A Race to the Bottom:
A commentator on another thread posted the following:
Clinton did not set out to nominate Ginsburg for the court. He set out to nominate Bruce Babbit, who, by all means, would have had the qualifications equivalent to Roberts. Instead, Orin Hatch told Clinton that Babbit would not be confirmed by the Senate, and gave a list of names which included Justices Breyer and Ginsburg.
This raises the following issue that I know serious Democrats are now really pondering:

Do Democrats want to support (or only tepidly oppose) a weaker conservative appointee who will be less dangerous than a highly qualified nominee with the judicial abilities to execute a serious judicial philosophy? Do they put their concern for judicial philosophy ahead of their concern for competence? Indeed would they not affirmatively prefer a less competent conservative on the bench to a more competent one? If you were an influential Democrat, how would you counsel a Democratic senator on this decision?

Put another way, did Orin Hatch make a mistake when he warned President Clinton off Bruce Babbit? Would Republicans be better off today with Babbit and not Justice Ginsburg on the Court? Should this be the criterion that ultimately determines the vote of a senator?

If the answer to these questions seems obvious--that of course Democrats should prefer the weaker Republican nominee, then does this not turn the confirmation process on its head. Opponents of a president screening the best and the brightest from the Court (as has been the obvious strategy for appellate court nominees) by means of the confirmation process. And, if implemented by both parties, would this not create "a race for the bottom" when it comes to the judiciary?

I have been very impressed by the insightfulness of the comments on the various threads concerning the nomination process, on both sides. I am very interested in the views of our readers on this matter.

Update: I appreciate the comments attempting to get the facts straight with regard to Bruce Babbit. But that is a side issue to the questions I was trying to raise and get feedback on.

Jeremy (www):
I'd suggest that Senators should determine whether a nominee is qualified for the bench as a threshold matter, without considering the judicial philosophy or the politics of a nominee. Republicans and Democrats alike should oppose unqualified nominees regardless of their anticipated judicial philosophies. In my opinion, that should lead most Senators to oppose Miers without even getting to the question of judicial philosophy.

However, if a nominee is thought to be qualified, the Senator is then free to consider issues related to judicial philosophy in determining whether to support or oppose. With respect to Miers, Senators who believe she is qualified should probably oppose her if they are conservative but support her if they are moderate or liberal.

Qualification should be a threshold question; evidence of judicial or political philosophy is irrelevant to that detemination.
10.8.2005 2:27pm
jgshapiro (mail):
I think this was part of the explanation for allowing Thomas to go through despite his own questionable qualifications -- i.e., that although his views were largely unknown and he might turn out to be as conservative as Scalia, he would not be as influential on (and off) the court as a Scalia or Bork, so he was a better alternative for Democrats than knocking him down and having him replaced by someone more impressive.

The goal then becomes damaging the nominee as much as possible, but still confirming him/her, which the Democrats managed to do quite nicely with Thomas.

If they take this approach, expect a few juidiciary committee democrats to pound Miers while others sit quietly. The ones pounding her would vote against her; a handful of the others would vote for her. She would end up being confirmed by as few votes as possible, further weakening her claim to have been a good nominee.

On this theory, if you are a Democrat, you want her to get confirmed, but not by more than 60 votes, and preferably very close to 51. (The best alternative would be confirmation by 51-50 with Cheney's vote as a tie-breaker.) Since some Republicans will probably vote against her, this shouldn't be that hard to engineer.
10.8.2005 2:35pm
Thorley Winston (mail) (www):
Correct me if I'm wrong, but wasn't Senator Hatch's point that because Bruce Babbitt had some ethical clouds over his head (similar to Abe Forcias), t there was a risk of turning the nomination hearings into a similar spectacle?
10.8.2005 2:36pm

Byron York on NRO (at ) relies on George Stephanopoulos's memoir for information about Babbitt not being nominated:

Contrary to the notion that Hatch shot down Babbitt, Stephanopoulos writes that Babbitt's policies on western issues like grazing fees and mineral rights "had enraged many Senate Republicans and more than a few Democrats, who had accused him of waging a 'war on the West'...Even Babbitt's home-state Democratic senator, Dennis Deconcini, called Clinton to advise against Babbitt." Having a nominee's home-state senator — especially one of the same party — nix a candidate is a very powerful sign, which in many cases would be enough by itself to sink a nomination. (In his own memoir, My Life, Clinton glosses over the story, making no mention of Hatch or Deconcini, instead explaining that, "I hated to lose Babbitt at Interior, as did large numbers of environmentalists who called the White House to urge that I keep him there.")

