Legal Affairs "Advice and Consent" Debate

This week at Legal Affairs, Erwin Chemerinsky and Brannon Denning debate this topic:

The Constitution gives the president the power to appoint justices to the Supreme Court, with "advice and consent" from the Senate. To some, this advice should be limited to a vote, but others say that it demands questioning everything from the nominee's judicial temperament to his politics and legal ideology.

A contentious confirmation battle looms about the nomination of John Roberts. How should the Senate provide its "advice and consent"?

Giving Credit Where It's Due

K. J. Lopez of The Corner was the first to predict that Judge Roberts would be nominated to the Supreme Court. Whether she took a wild guess or not, she took a chance. And she got it right.

(Hat tip: Orin Kerr)

Tradesports and Nominees

Professors Jim Lindgren and Orin Kerr, both of the Volokh Conspiracy, are debating whether and to what extent Tradesports.com "works," where works means doing something other "just mirror the collective common wisdom of newspapers and blogs":

Kerr: It doesn't work. It's just a bunch of ignorant people making bets based on the predictions of other ignorant people. By "ignorant," I don't mean stupid. I just mean ill-informed. In this context, the President and two or three other people know the answer. And they're not talking. Everyone else is ignorant. Tradesport's market is thus nothing but a computer program tracking pluralistic ignorance.
Lindgren: You're wrong. It worked. It predicted Roberts.
Kerr: It "predicted" Roberts after a bunch of ignorant people starting "thinking" Roberts would be nominated.
Lindgren: It worked. It predicted Roberts.
Kerr: Right. It "predicted" Roberts after a bunch of (again, ignorant) people predicted Roberts. What's so special about that?

Okay, there's more to the debate than that. I think. You can read the full thing by reading this post and then reading the "Related Posts." Is anyone from Legal Affairs reading? Turn the Kerr-Lindgren discussion into a Debate Club.

John Roberts' Cases

A partial listing of cases John Roberts argued while a lawyer (in private practice and as a government lawyer) can be accessed at the Oyez Project, here and here.

The Ginsburg Rule

Republicans have already been using what has potential to be a powerful rhetorial device.

During then-D.C. Judge Ginsburg's confirmation hearings, she refused to answer questions on specific cases or controversies that she might have to resolve as a Supreme Court Justice. Tonight, Senator Charles Schumer said that he will demand that Judge Roberts answer questions on specific cases. Senate Republicans are arguing that Judge Roberts cannot - and should not - answer any such questions.

They're relying on Justice Ginsburg's refusal to answer questions as authority for Roberts to evade or refuse to answer certain questions. And they're calling this The Ginsburg Rule. Brilliant.

Schumer's Burden Shifting

"The burden is on the nominee to prove to the Senate that he is worthy to be apointed to the Supreme Court. The burden is not on the Senate to prove that he is unworthy."

Reaction to the Roberts Nomination

The blogosphere is a little slow on the draw, given that Roberts is a shocking nomination. Here are some responses:

Orin Kerr:
Bravo: It's all over the news that the President is nominating John G. Roberts to replace Justice O'Connor. He's an inspired choice. Robert is probably the best Supreme Court litigator of his generation, and is considered a total star within the DC legal community (on both sides of the aisle). Bravo.

John Adler:
Setting aside ideology — and he has a sterling conservative reputation despite the relative lack of a paper trail — he is close to the Platonic ideal of what a Supreme Court nominee should be.

Adam White:
I'd be pleased to see more diversity -- in the fullest sense of the term* -- on the Supreme Court. But assigned seating belongs in classrooms, not on the Court. Good job, President Bush.

Tim Wu:
But nonetheless, hidden in that [John Roberts' student comment] is one of the holy grails of the Exile philosophy– the heightened scrutiny using the contract clause that Lochner itself proclaimed.

Ethan Leib:
Why do the Democrats do such stupid things sometimes? Did Leahy and Schumer really need to have an immediate response to the nomination? And such an unnecessary and disorganized one? It makes us look bad.

Scott from L-Cubed:
I may not like him, but he's qualified.

Amy Howe is also collecting reactions, and she has several links here.

"Live"-Blogging John Roberts' Nomination

[Ed's note: I was away from my computer when watching the press conference. But I took notes, which are transcribed below.]

Wow, John Roberts looks distinguished. He's smiling from ear-to-ear. Not a smirk. But the smile of someone who has worked hard, and who has the pride only someone of genuine accomplishment can have.

