January 12, 2006

Substantive Thoughts on the Alito Hearings

In the comments section of another thread Moon has raised a reasonable point- while there is a good bit of posturing and theater in this thing (I'm looking right at you Senator Coburn) there have also been moments of honest discussion about serious legal/constitutional issues. So if any one has any comments or thoughts about those that they'd like to share with us, please post those comments here. Did you learn anything? Were fears reinforced? Are you happy or relieved because now he seems more supportive of something or other than he did before? Let us know.

Posted by armand at January 12, 2006 11:12 AM | TrackBack | Posted to Law and the Courts


Comments

OK, if we're moving here, then I'll post replies here.

moon, I'll rephrase my objections. I haven't watched any of the hearings, though I have read about Alito (pre-hearings). My take on him was that he was very conservative, an originalist, favored executive power (almost without limits; I don't know what limits he would agree to), didn't like Roe (but hadn't said so explicitly in a couple of decades), and generally favored business.

Now, had I watched the hearings, which of those opinions would I have changed?

Posted by: baltar at January 13, 2006 12:07 PM | PERMALINK

Below, Baltar asks for my read on Drum's post on the confirmation hearings and on Alito generally, and here I oblige.

Drum, identifying Alito as "[a] smart, decent, small man[,]" writes:

[Alito] was described by various witnesses, some admiringly, as always deciding cases on the narrowest possible grounds. This is generally a virtue in a judge, but not always and especially not always in a judge of high or highest appellate jurisdiction. Brown v. Board of Education could have been decided like Plessy, or so narrowly as to demand only (say) equal per-pupil spending, but that wouldn't necessarily have been a better holding. Alito knows the law, but he doesn't seem to know, or care about, The Law. Every issue in the hearings was immediately reduced by the nominee to a technical question of almost bureaucratic rule manipulation. This approach is a good one for nearly all the cases courts hear, but it's not what the Supreme Court is about. * * * [T]he man appears to be completely comfortable dealing with frightful social wrongs by moving the issue down the hall to another office. Sometimes the Court has to do this, but to Alito it's an especially good day's work, not a disappointment. * * * If the US Supreme Court is a good place for a man whose ability to prove "not my job" is unparalleled, Alito should be confirmed. He will focus enormous rational power on issues not central to the cases before him, and solve problems peripheral to the work we need the court to do.
Actually, my response to the main thrust of Drum's argument, such as it is, is relatively brief (the comment in full, however, is hardly brief), as I rarely find blatantly question-begging arguments worthy of serious discussion, and this is about as circular as one gets. Drum assumes the premise most contentiously at issue here: that a Court with an expansive view of its power is better for the polity than one that exercises restraint. This is a legitimate view, a paradigmatically liberal view really, but it is not a consensus view or even, necessarily, a popular one.

What Drum mocks as a not-my-job approach, moreover, is actually canonical. Justices of liberal and conservative stripe alike tend generally to avoid constitutional issues that are not before them. There is very sound reasoning for doing so, reasoning eloquently articulated by Alito during at least one portion of the hearings I was able to listen to -- to wit, because constitutional decisions are tremendously powerful and almost impossible to legislate around, they should be issued only where the situation manifestly requires it. Where one can decide a case on statutory grounds, one should do so because these decisions are less aggressive and do not trump the legislature's coequal role in government and its somewhat more substantial constitutional role in enacting the policy sought by the people, who in theory still run the show, or are supposed to run the show.

Does this sound like I've suddenly moved way right? If so, I've done so in the company of a goodly number of purportedly liberal judges and justices. Indeed, in most, if not all jurisdictions, there is an affirmative canon of construction (read, relatively firm rule dictating one's approach to statutory interpretation) requiring that cases be decided on non-constitutional grounds where that is possible. I won't run the search because I know the outcome, but one easily could find cases by Ginsburg, Stevens, Warren, and any Pick-Your-Liberal-Justice, citing that very principle. Drum's refusal to acknowledge this legal commonplace, to act as though Alito's statement of same somehow reflects his "smallness," is absurd.

