such as Thurgood Marshall, William Rehnquist, and Robert Bork, received an average of 77 percent of the votes.
Another factor that influences senators is the perceived impact an appointment might have on the distribution of views on the Court. In the last 60 years, those nominees whose confirmations were perceived as likely to have the least impact, such as John Roberts, Anthony Kennedy, and Elena Kagan, received an average of 96 percent affirmative votes, whereas the nominees seen as likely to have the greatest impact, such as Clarence Thomas, Harry Blackmun, and Thurgood Marshall, received 71 percent of the votes.
What does all this tell us? First and foremost, in the last 60 years 19 of the 20 most moderate Supreme Court nominees have been confirmed by the Senate. This includes everyone from Sonia Sotomayor to Warren Burger to Samuel Alito. The only exception was Clement Haynsworth, who was defeated because of allegations of financial impropriety.
Even more impressive, even when the Senate was controlled by the opposing party, in the last 60 years every one of the eight nominees who was perceived to be both qualified and reasonably moderate was easily confirmed. This includes Charles Whittaker, Potter Stewart, Warren Burger, Harry Blackmun, Lewis Powell, John Paul Stevens, Anthony Kennedy, and David Souter. It is noteworthy, by the way, that every one of these eight justices was nominated by a Republican president and confirmed by a Senate controlled by the Democratic Party.
Thus, despite all the fuss and fury over the Supreme Court confirmation process, the plain and simple fact is that the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views. And this is true even when the Senate is controlled by the opposing party and even in the final year of a president's term. In short, nominees who are both qualified and moderate are confirmed. Period.
This approach has major benefits to the nation. It reduces potential fractiousness within the Senate, it minimizes the risk of confirmation stalemate, it reduces the risk of politicizing the judiciary, and it more or less averages out over time. In short, this is a sensible, pragmatic approach that has served the nation well.
Republicans who now declare that the traditional confirmation process is unfair because President Obama might appoint a justice they don't like need to slow down and consider the long-run.
From 1968 to 1992, Republicans controlled the White House for 20 of 24 years. During that time, Republican presidents made eleven consecutive appointments to the Supreme Court. From 1992 to 2016, Democrats controlled the White House for 16 of 24 years. During that time, Democrats will have made 5 of 7 appointments to the Supreme Court, including the successor to Justice Scalia. Over that 48-year period, the Republicans have controlled the White House 58 percent of the time, but they have made 72 percent of the Supreme Court appointments. They have nothing to complain about.
Although the Republicans' desire to obstruct is understandable as a matter of partisan self-interest, such obstruction would set a disastrous precedent for the future. Instead, if the president nominates a clearly qualified and relatively moderate nominee, Senate Republicans should just do their job, as members of the Senate have done it throughout our history, and confirm that nominee. Sometimes one's oath of office -- to preserve and protect the Constitution -- requires one to do the right thing.
After I wrote the above statement, the Republican members of the Senate Judiciary Committee announced that they will not consider any nominee put forward by our nation's duly elected president, no matter how qualified or how moderate the candidate might be. This is unconscionable. If they carry through on this threat, it will be directly incompatible with their solemn responsibilities under the United States Constitution. It would be an action morally and legally on a par with the Southern Manifesto.
If the Senate Republicans follow through on this threat, then from this day forward Miguel Estrada and Benjamin Wittes will be right. The Supreme Court confirmation process will be lawless. It will, indeed, be "the law of the jungle." That is a legacy they, and our nation, will surely come to regret.
In a recent piece in the Washington Post, Miguel Estrada and Benjamin Wittes proclaimed that the only rule that now governs the confirmation process for Supreme Court justices "is the law of the jungle: There are no rules."
This is a profoundly misleading -- and dangerous -- statement. If taken seriously and acted upon, this misconception would undermine 225 years of well-settled tradition and throw the Supreme Court confirmation process into a state of partisan chaos that would damage both the rule of law and the Supreme Court as an institution.
In fact, when we take a deep breath and actually examine the performance of the Senate over time, it is clear that the Senate defers to the president in these matters as long as the president puts forth nominees who are clearly qualified for the position and who are reasonably moderate in their views. Indeed, this has been the outcome in every single nomination in the last 60 years and, as far as I can discern, in every nomination in American history.
Moreover, this is true even when the senators disagree with a nominee's judicial philosophy, even when the Senate is controlled by the opposing party, even when the nominee's confirmation is likely to have a significant impact on the balance on the Court, and even if the final year of a president's term. When all is said and done, nominees who are both qualified and moderate are confirmed. Period.
The "no rules/law of the jungle" assertion is premised primarily on the fact that since the Supreme Court's 2000 decision in Bush v. Gore, members of the Senate have tended to vote in a more partisan manner than in the past. This is true. In the Roberts, Alito, Sotomayor, and Kagan confirmations, members of the opposing party cast only 26 percent of their votes to confirm, whereas in the five preceding Supreme Court nominations senators from the opposing party cast 73 percent of their votes to confirm.
This is, indeed, a troubling trend. It is due largely to the much greater involvement of interest groups in the confirmation process, a phenomenon that raises the political stakes for members of the Senate and gives them an incentive to vote in a more partisan manner.
But it is important not to blow this out of proportion. In fact, in the years since 2000 every one of those four nominees was confirmed by the Senate, and they were confirmed with appreciable bipartisan support.