So if we believe Stephanopoulos, what really sunk Babbitt was Deconcini's opposition based on Babbitt's politics regarding such things as grazing fees and mineral rights.
10.8.2005 2:51pm
Niels Jackson (mail):
Babbit had qualifications equivalent to Roberts? In what sense? They had both been to Harvard Law School, but there the similarities end. Roberts clerked for the Supreme Court, worked as a top government lawyer in several different positions, was a partner in a highly-regarded firm, was known as the best appellate advocate (bar none) in the nation, and had been a D.C. Circuit judge for two years. Babbitt had been a governor and attorney general of Arizona, and Secretary of the Interior. In other words, Roberts had been a well-regarded lawyer in numerous capacities, while Babbitt had primarily been a state politician.
10.8.2005 2:52pm
The above NRO link didn't post for whatever reason, so here it is:
10.8.2005 2:53pm
Conor Friedersdorf (mail) (www):
This seems to me a race to the bottom that does lasting damage to the country. When Americans elect presidents we consider how they will likely transform policies likely to arise. But most voters also ask themselves, How would this person react to a crisis? Or, as the phenomenon is sometimes phrased, Can we trust him to have his finger on the button?

We ask such questions in part because we can seldom predict what situations a president will face nor what his most consequential decisions will be, and in part because we recognize that a president has the most capacity to do great good or irreperable harm in emergency circumstances.

Shouldn't the Senate ask similar questions when choosing a Supreme Court nominee? Who could have imagined that the Supreme Court, during FDR's presidency, would have to navigate the constitutional crisis of FDR's attempted court packing? Certainly not Herbert Hoover, who nominated the chief justice who was among the scheme;s most strident critics.

During confirmation hearings for Reagan, Busn and Clinton nominees who imagined Bush vs. Gore occuring?

When the Supreme Court must resolve a constitutional crisis by deciding on a case that will alter the course not just of contemporary politics and policy, but of the nation itself for generations or perhaps permanently - particularly if all options presented to it are imperfect and exact great but very different costs - it is critical that we have the most qualified men and women on that court possible, and I'd argue its a good thing that we have members inclined to different ideologies.

Though no decisionmaking process is perfect, I'll bet on forceful, insightful deliberations among prudent, intelligent, convincing people any day.

A lesser quality of justices will necessarily diminish the quality of those deliberations and likely the resulting decision.

Whether or not this "Race to the bottom" benefits political parties in the short term I do not know. But it certainly hurts the country, including all the members of each political party, in the longterm in such profound ways that no responsible person could ever think that harm outweighed by any short term benefits it maight pay for.
10.8.2005 2:59pm
Veggie_Burger (mail):
It is insulting to suggest that Democrats don't want the best and brightest on the Supreme Ct. like most reasonable people. At the same time they don't want another rogue like Scalia to get on the court. The president should, of course, select the best and the brightest and not a crony as you suggest, but you have a mediocre president doing the picking. Realize that this weak pick of Miers is also reflective of the fact that the right-wing of the Republican party didn't want an intelligent, moderate like McCain to get the Republican nomination. You need to look at who occupies the White House and how and why he got there. Don't try to shift the blame on to the Democrats for an underqualified choice like Miers. The blame lies squarely on those Machiavellians who put that most unqualified man in the White House in the first place.
10.8.2005 3:00pm
A Berman (mail):
Randy, I think that you may have hit upon a constraint on the top, leading perhaps more of a race to the middle rather than the bottom.