Finally, Drum's conjecture that Alito likes effectuating what Drum considers (from his obviously deficient understanding of the law) to be unjust results, that he considers issuing a limited ruling instead of a constitutional ruling a "good day's work," is risible and warrants no response. How could Drum possibly know, or possibly glean from the dry and staid confirmation hearings, what Alito does or does not take pleasure in. Alito does his job as he understands it, and that in itself is all one can ask of a judge. I don't mean this aspirationally; I mean, the only alternative to a judge who does his job as he understands it as a judge who does his job as he does not understand it, which almost by definition connotes a corrupt and impeachable judge.

Drum also trots out a common knee-jerk reaction (Leahy made a big show of it yesterday) to the practice of calling upon sitting judges to comment on Judge Alito's integrity in judging, arguing that this is somehow improper because Alito may be called upon to review their cases and somehow will be biased by their praise. This is preposterous on its face. If this is improper, if this is thought necessarily to skew Alito's subsequent review of the complimenting judges' opinions, then no Justice who once sat on a circuit court can ever review opinions filed by former colleagues with whom s/he served contemporaneously. Why, you ask? Because when judges concur or dissent to colleagues' writings, or respond in majority opinions to colleagues' concurrences and dissents, it is a pervasive practice to shower the judge with whom one disagrees with praise -- e.g., "My learned colleague argues ably in support of his reliance on analysis A, but I find B to furnish the appropriate standard in this case"; "I respectfully disagree with the erudite majority opinion because . . ."; and so on. For that matter, what of an attorney who compliments a judge at oral argument for asking a particularly incisive question? Should a justice, upon this compliment, thereafter recuse himself from consideration of any case subsequently argued by this attorney? That would add a whole new weapon to the bar's arsenal. Don't like a judge? Just compliment him on the record at the first possible opportunity, and move for recusal in any subsequent case.

This sort of thing is de rigeur, and has no place in a proper recusal analysis. That judges and attorneys by and large respect each other, and are willing when called upon to discuss the nature of their regard, is simply a product of the relative collegiality of the bench and bar, not proof of some smoky-back-room impropriety. Really, Leahy was grasping at straws with this, and that Drum uncritically adopts up such a transparently ridiculous argument is not to his credit.

I have made clear that I don't like Alito for the Court ideologically, and that in light of his apparent mendacity regarding CAP I think there is a legitimate basis to oppose his confirmation. That said, Drum's comments just join the drumbeat of ill-informed, reflexive, and ultimately hollow critiques of Alito I've criticized at great length elsewhere.

In short, I'm not impressed.

Posted by: Moon at January 13, 2006 12:34 PM | PERMALINK

Baltar, I don't know that you'd have changed any of those opinions you formed prior to the confirmation hearings. I changed a couple of mine, but that's me. Regardless, at least you would have been getting your information first-hand, instead of from demonstrably dubious sources like Drum, et al.

I'm not saying we can't or shouldn't rely on commentators, like Drum, whom we find often get it right. But merely assuming or adopting second-hand critiques of matters as important as confirmation hearings for a man who purports to sit on the Court for perhaps the next thirty years seems to me to be negligent and in any event uninteresting. At least Drum's (flawed) critique appears to be based on his own first-hand reactions to what he saw from the floor of the Senate. That I don't agree with his comments doesn't mean I don't respect his endeavor.

Posted by: Moon at January 13, 2006 12:39 PM | PERMALINK

moon, I think you are somewhat off-base. I didn't read the article (NOTE: it's not Drum; Drum was linking to samefacts.com, and the author of the piece was Michael O'Hare, who teaches public policy at UC Berkeley) as saying that judges should have an "expansive view of its power", but only that judges should recognized that (at times) they need to have an expansive view of their power. In other words, the incremental approach may work 80%, 90% (heck, 99%) of the time, but at other times the Supreme Court is the only court that can take giant leaps forward (Brown v. Board of Ed., Roe (whether it's good law or not, it's a giant leap forward), the Watergate case that forced Nixon to give up the tapes, etc.). O'Hare argues that Alito showed no signs of recognizing the (rare) importance of the court for those issues.

Posted by: baltar at January 13, 2006 12:59 PM | PERMALINK

So Moon do you think we should read anything into the fact that Alito wasn't nearly as clear or supportive in describing Roe v. Wade as he was other decisions?

Just as one example - It was noted that he'd made comments in opposition to the independent counsel law, but then described Morrison v. Olsen in terms that suggested it was a very strong precedent (so, seemingly deferring to stare decisis, even if he didn't necessarily think the law was proper or a great idea). His wording on Roe (which was also a lop-sided decision, and is considerably older) seemed to leave much more room for reconsideration.