As the camera faces him, it looks like his big eyes are welling up. Yes, they are. My God, this legal superhero looks like he's about to tear-up. This is amazing.

His speech is short, but gracious. He really seems like he's in awe of what's happening. I have never seen such humility.

If I had to describe what I'm seeing in just one word, it would be gravitas.

"It's John Roberts"

John Roberts of the D.C. Circuit Court of Appeals will reportedly be nominated to the United States Supreme Court. CNN has the details.

(Hat tip: CTA7 Alum)

Rehnquist Retirement! (?)

According to the Drudge Report:

Rehnquist Retirement Reports Hit Washington; No Official Indication

An poster at the Greedy Clerks Board with an inside connection reports:

A friend of a friend who is a staffer on the Senate Judiciary Committee was told to get to work early today because Rehnquist was announcing. Take it to the bank, rumormongers.

Professors, Politics, and the Whole Truth

After reading one blawger criticize a liberal law professor for playing fast-and-loose with Supreme Court case holdings, I was inspired to share a conservative professor's sleight of hand. A USD law professor wrote:

At the time [Clinton nominated Ruth Bader Ginsburg], no one argued that Clinton was obligated to appoint a candidate who would continue in White's somewhat conservative tradition. And Clinton surely did not do so. He appointed Ruth Bader Ginsburg--a movement liberal who had served for many years as the ACLU's General Counsel. This is approximately equivalent to appointing the former general counsel to the National Right to Life Coalition to the Supreme Court--or perhaps the National Rifle Association. Nobody batted an eye. Somehow the members of the Senate got it in their heads that a President ought to be given substantial discretion in these matters.

Really now? Senator Orrin Hatch would disagree. In his autobiography, he wrote:

[It] was not a surprise when the President called to talk about the appointment and what he was thinking of doing.

President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. Clinton asked for my reaction.

I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease.

Of course, we can quibble over what giving the President "substantial discretion" means. But I'm an old-fashioned guy who thinks law professors ought to tell the whole story when educating the non-lawyer public. The USD professor, in failing to note that Senate Republicans played a major role in the SCOTUS nomination process during Clinton's presidency (indeed, naming the justices), omitted materials facts. This is, at best, poor form. At worst, it's calculated to deceive.

Or, perhaps the good professor did not know the role Senator Hatch played in the nomination of Justices Ginsburg and Breyer. I'm not sure which is worse: willfully omitting material facts, or not knowing the facts.

(Hat tip: L-Cubed)

NR's Bench Memos: Not Serious

The National Review's descent from a serious and intellectually-honest (albeit partisan) magazine into a silly partisan hack rag was perhaps best exposed by Ramesh Ponnuru's hit piece on Professor Tribe, and then his childish name-calling of Tom Goldstein for daring to question his analysis (name calling which was criticized by many serious conservatives). So perhaps it is no surprise that National Review's entry into commentary on judicial nominations with its Bench Memos blog is beyond dishonest.

For example, take a look at this post by Edward Whelan on Justice Ruth Bader Ginsburg:

First, no conceivable nominee will have the record of extremism that nominee [Ruth Bader] Ginsburg had, but will instead surely display a much more sound understanding of the role of judging in a constitutional republic. Second, Ginsburg was altering the previous balance of the Court by replacing Justice Byron White, an opponent of much of the Court’s liberal activism (including Roe).

Record of Extremism!! Recall that Justice Ginsburg was recommended to President Clinton by none other than Orin Hatch, then ranking-minority member of the Senate Judiciary Committee. I challenge the National Review to find a serious legal scholar (eg not R. Ponnuru) who would characterize Justice Ginsburg's jurisprudence on the DC Circuit (or now on the Supreme Court) as "extreme." Compared to true judicial liberals like the late Justices Brennan and Marshall, or Ninth Circuit Judge Reinhardt, Ginsburg is conservative. She has not hesitated to join summary reversals of vacaturs of death sentences by the Ninth Circuit (this sort of procedural speak may be above the author of the post I criticize), and she has routinely affirmed death sentences.

Even on woman's issues, Justice Ginsburg has not been so far to the left in her tenure on the Supreme Court. In US v. Virginia, Justice Ginsburg reaffirmed that intermediate-scrutiny for gender-based classifications was the proper level of analysis under the Equal Protection Clause of the 14th Amendment (I know, I know, this is probably all over Edward Whelan's head). This despite the Clinton Administration's urging that the Court adopt strict scrutiny (which was the standard urged by liberals in the 70's and 80's, and endorsed by Justices Brennan and Marshall).

