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Friday, November 12, 2004

Carts, horses, and Senate Judiciary Committee chairmen

I have a due, but not undue, appreciation of lawyers and judges — having been one of the former for twenty-four years, and having spent my first of those twenty-four years working as a law clerk to one of the latter and the rest of my career arguing before others.  Among my core principles — not just as a lawyer, but as a citizen-student of, and participant in, our democratic republic — is that judges' duties do not include "taking up the slack" whenever they perceive legislators to have been insufficiently progressive or enlightened. Give me instead the judge who has the wisdom and courage to say, "That may be a wise and good idea, counsel, but it's not my job to implement it. You're in the wrong forum, and you need to seek relief elsewhere if you're to get it."

Abortion is an issue that I've not blogged about very much. I'm in that odd group of people in the middle who are highly critical of Roe v. Wade and its progeny as a matter of constitutional law, but who — despite being sympathetic and respectful of those on either end of the spectrum on this issue — are not absolutely against all abortions as a matter of social and ethical policy. The reason I haven't blogged much about the subject in detail, and don't intend to, is that I don't feel that I have much to add to the debate beyond some very subjective, and somewhat muddled, personal views that I'm frankly not inclined to spread on the internet.

But while I respect the intensity of the passion of folks on both sides of the political debate about abortion, I'm frustrated when they use the issue — and try to enlist the passions of those who agree with them — on broader issues with more sweeping ramifications. I mean no disrespect to the single-issue voters on either side of the abortion issue. But I respectfully and firmly submit that how we, as a nation, go about selecting and confirming judges to hold lifetime appointments on our federal courts is by definition a broader issue with more sweeping ramifications, because abortion cases are only a tiny fraction of the cases — by volume or by significance — that federal courts must decide every day, every year.

During the year that I clerked on the Fifth Circuit, my judge handled (and I was privileged to assist her on) hundreds of cases — many involving life or death issues, others involving tens and hundreds of millions of dollars, and others involving important cutting-edge precedents in every conceivable area of the law. What we were doing, just one step removed from the Supreme Court and subject only to its (or the en banc Fifth Circuit's) rare review, was extremely important — to us, to the litigants before us, to the litigants and citizens who'd be affected by the precedents we set, and hence to the nation. But we didn't have a single abortion case that year in our chambers.

So as I've previously written (at less length, although there are some fabulous comments on that post arguing both sides), I'm disappointed that the debate over whether Pennsylvania Senator Arlen Specter should assume the chairmanship of the Senate Judiciary Committee has focused so much on his own views about abortion and on how judges who are before that committee might approach the legal issues on abortion. And thus, I'm frankly disappointed to read that Texas Senator and Judiciary Committee member John Cornyn — whose own service as a state-court trial and supreme court judge, and as a state attorney-general, give him ample cause to know better — may be falling into that rhetorical and political quagmire:

A conservative member of the Senate Judiciary Committee said he could support Sen. Arlen Specter (R-Pa.) as chairman of the committee if Specter issued a public statement saying he would not try to block a Supreme Court nominee who opposes abortion rights.

Sen. John Cornyn (R-Tex.) said Specter assured him in a conversation Tuesday he would push for swift up-or-down votes on nominees without regard to their positions on abortion. Cornyn indicated he was satisfied by Specter's comments but wanted them expressed in an official statement.

Asked if he thought Specter would get the chairmanship, Cornyn said, "Today, yes, I do."

Cornyn also said Specter is seeking a meeting with Republicans on the judiciary panel next week to resolve doubts prompted by his comments last week suggesting that the Senate was unlikely to confirm nominees who would overturn the 1973 Supreme Court decision legalizing abortion nationwide. Conservatives have flooded the Senate with protests, urging Republicans to reject Specter as chairman.

Now, it's possible that Sen. Cornyn sees the big picture, and that the WaPo reporter or editors — as would be typical of members of the press — picked the abortion issue as their lede and main focus even though Sen. Cornyn may have intended not to emphasize it. But the chairmanship of the Senate Judiciary Committee is important for many, many reasons having nothing whatsoever to do with abortion.

My own reasons for opposing Sen. Specter for that important position have nothing to do with abortion. They have everything to do with the fact that based on his statements and his record, I simply don't trust the man to ably and consistently and enthusiastically and loyally support the President in his commitment to appoint federal judges who believe that their duties do not include "taking up the slack" whenever they perceive legislators to be insufficiently progressive or enlightened. I don't believe the chairmanship is Sen. Specter's entitlement. The Senate's rules no longer require that he get it based on seniority, and the residual custom and presumption can and should be overcome in appropriate circumstances, which I believe exist here. I don't believe he's earned it as a reward; to the contrary, his conspicuous lethargy in supporting the President's reelection, after the President had supported him in a hotly contested primary, argues that he's entitled to no such reward. And I think that the risks of opposing him for the position, as argued by my esteemed friend Hugh Hewitt and others, don't justify the risks he poses if he gets the position.