Posted by: Armand at January 13, 2006 01:29 PM | PERMALINK

my apologies for misattribution, but i'll respond simply that even if that view of Alito is correct, that he takes a purely incrementalist view of the role of a Supreme Court justice, he's by no stretch of the imagination alone among judges, and indeed keeps company with some judges whom others regard highly. moreover, to the extent this view sounds principally in his discussion of his own decisions on the 3d, as the excerpt suggests, it still reflects a fundamental misunderstanding of the role of judges generally. an intermediate appellate justice exceeds the ambit of his commission when he starts wandering afield of binding supreme court precedent. alito has not refrained in the past from commenting on when he believes the governing standard leads to an unjust result (the search case for which he is unfairly villified provides one such example), but that is as much as he has been free to do heretofore in his career.

Posted by: moon at January 13, 2006 01:32 PM | PERMALINK

moon, you use the phrase: "it [the link I gave] still reflects a fundamental misunderstanding of the role of judges generally". What is the role of judges? Who defines the role? Where did you get your definition of the role of judges?

The fact that Alito is an "incrementalist" (if that phrase is accurate) may be relevant. Who says that we want incrementalists on the Supreme Court? Who says that the qualification for being any other sort of judge (Appelate, Federal, State, City, etc.) are relevant for Supreme Court judges?

The Supreme Court is fundamentally a political position, not legal. Why should we look to legal qualifications to debate who should (or shouldn't) be on the court?

Posted by: baltar at January 13, 2006 01:47 PM | PERMALINK

baltar, this is getting too polarized to serve much purpose, but i find in your last comment similar question-begging to that i excoriated from the drum post (or quote (or whatever)).

in order:

the role of intermediate appellate judges is reflected in the constitutions of the relevant jurisdictions, the oaths of office requiring fealty to the governing decisions of superior bodies that judges swear in accepting their commissions, and the principles of judicial review as adapted to the pervasive (but not universal) three-tier court system of fact-finding court, intermediate appellate court (to which most litigants have at least one appeal as of right), and supreme court. it is inconsistent with the duty of an intermediate appellate court to flout the rulings of the court that issues final and binding precedents due to disagreement, a perception of profound injustice, or anything else.

for alito on the 3d circuit, the only court to which he was beholden was the united states supreme court (once in a while, he also would have been called upon to deferently apply state law according to the relevant state's articulation of same), but to that court he was beholden beyond all cavil. find me one authority, one crackpot right- or left-wing loony authority, that says something else and i'll decimate the claim in greater detail. but for my money, this principle is so self-evident and canonical that it requires no more discussion. if intermediate appellate courts were not bound to the decisions of the courts above them, jurisprudence would be chaotic and entirely capricious. you think it's bad now? it could be ever so much worse . . .

regarding incrementalism, i agree, "who says?" indeed. thing is, if you write from an unelaborated or -defended presumption that incrementalism is bad, you have claimed half the territory at issue by fiat rather than by reasoned argument. because incrementalism is a vaunted idea about jurisprudence reflected in formal rules (such as those canons of construction i've described) and scholarly discussion ad nauseam, and is not even vaguely coextensive with any ideological orientation, to claim that territory without defense is to make no argument at all. so you think supreme courts should wander as far afield of prior precedent and legislative will as they choose? you'll rue your own wish when your ideological opponents dominate the court of last resort. i prefer incrementalism, generally, because i believe stability serves the common good, and for more nuanced reasons i'd be happy to share if someone else were to defend the counterproposal with real robustness. i don't really like the idea that abortion can be wholly relitigated de novo every time the court changes composition. and i do believe at least to some extent in "super-precedent." are there injustices that i believe require (or have required) more dramatic action? unquestionably. but i take those cases one by one, and i don't presume to impose my peculiar slate of pet issues on anyone else, or to claim that someone's integrity or jurisprudential qualifications hinge on his or her sharing my selection of peculiar injustices that i believe warrant dramatic action.

finally, your claim that the court is fundamentally political rather than legal is conclusory and impossible to respond to. a one-sentence articulation of either pole on the political-legal spectrum is more or less incoherent. furthermore, for all the bitching about how we don't want political hacks of any stripe on the Court, your pithy suggestion suggests the opposite: that political hacks is precisely what we want. surely that's not what you meant, but that's what it sounds like.