Also, keep in mind that a Senator of one outlook will place a limit on his estimation of the intellect of anyone with a very different outlook: how smart can John Roberts really be compared to Laurence Tribe if Roberts doesn't understand how important Roe vs. Wade is, thinks Ted Kennedy.
10.8.2005 3:02pm
If I may say so, I'm not sure Democrats would choose to support a Republican nominee (or vice versa) based on that nominee's incompetence (or lesser degree of competence). The party not in power might believe that the person with the lesser degree of competence might become a "sidekick" Justice who will simply align with a more intellectually powerful Justice whom he/she ideologically agrees with as a general rule. Instead of leading to "growth" on the bench, a lesser degree of competence might lead to a "shrinkage," so to speak.
10.8.2005 3:15pm
Should this be the criterion that ultimately determines the vote of a senator?

The ideal: The President should propose the nominee he wants, and the Senate should examine that nominee for acceptibility. The practice of presenting names to the Senate is an unfortunate one that aught to be stopped. Advice should be taken by the President about what sort of justice the Senate would consider acceptable. The Senators and the President should refrain from naming names, and should instead talk more in terms of generalizations.

The reality: Many Senators have decided that they are co-presidents when it comes to the judicial nomination process. They will never surrender this power that they have subsumed.

And, if implemented by both parties, would this not create "a race for the bottom" when it comes to the judiciary?

Not so much a race to the bottom as a race to annonymity. It seems that today's justices must be difficult to pigeonhole, or they will be "Borked". A Senator can satisfy his radical constituency if he can plausibly say that he didn't vote for someone with a record on [fill in hot-button issue here].

In the Clinton days, any close associate of Clinton would have been thwarted because Clinton was the arch-enemy. Today, even though Bush is the arch-enemy, the Democrats have just a few bullets in thier holster - they are going to try to use them well. Using a filibuster against a lesser of two evils is not likely, and Miers will undoubtedly be seen as better than Luttig or McConnell. Kind of a "hear no evil, see no evil" philosophy.
10.8.2005 3:32pm
Wince and Nod (mail) (www):
McCain is a generally conservative maverick, not a moderate.

10.8.2005 3:35pm
PD Shaw (mail):
As a moderate, I suspect I am complaining against my own interests in the Miers matter, but how do I know? Its the "stealth" nature of her nomination which sets her apart from Babbit, a nationally recognized public figure.

22 Democrats voted against Roberts. As Mark Shields said, if those Democrats aren't going to vote for him, who would they vote for? I can't see it being Miers.

I also think that Bush weakened himself severely by this pick and the harder the Democrats make Bush twist, the better the 2006 and 2008 elections will look.
10.8.2005 3:49pm
Justin Kee (mail):
"Do Democrats want to support (or only tepidly oppose) a weaker conservative appointee who will be less dangerous than a highly qualified nominee with the judicial abilities to execute a serious judicial philosophy?"


"Do they put their concern for judicial philosophy ahead of their concern for competence?"

I imagine it as a balancing test, but it is probably not.

"Indeed would they not affirmatively prefer a less competent conservative on the bench to a more competent one?"

Probably yes.

"If you were an influential Democrat, how would you counsel a Democratic senator on this decision?"

Too soon to tell. I'd advise a wait and see until the hearings.

"would this not create "a race for the bottom" when it comes to the judiciary?"

It can be argued that partisian politics is becoming the single most important criterion for choosing a judge. Maybe it always has been so, maybe it is more apparent to us with the wealth of available commentary.

The histrionics coming from both parties and their respective pundits regarding the nomination of judges is perhaps a reflection of the growing awareness and importance of this branch of government among the public at large. Thus one might argue that the expansion of partisan politics into the adjudicating mechanisms of the law is a strategic move undertaken by the right since the 70s. Or not. The Supreme Court has long been used as tool by the other branches of government to accomplish policy by other means.

