Author Archive | Jonathan H. Adler

Judicial Obstruction — Three Different Kinds:

Some defenders of the judicial filibuster suggest this is simple payback for Republican mistreatment of Clinton nominees from 1995-2000. Others argue Senate Democrats have no choice because other, more traditional means, of blocking nominees (e.g. blue slips) have been curtailed. Implicit in some of these arguments is the view that blocking a judge is blocking a judge, no matter how it is done. Matthew Yglesias, for instance, argues that “If we’re talking about blocking judges, we should be talking about all the ways (blue slips, failure to schedule hearings, etc.) that nominees have been blocked from getting floor votes.”

While I agree with the principle that all nominees should get hearings and a floor vote within a reasonable period of time – and that it was wrong for both Republicans and Democrats to block action on Clinton, Bush, and Reagan nominees in years past – I am not convinced that all forms of delay are equivalent, or that principled opposition to one suggests principled opposition to them all. It seems to me that there are significant differences between the majority’s control of the Senate agenda, the traditional use of blue slips by home state Senators, and a minority filibuster, and that it is reasonable to oppose the obstruction or delay of nominees through some of these methods but not others.

Majority control of the Senate entails certain prerogatives. Among them are the control of committees and the Senate’s agenda. The party in control of the Senate decides what business to conduct and when to conduct it. As a general matter, it is not “obstruction” when the Senate majority refuses to take up issues supported by the President, as the Senate is entitled to have its own priorities. Thus, one should expect that a Senate majority will consider nominees it likes [...]

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The Liberal Academy Again (Again):

The Rothman, Lichter, and Nevitte study purporting to show liberal dominance among university faculty is now available on-line. Here is the abstract:

This article first examines the ideological composition of American university faculty and then tests whether ideological homogeneity has become self-reinforcing. A randomly based national survey of 1643 faculty members from 183 four-year colleges and universities finds that liberals and Democrats outnumber conservatives and Republicans by large margins, and the differences are not limited to elite universities or to the social sciences and humanities. A multivariate analysis finds that, even after taking into account the effects of professional accomplishment, along with many other individual characteristics, conservatives and Republicans teach at lower quality schools than do liberals and Democrats. This suggests that complaints of ideologically-based discrimination in academic advancement deserve serious consideration and further study. The analysis finds similar effects based on gender and religiosity, i.e., women and practicing Christians teach at lower quality schools than their professional accomplishments would predict.

As I’ve noted before, I don’t think that such disparities are primarily the result of conscious bias. While I know of cases where ideological bias torpedoed a candidate — and I know of schools that would not interview me because of my political views — I believe this is the exception, not the rule. In most cases, I believe other, more subtle factors play the dominant role. As I wrote in 2003:

Most of the hostility faced by conservatives (and libertarians) is not explicit, and often not conscious or deliberate. In many cases, the subject matter and methodology of conservative scholarship is simply of no interest to those on the left (and probably vice-versa). At schools where there are no tenured conservatives, job candidates and junior professors may be left without a “champion” to help them navigate

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The Liberal Academy (Again):

The Washington Post reports on yet another study documenting the leftward tilt of the academy. The study is published in the March issue of The Forum, an online political science journal.

The Post summarizes the study’s conclusions as follows:

By their own description, 72 percent of those teaching at American universities and colleges are liberal and 15 percent are conservative, says the study being published this week. The imbalance is almost as striking in partisan terms, with 50 percent of the faculty members surveyed identifying themselves as Democrats and 11 percent as Republicans.

The disparity is even more pronounced at the most elite schools, where, according to the study, 87 percent of faculty are liberal and 13 percent are conservative. . . .

The findings, by Lichter and fellow political science professors Stanley Rothman of Smith College and Neil Nevitte of the University of Toronto, are based on a survey of 1,643 full-time faculty at 183 four-year schools. The researchers relied on 1999 data from the North American Academic Study Survey, the most recent comprehensive data available.