Posted by: moon at January 13, 2006 02:28 PM | PERMALINK

finally, your claim that the court is fundamentally political rather than legal is conclusory and impossible to respond to

I'm also curious about what you mean, Baltar. Do you mean political in the sense of a political appointment or political in the sense of "justice like Thomas are on the court to practice politics"?

Posted by: binky at January 13, 2006 03:34 PM | PERMALINK

so i retraced my steps, and just wanted to pause to apologize for misattributing the O'Hare thing to Kevin Drum, since i hadn't done so unequivocally as yet.

that said, Drum's uncritical presentment and general endorsement of O'Hare's comments suggests, for the reasons already stated, that he's guilty of the same i-don't-have-to-pay-attention-because-my-mind-is-already-made-up-about-the-hearings-and-alito diffidence i'm giving baltar a hard time about. drum could have noted the comments without editorial agreement. but however briefly, he appears to have endorsed the o'hare view, and to that extent my criticism extends to him as well as o'hare.

Posted by: moon at January 13, 2006 04:31 PM | PERMALINK

moon/binky, to clarify: the Supreme Court seems, to me, a fundamentally political (not legal) position. Of course, the court is a legal instrument, but given that the only review/check on the court is (A)the executive and/or legislative branches (fundamentally political) and (B)future Supreme Courts to overturn "incorrect" decisions of previous courts, you don't really need "legal" people on the court. Unlike all lower courts (federal/state), who have to apply precedent logically and accurately, the Supreme Court can do whatever it wants. It can choose to act incrementally (if it wants), or not. It can cite legal precedent accurately and incrementally, changing the law slowly (if at all) within the bounds of previous decisions, or it can create new legal precedent out of nothing (Roe/Griswold, or Bush v. Gore as a great example). The Supreme Court isn't bound by any precedent, other than the norms it creates for itself.

It's a fundamentally political body (acting like a legal one), and I'm not sure why we shouldn't treate nominees as political, not legal, issues. Certainly, given that it is a legal body, nominees should have legal experience/ability, but that doesn't mean you only look at legal qualifications when deciding who is (or isn't) qualified. In fact, I'd argue that the political qualifications are significantly more important (even today). Honestly, who will argue that Alito is the best qualified legal candicate? Does anyone want to argue that his political positions hold no importance in his selection? Let's call a horse a horse, and dispense with pretending this is about legal issues at all, and debate the political issues primarily.

The Kabuki theater of these hearings does nothing for "democracy" in this country.

Posted by: baltar at January 14, 2006 11:28 AM | PERMALINK

I'll grant you the heuristic that the Court can do whatever it wants, bound only by internal norms. Those norms, however -- stare decisis, to cite one rather mammoth example -- are essential to the Court's legitimacy, as is the executive's willingness to serve as the Court's enforcement arm. The importance of facial legitimacy and rational progression in the law is oft-cited by the Court, most notably in the decisions following Brown insisting that things be done quickly and prodding state and federal authorities to see to it, and again in portions of Casey in which the plurality discussed the importance of not giving way simply due to widespread protest, which might arguably have been the more political decision.

I don't dispute that the process of appointment is political, and that in some sense nominees therefore are politicians. That said, I think your description of what confirmation ought to be far more aptly describes what the hearings are than its converse. These hearings have focused a great deal on political orientation, and where they've moved to interpretive philosophy, they nonetheless have trod political ground insofar as interpretation has a certain political content to it that cannot be denied.

Regarding the benefits to democracy, I maintain that, like people who stay home on election day, those who mock the damage to democracy putatively caused by hearings of an assumed stripe aren't doing democracy any favors, either. I don't like Alito, and the hearings on balance were underwhelming, but there was plenty of democracy going on just the same. It's a pity more people -- academics and laypeople alike -- couldn't be bothered to pay closer attention. The laity's apathy isn't really the Senate's fault.

Posted by: moon at January 14, 2006 03:43 PM | PERMALINK

OK, if the Supreme Court is so very conservative and incremental, explain Bush v. Gore to me.

Maybe it's just me, but I think I gave up on the Supreme Court that day.

