Baseball Crank
Covering the Front and Back Pages of the Newspaper
April 27, 2005
LAW: The Least Dangerous Branch?

The newly permalink-enhanced Sultan of Snark, Mickey Kaus, touches on a crucial point in explaining why he believes filibusters are more, not less, appropriate for judges rather than legislation:

In the post-Warren era, judges don't just have tenure, they have almost uncheckable anti-democratic power. The constitution has been durably politicized in a way the Framers didn't anticipate. Practically every legislative issue can be--and is--phrased in constitutional terms (e.g., as a case of "rights"). Activist Democratic judges would start by supervising the fine points of democratically-passed abortion laws, trimester-by-trimester, and take off from there. Activist Republicans would overturn laws approved by the elected Congress when they don't sufficiently affect interstate commerce. The only hope, given these dueling tribes of activists, is that in the Senate's confirmation deliberations each faction will cancel out the extremes of the other, Bork-style, resulting in either the confirmation of a) a principled non-activist or b) a mushy middle-of-the-road consensus candidate. The filibuster can force such a compromise.

(Emphasis added). Much of the problem with the filibuster debate has been the "pox on both houses" tendency of commentators to treat liberal and conservative judges as if they were two sides of the same coin. They are not. As a practical political matter, I understand well that if you eliminate the filibuster for Republican judicial nominees (which I've advocated doing on a more limited scale), you can't well get it back for Democratic ones, although when Republicans hold a Senate majority during a Democrat's turn in the White House you always retain the option of voting judges down. But in discussing the merits of the two sides' competing visions of the Constitution*, Republicans need to make it clearer that conservative judges should be given an easier path to confirmation than liberal judges, and for precisely the reason Mickey identifies.

Because the fact is, conservative judges are pro-democracy in ways that liberal judges are not. The core ideology of people like Justice Scalia is the idea that judges need to rest their rulings on a foundation of democratic legitimacy - to draw their power solely from the express consent of the governed - rather than from some higher law never expressly enacted by the people in any form. By and large, this means not striking down legislative enactments if one can't find clear evidence that the people previously spoke to the issue in the Constitution itself.

Specifically, liberal judicial decisions have tended to take issues away from the democratically elected branches: on abortion, the death penalty, same-sex marriage, euthanasia, etc., it's liberals who argue that the Constitution removes choices from federal and state governments, even when it is clear that the people, in ratifying the constitutional provision in question, never consented to such expressions of judicial power. The list of such decisions is too long to recount here, but includes the especially undemocratic movement towards deriving authority from international law (in which the consent of the governed is irrelevant, and accountability impossible).

Counter-examples of conservative "activism," by contrast, generally tend at most to reallocate powers among the various branches of government rather than rule them out of the democratic sphere entirely. When the Supreme Court tells Congress that something like the Violence Against Women Act exceeds the commerce power, it leaves the people's representatives in the states with plenary authority to legislate in that area. When the Court limits the ability to sue states in federal court under the 11th Amendment - probably the most controversial area of Rehnquist Court "activism" - it leaves the people's representatives in the states with the ability to accomplish the same ends in state court, or through alternative state-law remedies, if that is what they want. By contrast, the Dormant Commerce Clause cases, which restrict state power, generally leave Congress with the ability to enact nationwide economic policy. If the Court had struck down the Independent Counsel statute, as Justice Scalia proposed, there would still be special prosecutors (as there are again today). And, of course, if the Court were to overturn Roe v. Wade, many states would go ahead and repeal their old statutes banning abortion.

Where there have been a few legitimate counter-examples of conservative judges pushing to limit the scope of democratic governance in the way commonly done by judicial liberals, they have been in the heartland of express constitutional provisions: protecting freedom of political speech during elections (the campaign finance reform cases), preventing government from making preferential distinctions on the basis of race (the affirmative action cases), recognizing an individual right to bear arms or requiring just compensation for government takings of property. There are fair arguments over the original meaning of such provisions, but judicial conservatives can hardly be accused of making up the Fourteenth Amendment's concern with race discrimination.

(Of course, at this point, some liberal readers will no doubt complain about Bush v. Gore, which is often cited as an example of activism. Bush v. Gore was a unique case, of course, and I won't revisit all the arguments I made about it here, here, here and here. But recall that (1) the Supreme Court in that case did nothing to limit the authority of the Florida Legislature or Florida's executive branch; the decision was strictly limited to striking down a judicial remedy derived after the fact without a basis in statute; (2) the Court actually sided with the people's elected representatives in Florida, specifically the Secretary of State, who was given statutory responsibility over the matter; and (3) the Court's conservatives wanted to resolve the case on the basis of an express Constitutional command, in Article II, that left the final say to the Florida Legislature. You have to work awfully hard to distort this into a decision taking power from the elected and accountable representatives of the people).