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Bush’s Worst Appellate Nominee:

I have been a big fan of President Bush’s judicial nominations, especially to the appellate courts. By and large, President Bush has appointed extremely capable and distinguished attorneys to the appellate bench. Indeed, the lowest ABA rating of any of Bush’s initial nominees was received by Roger Gregory, a Clinton appointee Bush renominated in a (failed) effort to build good will with Senate Democrats. While there is no question the majority of Bush nominees have been quite conservative in their judicial philosophy, I believe the vast majority of them will acquit themselves with dignity, display intellectual rigor in their opinions, and adhere to legal principle. Americans should be proud to have the likes of John Roberts, Michael McConnell, Jeffrey Sutton, Jay Bybee, and even William Pryor on the federal bench (even if the latter was given a recess appointment).

Bush’s nomination of William G. Myers III to the U.S. Court of Appeals for the Ninth Circuit does not measure up to the standard set by this administration with the bulk of its judicial appointments. While I have no doubt that Myers is a capable attorney, I do not believe that he is particularly well-suited to the federal bench. While serving as solicitor for the Bush Interior Department, Myers failed to distinguish himself in any meangiful way. To the contrary, he appeared to adopt knee-jerk policy positions with relatively little thought or consideration. In one case, he pushed through a doctrinaire and poorly reasoned interpretation of a Supreme Court case in which he was involved — an interpretation which may have satisfied Myers’ pro-grazing bias, but undercut the administration’s efforts to adopt market-based reforms on public lands. Worse, at least in the context of Myers’ judicial nomination, the legal opinion had to be subsequently “clarified” [...]

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Pryor Appointment:

The press is reporting that President Bush will install Alabama Attorney General William Pryor as a judge on the U.S. Court of Appeals for the Eleventh Circuit with a recess appointment. Readers of this space may recall that I am a Pryor fan (see here and here. I believe he has been unfairly maligned by his opponents, and that his record demonstrates his ability and commitment to separate his personal ideological views from his legal obligations. (A point he has reinforced recently. See here and here.) I believe he will be a splendid judge.

Nonetheless, I cannot say I am particularly happy about the appointment. While there is ample precedent for the recess appointment of federal judges, as documented in this Federalist Society White Paper, I am not a fan of the practice. I believe there is a qualitative difference between using the recess appointment power to fill vacancies within the President’s own administration and using it to install judges. Thus, in my view, it was wrong when President Clinton gave a recess appointment to Roger Gregory, and it is wrong for President Bush to give one to Bill Pryor. Yet given the inmcreasing partisan acrimony over and obstruciton of judicial nominations, it is certainly understandable why the Administration chose to take this step, but it is no less regrettable. [...]

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Covering the Judiciary Committee Memo “Scandal”:

Jack Shafer’s article in Slate on media reporting of the Senate Judiciary Committee memo scandal, highlighted by Eugene below, is definitely worth a read. He points out how much of the coverage, especially that in the Boston Globe, has been way overblown. Shafer’s bottom-line: The Senate staffers’ actions may have been wrong, and perhaps even deserving of censure, but they are hardly the “crime of the century.” Indeed, there is no allegation that anyone surreptitiously gained access to another staffers computers through hacking or another nefarious means. [Note: Contrary to Mathew Yglesias’ suggestion, Senate staffers did not “break into” Democratic staff computers, nor does Shafer say that accessing the files was “okay.”]

Shafer also makes the broader point, a point which merits underlining, that the decision of some media outlets to focus on the acquisition of the memos, rather than their content, is quite out of character. As Byron York noted, in a piece Shafer cites approvingly, “One might expect most journalists—normally the recipients of leaks and protectors of leakers—to be more interested in what the documents say than in how they were obtained. “One might expect most journalists—normally the recipients of leaks and protectors of leakers—to be more interested in what the documents say than in who leaked them.”

As evidence for this point, consider that illegally or unethically obtained documents have often surfaced in the context of judicial nominations. Last year, Senate Democrats sought to use stolen documents to impugn the integrity of 11th Circuit nominee William Pryor. Most news accounts focused on the allegations, not how they became public. Similarly, when Clarence Thomas was nominated to the Supreme Court (but before the Anita Hill story broke) someone on the U.S. Court of Appeals for the D.C. Circuit leaked Judge Thomas’ forthcoming opinion in a [...]

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