Posted by: baltar at January 14, 2006 03:59 PM | PERMALINK

Brown, Roe, and Bush, among some other touchstone cases (arguably, Korematsu, and most certainly the "Change in Time That Saved Nine" (those cases reflecting the Court's New Deal about-face during FDR's tenure just as FDR prepared to initiate his Court-packing scheme)), were unabashedly political decisions. But that says little more than that the Court, like virtually any other institution, sometimes exercises extraordinary means in the interest of self-defense or in what it perceives to be satisfying the mandate of its constituency. Hell, even Marbury was a brilliant political maneuver, and now we cite it as the basis for the principle of judicial review.

In the modern era, however, the Court has decided anywhere from 75 to 200 cases per year. The less celebrated decisions often are more consequential, as any attorney or scholar grounded in the real-life effects of judicial decisions who seriously follows the Court will tell you. In many ways, your day-to-day life is far more demonstrably girded by these under-the-radar decisions than it is by the splashier precedents.

Bush v. Gore was a jurisprudential debacle, and I disagree both with the decision and the Court's basis for taking the case in the first instance. But reasonable people certainly can differ on whether the country faced a grave constitutional crisis, and evidently the Court believed that to be the case, and so interceded. Brown and Roe have been roundly, and validly criticized jurisprudentially by scholars and practitioners on the right and left, but less so for their results -- politics again, I don't dispute.

But these exceptions serve to highlight the more readily generalized reality: that the Court tends to take baby steps in the vast run of cases, and that it is the justices' jurisprudential rather than facile ideological commitments that have the greatest predictive power in those cases. This, at least to me, illustrates a fundamentally legal-minded body. Thus, for my money, examining jurisprudence as such is the best way to scrutinize a nominee for the high Court. Such an examination may look political in the breech, and certainly it overlaps with more purely political inquiries, but that by no means is to suggest that the Court is the purely political body that the House or Senate is. Not even close.

Posted by: moon at January 14, 2006 05:57 PM | PERMALINK

I never said the Court was a purely political body (or at least as political as the Executive or Leglisature). And, of course, the Court handles mostly "normal" cases, and does so incrementally.

Of course, one could make the exact same argument about the Executive and the Leglisature. Congress passes hundreds of laws, proclimations and statements a year. Only a very few of them are relevant, and of those only a very few are controversial. The vast majority are dumb (declaring "American Textile Day") or major. Sure, there are political fights about every bill, but there are fights on the Court (there are nine of them, and very few decisions are unanimous) as well. The same argument can be made about the Executive: it, daily, does hundreds of things, only a very few of which are "important" to everybody.

All the branches of government are incremental (the best guess about this years budget is last years budget). The point of putting conservatives on the Court is the same as putting conservatives in the House and Senate: so it can (incrementally) move the country in the direction of the beliefs of the party, and can (at times) move the country in great strides in that direction.

The Court may function in a different arena than the Executive or Legislature, but it doesn't seem to operate (in any fashion) at a less political level. Thus, nominees should be judged primarily on a political level (they should be qualified to be judges, just as people should be qualified to be President or a Congressman). It is, and remains, an inherently political position.

Posted by: baltar at January 14, 2006 06:12 PM | PERMALINK

We've pretty much talked this to death. I'll merely point out that you didn't directly take up my jurisprudence v. ideology distinction. It seems to me, to sustain your position you'd have to find in jurisprudence more ideology than I do, though I have conceded, and reiterate, the two sometimes overlap.

I don't have the statistics to dispute your claim regarding the infrequency of unanimous decisions, but I will note that 5-4 decisions are less common, in the broad run of cases, than most people realize. This, to me, suggests that the jurisprudential imperatives to which I attribute much of the run-of-the-mill work of the Court are by no means coextensive with such ideological imperatives as interfere with the individual justices' decisionmaking processes. Rather, I think the frequency of 7-2 and 6-3 decisions suggests that many justices remain committed to voting inconsistently with their own ideological commitments, such as they are, when the law is fairly clear, as it often is.

Stare decisis is the determinant in this distinction, and notwithstanding the less contentious if trivial actions of congress, the latter body has no analogous doctrine circumscribing its actions. And it's not enough to observe that the Court occasionally flouts stare decisis; that it does so only occasionally clearly distinguishes it from the more political branches. To the executive, which in the final analysis may act by fiat (with some increasingly disregarded constitutional exceptions), there is no real analogy.

Posted by: moon at January 16, 2006 05:33 PM | PERMALINK
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