What, though, are the "rules" -- or traditions -- that govern the Supreme Court confirmation process?
At the outset, it is worth noting that from 1790 to the present, the Senate has confirmed 91 percent of the 129 Supreme Court nominees it has considered. In the last 60 years, the Senate has confirmed 89 percent of the 28 Supreme Court nominees it has considered. Thus, despite all of the overwrought handwringing about a process without rules, there has been no change over time.
Of course, not every member of the Senate votes to confirm every nominee. Why do senators sometimes vote against confirmation?
One factor, of course, is partisanship. Senators are more likely to vote to confirm nominations made by a president of their own party than nominations made by a president of the opposing party. But it is important to note that in the last 60 years members of the Senate have voted 60 percent of the time to confirm nominees put forth by a president of the opposing party and that, even when the opposing party controls the Senate, the Senate has voted to confirm 80 percent of all Supreme Court nominees (12 of 15)
In addition to partisanship, senators also take a nominee's qualifications into account. In the last 60 years, nominees who were perceived as highly qualified, such as Lewis Powell, Antonin Scalia, and Ruth Bader Ginsburg, received an average of 97 percent of the votes, whereas nominees perceived as less qualified, such as Byron White, Clarence Thomas, and David Souter, received an average of 61 percent of the votes.
Senators also take a nominee's judicial philosophy into account. In the last 60 years, nominees perceived as having moderate views, such as John Paul Stevens, Sandra Day O'Connor, and Stephen Breyer, received an average of 96 percent of the votes, whereas nominees perceived as having more strongly ideological views, whether on the right or on the left, such as Thurgood Marshall, William Rehnquist, and Robert Bork, received an average of 77 percent of the votes.
Another factor that influences senators is the perceived impact an appointment might have on the distribution of views on the Court. In the last 60 years, those nominees whose confirmations were perceived as likely to have the least impact, such as John Roberts, Anthony Kennedy, and Elena Kagan, received an average of 96 percent affirmative votes, whereas the nominees seen as likely to have the greatest impact, such as Clarence Thomas, Harry Blackmun, and Thurgood Marshall, received 71 percent of the votes.
What does all this tell us? First and foremost, in the last 60 years 19 of the 20 most moderate Supreme Court nominees have been confirmed by the Senate. This includes everyone from Sonia Sotomayor to Warren Burger to Samuel Alito. The only exception was Clement Haynsworth, who was defeated because of allegations of financial impropriety.
Even more impressive, even when the Senate was controlled by the opposing party, in the last 60 years every one of the eight nominees who was perceived to be both qualified and reasonably moderate was easily confirmed. This includes Charles Whittaker, Potter Stewart, Warren Burger, Harry Blackmun, Lewis Powell, John Paul Stevens, Anthony Kennedy, and David Souter. It is noteworthy, by the way, that every one of these eight justices was nominated by a Republican president and confirmed by a Senate controlled by the Democratic Party.
Thus, despite all the fuss and fury over the Supreme Court confirmation process, the plain and simple fact is that the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views. And this is true even when the Senate is controlled by the opposing party and even in the final year of a president's term. In short, nominees who are both qualified and moderate are confirmed. Period.
This approach has major benefits to the nation. It reduces potential fractiousness within the Senate, it minimizes the risk of confirmation stalemate, it reduces the risk of politicizing the judiciary, and it more or less averages out over time. In short, this is a sensible, pragmatic approach that has served the nation well.
Republicans who now declare that the traditional confirmation process is unfair because President Obama might appoint a justice they don't like need to slow down and consider the long-run.
From 1968 to 1992, Republicans controlled the White House for 20 of 24 years. During that time, Republican presidents made eleven consecutive appointments to the Supreme Court. From 1992 to 2016, Democrats controlled the White House for 16 of 24 years. During that time, Democrats will have made 5 of 7 appointments to the Supreme Court, including the successor to Justice Scalia. Over that 48-year period, the Republicans have controlled the White House 58 percent of the time, but they have made 72 percent of the Supreme Court appointments. They have nothing to complain about.
Although the Republicans' desire to obstruct is understandable as a matter of partisan self-interest, such obstruction would set a disastrous precedent for the future. Instead, if the president nominates a clearly qualified and relatively moderate nominee, Senate Republicans should just do their job, as members of the Senate have done it throughout our history, and confirm that nominee. Sometimes one's oath of office -- to preserve and protect the Constitution -- requires one to do the right thing.
After I wrote the above statement, the Republican members of the Senate Judiciary Committee announced that they will not consider any nominee put forward by our nation's duly elected president, no matter how qualified or how moderate the candidate might be. This is unconscionable. If they carry through on this threat, it will be directly incompatible with their solemn responsibilities under the United States Constitution. It would be an action morally and legally on a par with the Southern Manifesto.
If the Senate Republicans follow through on this threat, then from this day forward Miguel Estrada and Benjamin Wittes will be right. The Supreme Court confirmation process will be lawless. It will, indeed, be "the law of the jungle." That is a legacy they, and our nation, will surely come to regret.
Geoffrey R. Stone's Blog
- Geoffrey R. Stone's profile
- 45 followers
Geoffrey R. Stone isn't a Goodreads Author
(yet),
but they
do have a blog,
so here are some recent posts imported from
their feed.