The colorable point that Mr. Whelan has is that Ginsburg's nomination altered the balance of the Court in a greater way than will the Chief Justice's replacement. This is true to a degree. But only to a degree. Justice White (appointed by JFK) was indeed judicially conservative on many issues -- most notably in his opposition to Roe v. Wade, he and Rehnquist were the only dissenters from the Court's opinion in Roe. But in other areas, Justice White's jurisprudence was similar to Justice Ginsburg's -- he did not believe that affirmative action programs should be reviewed for strict scrutiny, he was a supporter of civil rights laws, etc.

In short, in their new role as mouthpiece for the Republican party and by trying to drum up support amongst the Republican base against "activist" judges (coincidentally with Jewish names which surely will play well with his audience), the National Review must simply depart from any modicum of intellectual honesty. It's sad as those of us who truly understand jurisprudence have to read this cr--.

Janice Rogers Brown to Supreme Court?

Following up on Pozinski's post re the confirmation of Justice (I guess now-Judge) Brown to the DC Circuit, the speculation must now begin: will Bush nominate her to the Supreme Court if there is indeed a vacancy this summer (which I am not convinced yet there will be)? Tom Goldstein mentions Brown as a "top candidate" for nomination. Such a nomination would drive liberals mad, and would be well-received amongst Bush's core social conservatives. Moreover, such a move would be good strategy given that the Democrats agreed not to filibuster her to the DC Circuit. Although the Dems could argue that "extraordinary circumstances" to the Supreme Court is different from "extraordinary circumstances" to the DC Circuit, such a fine distinction may not be so easily made.

My prediction: Bush does nominate her, and we can prepare for the most bitter confirmation battle in history.

New Supreme Court Nomination Blog

The lawyers of Goldstein & Howe have started what will fast become the preeminent source for Supreme Court nomination related news and commentary. Entitled The Supreme Court Nomination Blog, this is its first week in operation: you can read the inaugural post here.

Janice Brown Confirmed

BREAKING NEWS: According to this CNN story, California Supreme Court Justice Janice Rogers Brown has been confirmed to the District of Columbia Court of Appeals. Congratulations, Judge Brown!

(Hat tip: Professor Orin Kerr.)

What a Long, Strange Trip It's Been

On the fourth anniversary of Bush's first judicial nominations, Byron York takes a look back over at the fledgling Huffington Post.

Frist has the votes?

Robert Novak is reporting that Frist has 52 votes to uphold the nu-ku-lar option.

WASHINGTON -- Republican leaders count only two or three GOP senators who will vote against the efforts to end, by a straight majority vote, filibusters on confirmation of judicial nominations.
Sens. Olympia Snowe of Maine and Lincoln Chafee of Rhode Island will not support this move, and they are likely to be joined by Sen. John McCain of Arizona. That would mean 52 senators would go along with the parliamentary maneuver attempting to end filibusters on judges. Only 50 are needed.
The only Democrat who might possibly join this effort is Sen. Ben Nelson of Nebraska. But Bush will not press him to break party discipline if his help is unnecessary.

Griffith Clears Judiciary Committee

In an interesting development, the Judiciary Committee approved Griffith on a 14-4 vote. Schumer, Durbin, Feinstein, and Kohl (WI) all voted YEA. (Which I find quite surprising). If they intend to vote in the same fashion on the floor, that makes Griffith filibuster-proof. (55 GOPers plus the above 4 Dems, plus Ben Nelson of Nebraska who has never supported a filibuster against judicial nominees). So, it seems that Griffith will be the first appellate nominee approved. I wonder if the Dems decided to reduce the number of nominees they will try and filibuster in the hopes of averting the nuclear option.

Leave the Man Alone

Law professor (and former guest) Tom Baker has this op-ed in The National Law Journal arguing that the media should respect Chief Justice Rehnquist's privacy with respect to his illness and treatment.

In light of the media storm over the Chief's return to the bench Monday (complete with photos of him leaving his house in his L.L. Bean barn jacket), I'm inclined to agree with Professor Baker on this one.

Votes in place to implement nuclear option?

This article suggests that Republican Senators may have the votes needed to implement the so-called "nuclear option."

Term Limits for Supreme Court Justices?

That controversial issue is the subject of this week's debate between Judge Richard Posner and economist Gary Becker over at their blog.

Professor William Kelley

We have it on the most reliable authority that Notre Dame law professor William Kelley has been appointed Deputy White House Counsel, not nominated to a federal court of appeals.

Congratulations, Professor Kelley.