I suppose in order to properly address this question, someone might research the politics, discussions, Senate debates and the like behind the nominations and confirmations of those we could consider the great Justices of the Supreme Court. Determine how strong was the opposition to, or the relative weightings of pros and cons and what those pros and cons were, for a Justice such as Cardozo.
10.8.2005 4:03pm
dk35 (mail):
I have to say, I don't think it's a coincidence that Randy Barnett and other conservative men immediately look at women like Ginsburg and Miers and attack them as somehow "unqualified." I think sometimes we want to believe that sexism is not rampant among intellectuals, but the simpler explanation is often the right one.
I'm not happy about the Miers pick for the reason that she seems to be a personal friend of George W. Bush. That alone sends chills down my spine, as I think he is hands down the worst President this country has ever seen. But she passed the bar, led a sizable lawfirm, and was elected by her peers to an ABA office. So, my assumption is that she has at least the minimum qualifications for the job.

My mother went to medical school in the 50's, was told by at least one of her professors that women shouldn't practice medicine because once a month they were too irrational, and even to this day many of her male colleagues expect her to make refreshments for evening meetings. Bringing about the end of sexism will take generations, but I am optimistic that someday we'll reach that point. Unfortunately, comments from those such as Barnett show we're not there yet.
10.8.2005 4:21pm
Tom952 (mail):
It could be a perfectly rational strategy for the Dems to support and confirm Miers. It may better serve their ideology to confirm a weak, malleable conservative candidate than to see her fail (by vote or withdrawal) and be replaced by a candidate more in the mold of Thomas or Scalia, whose confirmation the Dems may not be able to stop.

Thus, the minority party may indeed find itself supporting a candidate they know is not the best qualified by academic or experience criteria.
10.8.2005 4:28pm
Thorley Winston (mail) (www):
It is insulting to suggest that Democrats don't want the best and brightest on the Supreme Ct. like most reasonable people.

Putting aside the obvious joke about "most reasonable people" and "Democrats" in the same sentence . . . if that were indeed the case, why was it necessary for Biden, Feinstein, et. al. to grill Roberts about his "feelings" and "sensitivity" to determine whether he was the "best and brightest" unless their objective was to really find out if he would be inclined to vote for their particular favored outcome?
10.8.2005 4:59pm
Jeremy (www):

Your response is silly and offensive. The opposition to Miers has absolutely nothing to do with her gender. Your refusal to even consider that Mr. Barnett and other Miers opponents, including me, make reasonable points and have valid opinions untainted by sexism shows that you are nothing but an extremist. Your statement is the worst kind of ad hominem, and it should embarrass you. I suppose you think Katherine Jean Lopez at National Review Online is a vicious misogynist.

If Miers were a man, conservatives would still be opposed. If Edith Jones, Karen Williams, or Priscilla Owen had been nominated, conservatives would support them with near unanimity. If Alberto Gonzalez had been nominated, conservatives would have had the exact same reaction.

To conservatives, it doesn't have anything to do with gender (or race or anything else); it has to do with qualifications and judicial philosophy. If Clarence Thomas was a half-black, half-hispanic, transsexual, left-handed, disabled midget from a poor, broken family, conservatives would still love him just as much. Liberals rely on identity politics, not conservatives.
10.8.2005 5:01pm
Randy Barnett (mail) (www):
DK35: I think you seriously misunderstood my post, which implied the exact opposite of the claim that Justice Ginsburg was somehow unqualified from the perspective of ability, especially as compared with Bruce Babbit (a male). Indeed, the question I raised in my post makes no sense on your reading of my characterization of Justice Ginsburg. That this was my meaning is evidenced by my previous post which explictly stated:

"To the contrary, our most recent experience with Democrat appointments to the Supreme Court were Justices Ginsburg and Breyer, who satisfy anyone's criteria of qualifications related to ability (as opposed to judicial philosophy about which supporters and opponents can reasonably differ)."
10.8.2005 5:02pm
Ciarand Denlane (mail) (www):
DK: I don't think Prof. Barnett meant to say that RBG is unqualified. I can see how you might have gotten that impressin from the post standing alone -- although I did not -- but if you look at the posting he made about half an hour before, it dispells any ambiguity on the point.
10.8.2005 5:03pm
Thorley Winston (mail) (www):
I'll accept that Babbitt's perceived (rightfully or wrongly) hostility to Western States was one of or the driving factors, I seem to recall that there was some deal with him and Indian gaming by accepting contributions from tribes which already had casinos while opposing allowing other tribes to open competing gaming concerns.

