I see that in the hearings Charles Fried makes a point similar to mine. August company for me, less so for him. The professors complaining about Judge Roberts continue to fall into the same trap. The notion that the courts should be a beacon for some particular substantive agenda rather than simply for scrupulous adherence to the law and the Constitution is troubling, to say the least.
Regarding one of the comments suggesting that I assume there are correct legal answers, I would say that I do not assume it, I assert it as correct and am happy to defend that assertion as to most cases. Even as to the particularly difficult cases that cannot be answered by text, history, and other relatively concrete factors, there are still numerous rules of thumb or cannons of construction that guide a judge in resolving such uncertainty. To the extent such cannons are part of the established precedents, they too help reach the "correct" answer even absent certainty from text or history.
If what people are concerned about is Judge Roberts's tendencies in areas where there are still ambiguities after faithful application of text, history, and precedent, then I think he has laid that out pretty well. He would be modest and respectful of the authority of the other branches and in that respect is likely to uphold government action in such cases, for good or ill. A narrow interpretation of constitutional limits on federal power thus should please liberals who favor expansive federal power. But that same reserve might well mean that he will not offer exansive interetations of other aspect of the Constitution as well — those restricting government power relative to individual liberties. Once again, that is the same modest view, but with different potential policy outcomes. Either way, the tendency is not based on substantive social policy considerations, but on judicial considerations and balance-of-power concerns.
It is the social policy that critics and Senators keep harping on, not the judicial policy issues that might well have an influence on the "correct" answer. As to the judicial policy questions, if you want a justice who will be respectful and deferential to the political branches you cannot also insist on a judge who will be a champion of individuals asserting their potential, yet ambiguous, constitutional rights against those very political branches. The fight over an aggressive vesus a deferential approach to enforcing the Constitution is a valuable one to have and one that Roberts has indeed weighed in on. (I might well take a different view on that issue than he does, but his approach is certainly the paradigm of judicial restraint, which seems to get lip service from both sides.) The question of whether he will impose his social policy preferences on areas of ambiguity strikes me as precisely the wrong view of the courts and I, for one, would hope that jurists would studiously resist such an approach. Judge Roberts has been definitive about that point as well.
Related Posts (on one page):
- Disconnect Part 3.
- Disconnect Part 2.
- Disconnect on the Role of the Courts.
The rest of the American public, including anyone who values fairness and justice, want a Justice who'll be fair and just under the rule of law without regard to whose side wins.
It's abundantly clear who's going to be pleased by Judge Roberts' confirmation. What's odd is that that ought to include folks from all sides of the political spectrum, so long as they value fairness and justice over "always winning."
"Promise me that my ox won't be gored, and I'll give you my confirmation vote." That's a damned poor way to try to fulfill one's advice and consent obligation. Bully for Judge Roberts for resisting the temptation to bargain with the craven sort of pandering senators who're proposing such deals.
Thank you for a well-expressed post on a very important subject. Bill (Beldar) Dyer also punctuates the point. As crusty old trial lawyers, he and I know what we want in a judge. Someone who has no agenda other than to get it as right as s/he can. It is clear to me that Justice Roberts is that kind of person. Unlike some, he not only tries to do this, but has the intelligence, skill, talent, discipline and work ethic to do it.
I predict from what I have seen these past four days that he will be a worthy successor to past giants of the bench.
Further, I teach statutory and common law subjects, and in a significant number of "hard/close cases" I wouldn't argue one holding was "correct" in the sense that 2+2 =4 is correct. I don't see why Constitutional law would be easier.
Finally, I'll take a page from Akhil Amar's book (article?) and say a lot of the angst over Supreme Court appointments would be eliminated if we set time limits (10 years?) for their appointments. But that's another issue.
Corruption of the judicial concept? Of course. But we seem to have achieved a strange asymmetry in the nomination process, where a president is permitted to nominate a judge based upon a belief that certain substantive results will be achieved, but a senator is not permitted to deny confirmation on the same basis.
As a political matter, there is no question that the bottom line is votes. But I think it is unrealistic for the minority party in the Senate to persuade the President to nominate judicial candidates who will rule the way their consituents want them to.
I don't think the President will have any problem whatever getting someone through the Senate who sees things the way generally the way he does given the 55-45 split. Senators can deny confirmation on any basis they want. They just have to justify it to their constituents the next election.
Second, let me add that there was a whole 'nother clause there. If you don't mind me putting it to you directly:
Do you think that the correctness of a theory of interpreting the Constitution is functionally independent from the results of that theory?
I'm glad you're a Dworkinian and believe there are "correct" answers to legal questions. But I hadn't really questioned that. What I wanted to know was, and is, whether a so-called correct theory of constitutionalism, if it resulted in Plessy v. Ferguson being upheld instead of struck down, would somehow become less correct for you, or whether its correctness drifts on forever, irrespective of practical consequences.
I don't think that anyone, no matter how fierce their commitments to the 'right answers' that Ronald Dworkin always insisted were really there, believes in a duality of correct- / incorrectness to theories of interpreting ambiguous sources. Holmes didn't, he and identified a range of plausible interpretations of the Constitution where judges should uphold laws; only if no reasonable reading of the Constitution would sustain a law should the Court strike it down. I shan't challenge you to justify that you're smarter than Holmes, but it should give us pause.
Of course, the hearings are too reductionist in failing to consider the law at all, only policy. But they reflect a pretty undeniable truth -- that statistical evidence demonstrates that justice ideology is very important to decisions. I favor the elevation of Roberts, though he will be influenced by his conservatism, he will be thoughtful and anything but kneejerk, I believe. I suspect he will find a not radical path to his conservative results, and I think that's fine. But the Senators' probing of his ideology is reasonable.
Well, I realize that Roberts needed to correct Kennedy on that, but the fact is organizations like EEOC ARE UNAMERICAN!!!
The ONLY thing I've heard--and I've not followed all of it, just the snippets on such talk shows as I've been able to hear--that I really liked was when Roberts stated that "he's not for the little guy OR for the Big Corporations; he's for the CONSTITUTION!!!!"
That's tellin' 'em, John!
Of course, given the Tenth Amendment, if anything the degrees deference to the legislatures should be reversed.
Federalism is the best outlet now for progressives, something they'll realize sooner or later.
Yes, and as we all know Spectre is
a RINOthe quintessential Republican.Which is true, but the irony and absurdity seems lost on a man who doesn't seem to understand that a) he's basically saying "let me do anything I like, but keep close tabs on this guy", and b) while it's true that the President has indeed accreted vast extraconstitutional powers, SO HAS CONGRESS! The President has managed to achieve this because Congress has had little or no inclination to guard its own powers and perogatives, and the Congress has managed to achieve this because the Supreme Court has been broadly deferential to it for so long that I think most legislators genuinely do believe that Congress has the power to legislate on any subject it likes. It is due for a rude awakening, not merely the brief stir produced by Lopez. Perhaps then, it will start doing its job and take back some of the power the President has stripped from it.