In short, when confirming judges, the first question should always be this: is this person, on the bench, likely to remove power from its legitimate source, the consent of the governed? Of course, there will be hard questions about how to read what the Constitition and statutes are meant to say. But the clear track record shows that judicial conservatives of the Scalia/Thomas type can be trusted to err on the side of democracy; judicial liberals can not, and should therefore be regarded as the greater danger to democratic self-government. And O'Connor/Kennedy-style "mushy middle-of-the-road consensus candidates," as Kaus puts it, are as likely as not to join the liberals, in addition to joining in some "activist" conservative-leaning decisions, thus making everyone unhappy. The fact that the appointment and confirmation process is the only way short of impeachment (which I, as a practicing lawyer, oppose for all the reasons identified by Ted Olson) to ensure that the bench is filled with people who respect the need to draw power from the consent of the governed is precisely why filibustering conservative judges is particularly misguided and illegitimate.

UPDATE: To clarify a point noted in the comments: my point here is, there may well be an argument for filibustering liberal judges on grounds that they are likely to exercise "uncheckable anti-democratic power," but that argument just doesn't fly for conservative judges.

* - My discussion here is limited to the judiciary's role in using constitutional law to trump the decisions of the democratically elected branches of government. Of course, the bulk of the workaday business of the courts involves statutory interpretation and application to facts. There are also significant differences in approach between liberal and conservative judges in those areas, but they are neither as pronounced and dramatic, nor as controversial, and they are more easily remedied by legislation.

Posted by Baseball Crank at 9:12 AM | Law 2005 | Comments (8) | TrackBack (1)

OK, let's be clear here. Your argument has nothing to do with the fillibuster. It's a straightforward case that liberal judges are bad because they give more power to government in general, and the federal government in particular. Without getting into the merits of the argument, it's just a case to oppose liberal judges. It speaks to why the Democrats' motives are incorrect, but you're also attacking their tactics ("particularly misguided and illegitimate") without giving any reason.

It's like you're saying "Those nasty Democrats are opposing what we want to do! And to make it even worse, they're trying really hard!"

Posted by: Devin McCullen at April 27, 2005 10:53 AM

Well, no. Mickey argues that filibusters are needed to prevent judges from exercising "uncheckable anti-democratic power". My point is, that's not equally true of both types of judges.

Posted by: The Crank at April 27, 2005 11:07 AM

Wow, this actually started off like it was going to be a sensible , if not, mushy, middle of the road, column about how the filibuster is a valuable tool for keeping extremists of either stripe off the Bench. Instead, liberals judges are bad, and deserve filibustering, and conservatives judges deserve a rubber-stamp.

Complete crap.

Posted by: Mr Furious at April 27, 2005 11:37 AM

You think that conservative judges are more respectful of the democratic process? Civil rights should never be put up for a majority vote.

When conservatives complain about so-called liberal activist judges, they invariably refer to abortion, same sex marriage and the occasional "rogue" decision, i.e., pledge of allegiance case from California. But these critics know (or say) nothing about the thousands of other rulings which come down each year which do not in any way qualify as "activist." On the other hand, long-held judicial doctrines screw over the majority in ways that the general public will never learn, mostly because these tend to be obscure areas of the law which nonetheless have far-reaching consequences. In civil rights cases, government defendants are given the benefit of the doubt under a "qualified immunity" theory. In First Amendment retaliation cases, the defendant can win the case on a legal fiction if the jury finds that the plaintiff would have been fired anyway even without the whistleblowing; this verdict is appropriate under the case law even if the jury first finds that the plaintiff was fired because of his speech.

If Justice Scalia is such a proponent of judicial restraint, why is he not advocating a return to the plain language meaning of the Eleventh Amendment? You are a lawyer, so you know what I am talking about. Scalia's "irreparable harm" argument in Bush v. Gore was horse-shit, as was the Supreme Court's statement that the case had no precedential value -- a statement which cuts against the very reason for the Court's existence. You think the Supreme Court in Bush v. Gore respected the judgment of State officials? These State officials were on the Bush campaign team, including the Secretary of State!