FTR: I don't necessarily disagree that mining and grazing fees are too low although my policy preference for federal lands would be to either (a) privatize them, (b) turn them over to the control/ownership of the States in which they reside, or (c) figure out a way to make them self-supporting.
10.8.2005 5:04pm
22 Democrats voted against Roberts. As Mark Shields said, if those Democrats aren't going to vote for him, who would they vote for?

Anyone who will not try and turn back the clock on privacy rights, or doesn't think this country underwent a socialist revolution in the 1930s.
10.8.2005 6:11pm
dk35 (mail):
I am certainly one to admit my errors, and with regard to Justice Ginsburg I now see that Professor Barnett acknowledged her abilities.

This does not detract, however, from my opinions regarding the furor created by male intellectuals regarding Miers' qualification. I don't think for a second that the discussion would be the same if Miers were a man. Outside of the most conservative circles, I don't think that any honest, self-aware person could state that women aren't held to a higher standard than men in U.S. professional circles. Aside from those who seriously want to argue that one needs experience on the bench to become a Supreme Court Justice (and, of course, no true originalist would argue this, as no such requirement exists in the constitution, right?) I think that the elephant in the room (sexism) needs to be recognized.
10.8.2005 7:05pm
james23 (mail):
Sorry this is not directly responsive to the posted issue, but it's something I've been wondering about in the context of Stealth Nominations generally, and this one in particular.

My question is this-- by nominating his own counsel and advocating for her confirmation on the ground that she knows his philosphy, and at least implying that she can be expected vote on the Court accordingly, has Bush set up an argument that he has waived any privilege otherwise applicable to their communications about this nomination and about issues likely to come before the Court?

10.8.2005 7:24pm
Daniel Chapman (mail):
I don't think it's within the president's authority to "waive" the rule against speaking on issues likely to come before the court.
10.8.2005 7:32pm
Toral (mail):
Re Randy's question, is it possible to distinguish between competence and expertise? Miers has as far as one knows no expertise in constitutional law and jurisprudence (the development of a 'judicial philosophy') The Democrats are entitled IMO to take the position that they accept her basic competence to inform herself gradually in these areas and are happy about her current lack of expertise in them. Because of her lack of expertise they can hope Miers will not be drawn to comprehensive approaches that challenge current orthodoxy. Because she meets basic standards of competence they can assure themselves that she will understand the briefs, form her own opinion, be able to work with her clerks to produce adequate opinions.
10.8.2005 9:19pm
james23 (mail):
This nominee, like all others, will be asked about her converstations with the President concerning the nomination. Nominees these days can be counted on to answer by saying that the converstaions were in the nature of generalities and amounted to nothing; and, that there were no discussions of specific issues with the President. Roberts said something like that.

This nominee, being the Pres's lawyer, can't give that type of answer. She'll have to assert a privilege concerning all communications with the Pres, or risk waiving, no? I don't know how, when or by whom the privilege will be asserted, but it will be asserted, and I think it safe to say that this nominee will respond to fewer questions, perhaps far fewer, than Roberts did—unless there is a waiver.

I have no idea what the caselaw says on this point, if anything, but have wondered if the act of nomination of his counsel to the Supreme Court is deemed a waiver of the attorney-client privilege to some extent? (assertion of the privilege being to some extent arguably inconsisitent with the Senate's advise and consent obligation). Or, whether a waiver is deemed to arise when, as here, the President advocates for the nominee on the basis that they have worked together closely for years and the nominee knows the President's philosphy on judicial matters. That sort of argument on behalf of his counsel/nominee does arguably put their prior conversations very much in issue.
did this come up with Fortas? other thoughts? thanks
10.8.2005 11:11pm
Taeyoung J. (mail):
"Indeed would they not affirmatively prefer a less competent conservative on the bench to a more competent one? If you were an influential Democrat, how would you counsel a Democratic senator on this decision?"