Conservative judicial activism is all over the place. You just have to know where to look. Scalia's opinion in Employment Division v. Smith absolutely gutted the Free Exercise Clause. Conservatives have no idea what their hero did to freedom of religion in this Country. In 2001, the Supreme Court quite narrowly interpreted the civil rights laws in making it nearly impossible for plaintiffs to recover their attorneys' fees in important cases challenging institutional practices. This ruling (Buckhannon) holds that if the defendant voluntarily changes its illegal behavior mid-litigation the plaintiff did not officially win the case and therefore cannot recover his attorneys fees. This was a clear policy judgment by the Court which only the Fourth Circuit had adopted, and it creates an enormous disincentive for lawyers NOT to take innovative civil rights cases as they have no guarantee of getting paid. But it was this sort of litigation which absolutely benefitted this Country over the years.

Remember also that the activist Warren court, whatever its faults, absolutely made this a free country. The Warren court ended school segregation. There is no way the voting majority would have gone along with this. Most of the Bill of Rights were dormant prior to 1937 before liberal judges brought them to life. Indeed, ask any American what makes this country free; he will cite rights and freedoms given to us by liberal judges. The rant about the "liberal" courts is frankly meaningless to anyone who knows something about the history of the Supreme Court.

Posted by: Steve at April 27, 2005 12:33 PM

OK, I see what you were getting at. I didn't really look at the Kaus quote (since I'd already read the column). I still don't agree with your opinion on conservative judges, but now I understand why you argued the way you did. Sorry about the confusion.

Posted by: Devin McCullen at April 27, 2005 1:27 PM

Mr Furious: "[E]xtremists of either stripe" is a misnomer, as I noted. I just don't think it's extremist to leave important decisions in the hands of the governed.

Steve: First of all, "Civil rights should never be put up for a majority vote" pretty much gives away the game here. Nearly everything government does affects someone's rights in one way or another. If you really believe those damn voters shouldn't have a say in anything important, that's your position.

I'm not getting into the arguments here about statutory/procedural issues in civil rights cases and the like - there are scores more examples than that that you could cite one way or another. Justice Thomas' opinion in the Swierkiewicz case is probably the most liberal opinion by the Court in decades in terms of its practical impact. I will note, however, that current immunity law is itself sharply liberalized from traditional rules. I've also said my piece on Bush v. Gore. At least Katherine Harris, unlike the Florida courts, is accountable to the voters.

I'm not a huge fan of the Smith opinion but it makes arguable sense, and is hardly "activist" in upholding the state law in question. Don't like the result? Change the statute.

One could note that there are perverse consequences to the opposite rule in Buckhannon, since the opposite rule would disincentivize defendants from altering their behavior voluntarily after a suit was filed. Again, that's a basic statutory construction issue and easily remedied by Congress if they don't like how the Court interprets the phrase "prevailing party"

Yes, I know, liberals believe that Brown v Board of Ed provides absolution for anything any court could do ever after. There's actually copious scholarship showing that an originalist interpretation would have to yield the same result, as you'd have a hard time arguing that a constitutional amendment decreeing equal protection of the laws regardless of race can be squared with official segregation without rendering it meaningless.

I'm not arguing that the constitution means only what a transient majority of the population thinks it means; the whole point of a constitution is to memorialize a societal consent to certain rules. You, however, are arguing that the constitution means only what a transient majority of the Justices think it means, if you endorse the notion that the constitution can and should be read to place beyond popular sovereignty issues that were never expressly part of that consent.

Posted by: The Crank at April 27, 2005 1:32 PM

>"The core ideology of people like Justice Scalia is the idea that judges need to rest their rulings on a foundation of democratic legitimacy - to draw their power solely from the express consent of the governed - rather than from some higher law never expressly enacted by the people in any form. "

Stopped reading here.

OK, I didn't really stop reading there. But I might as well have. Sorry, but you lost a whole bunch of credibility with me once you finished that sentence.

Posted by: Inquisitor at April 28, 2005 12:18 AM

It is not democratic to allow a temporary majority to decide on what rights a minority shall or shall not enjoy. Neither would it be democratic to always leave this up to an unelected and unaccountable judiciary. To say it is OK to filibuster liberal judicial nominations but not conservagtive ones is ridiculous. Compromise is required. That is why the filibuster may be necessary. Obviously this whole affair is a dress rehearsal for a future Supreme nomination. If the Dems filibuster a future nominee because she/he is insufficiently activist they would ultimately lose and deserve to do so; but we would all lose if a temporary one party majority in the Senate, House, and Presidency gets to name judges for life without any serious consideration.

Posted by: jim linnane at April 28, 2005 4:02 AM
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