From their perspective, though, is what's important *competence* per se, or actually just persuasiveness? I.e. are they more concerned about the clarity and coherence of the opinions they'll be producing, or about the extent to which the nominee will be able to persuade the other justices (e.g. Kennedy) to follow their view? After all, you can have the glittering intellectual credentials in the world (like Bork) and still be unlikely to have a substantial effect on the voting patterns of your brethren (like Scalia).

So I think the fear for Democrats -- at least those whose primary interest is in preserving Roe v. Wade for all ages unto the breaking of world -- is not that the nominee will be super-competent, but that the nominee will be super-persuasive. This persuasiveness, however, is not necessarily connected directly to the traditional measures of legal prestige or competence (e.g. Harvard, Law Review, supreme court clerkship, etc.)

If there's any good indicator of this ability, it's likely to be engagement in the public debate, and a proven record on persuasion. In the case of Chief Justice Roberts, of course, we have an even better indicator of his probable effect on his new peers -- his success arguing before them in the past -- but most candidates are unlikely to have his extensive experience arguing before this particular court. For those other candidates, then, I think Democrats' (or, in other circumstances, Republicans') fear would be someone a) with a long history of engagement in the public debate and b) demonstrable success/influence in that public debate.

Maybe this kind of persuasiveness is just a species of competence, but I don't think it tracks perfectly what people have been using as their index of competence, at least with respect to Miers. At the same time, however, despite Beldar's able defense of her record, we don't have much indication of how persuasive she would be either, because we have no direct experience of her efforts (from active participation in the public debate), and no incidental evidence of it either, from her arguing before the Court.

Her Supreme Court peers are also probably more like law professors and legal academics than the trial judges her record shows her persuading, so her not participating in public debate (even directed towards the academy) isn't exactly disqualifying, but it's a missing data point that the confirmation process is not going to fill in for us. As far as I can tell, we won't have a clue what she thinks the law actually is -- what her "rule of recognition" is, so to speak -- until she actually sits on the bench. And that is a great vexation.
10.9.2005 10:37am
brianlarry (mail):
Weaker nominees, those without the mental capacity to change themselves or persuade others, serve the purposes of both the Presidential party and the opposition. Depending on your political leanings relative to the nominee, either flaw can be seen as an advantage.

This is the fault of the legislative branch. Being unwilling or unable to grapple with hard issues like abortion, they've put the Supreme Court in the position of filling the legislative void. Their vote for or against a supreme court justice is a way of removing themselves from a formal vote on a divisive issue. They legislate through their Supreme Court vote. This has in turned weakened the office of the President, who must navigate these treacherous waters when he chooses a nominee.

Bush is not our finest example of Executive leadership but it is the legislative branch that has damaged both the Executive and Judicial branches of our government. By refusing to exercise the power (or assume the responsibilities) of their branch of government they put too much focus on the Supreme Court, and damage the balance of power between the three branches of government. The Supreme Court becomes more powerful (while less capable) and this raises the stakes of every Presidential election.

If a constitutional amendment that addressed abortion rights were passed (in either sides favor) don't you think this would improve the quality of Supreme Court Nominees?

So long as the legislatie branch refuses to do it's job, unremarkable dark horses will be favored as nominees to the Supreme Court.
10.9.2005 6:10pm
Randy Barnett (mail) (www):
The discussion of gender was off the topic of the original post and also did not conform to the rules of the comment page described below. For these reasons, it has been expunged.
10.9.2005 11:52pm
Observer (mail):
My question is this: In what sense is Bruce Babitt the equal of John Roberts?
10.10.2005 10:11am
Jim Fair (mail):
I think the question whether Bush has created an opening to inquiry about his previous communications with Miers is very interesting and I hope Randy Barnett will comment on it.
10.10.2005 11:07am
Gordon (mail):
Bruice Babbitt on the Court meant there would have been three Arizonans on at the same time.

Also, if Bruce Babbitt were still on the Court Bush would have been virtually compelled to pick a female nominee to replace O'Connor.
10.10.2005 12:30pm