To ensure democratic accountability in our republic, we need judges who understand what their role is — and what it isn't. As important as the abortion debate may be — as a matter of constitutional law, public policy, morality, ethics, and religion — it's not the only thing, or the most important thing, at stake here. Focus on the horse and where it's headed; the cart and its various contents, both precious and common, will follow, and can be adjusted appropriately as needed afterwards.

Posted by Beldar at 05:36 PM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Carts, horses, and Senate Judiciary Committee chairmen and sent a trackback ping are listed here:

» In the matter of Arlen Specter from Media Lies

Tracked on Nov 12, 2004 10:42:08 PM


(1) Jinn made the following comment | Nov 12, 2004 9:18:13 PM | Permalink

Thank you! I've been saying this for two weeks in my discussions with my law school classmates. I also think the fallout from not selecting Specter for the chair could be mitigated considerably by explaining it very clearly in the terms you speak of, and care on the part of Sen. Frist to not get stuck (either on his own, or through media prompting) in the one-note abortion tune.

(2) Ron Deaton made the following comment | Nov 12, 2004 10:00:04 PM | Permalink

Finally a breath of fresh air on this. Abortion, even though I oppose it, is less important than putting judges who intepret the law versus judges who write law. Specter is the wrong chairman, in the wrong place, at the wrong time.

(3) LazyMF made the following comment | Nov 12, 2004 10:29:10 PM | Permalink

I agree with your general theme regarding the importance of judges not "picking up the slack" and legislating from the bench.

However, many of the esteemed jurists nominated or serving on the Supreme Court and other high courts(Bork, Scalia, etc.) impose their own legislative agendas based on faulty historical beliefs regarding the intent of the framers (strict constructionalists)or of jurisprudential schools (Chicago/law and economics).

Those judges are just as guilty of imposing personal agendas and should be vetted the same way "liberal" judges would be.

Give me middle-of-the-road legal scholars without agendas and I think it will go a long way in keeping the discourse civil in this country.

(4) Beldar made the following comment | Nov 12, 2004 10:40:07 PM | Permalink

Lazy, I'm looking for "judicial conservatives" — not "conservative jurists." I'd agree with you that there are examples of conservative judicial activists (although I'm not sure I'd include Scalia among their number, at least not consistently); as a practical matter, though, they're harder to find.

If we argue this at the next poker game, do we fall within our host's $1-per-political-comment forfeiture rule?

(5) antimedia made the following comment | Nov 12, 2004 10:46:27 PM | Permalink

I agree with both you and Andrew McCarthy, although I trace judicial activism back to Griswold v. Connecticut (see my trackback above.) I think this selection is very important, and I'm afraid that Specter will be chosen anyway. We can only hope that some day politicians will return to the day when judges judge and we the people decide.

(6) F. Rottles made the following comment | Nov 13, 2004 12:22:42 AM | Permalink

I agree that the job description of a Supreme court Justice begins with application of judicial conservativism to matters of constitutional law.

However, I do think that the abortion issue is much broader than is often depicted by those who would apply the pro-Roe litmus test which is proxy for a lack of judicial restraint.

Other litmus tests based on a social conservative inclination are likewise out of place in the selection and confirmation of Justices. I don't want our Justices marching at the head of anyone's ideological parade.

(7) austin mls made the following comment | Nov 13, 2004 4:40:43 AM | Permalink

As important as judges are, there's also the PATRIOT Act and tort reform. We know Specter will redo the Judiciary Cmte staff and fire the conservatives. So the people that will be drafting this legislation will be shaky at best.

(8) David Blue made the following comment | Nov 13, 2004 10:25:40 AM | Permalink

Even if you are focused on pro-life issues, agitating solely for judges who will vote to overrule Roe vs. Wade is not the right solution.

If the specific outcome of Roe is removed, but the attitude that let judges invent an implied right of privacy so extensive that it includes a constitutional right to abort persists, you can never be secure against some new horror. What next, a constitutional right to involuntary assisted suicide for retarded infants and old folk with Alzheimer's?

The solution is judges who agree that they have no authority to invent anything like this.

It has to be about judicial conservatism in general. It can't be about nullifying just one unwelcome ruling.

(9) rob made the following comment | Nov 13, 2004 11:27:26 AM | Permalink

Abortion symbolizes for me maxim inculcated in first year law students "hard cases make bad law": faced with what seemed to the justices a close call, they fashioned what seemed to Harry Blackmun a reasonable compromise -- the 'three trimesters' approach under which abortion was essentially unchecked in the first trimester, somewhat regulated during the second trimester, and potentially subject to significant limitation in the third trimester. Of course, lacking any sound constitutional grounds for this result, they then invented a rather lame constitutional theory about prenumbras and the right of privacy, itself a law professor's invention in a completely different context.

I've always been one of those odd people who thought Roe v Wade was very bad law, on the same grounds you seem to Beldar, that judges ought not fill in the interstices in the law which what seems to be a good idea at the time. You put it exceptionally well, I think: judges who can't find real constitutional grounds for relief should refer the litigants to the political process.

I also take the currently rather unpopular view that, as a policy matter, Roe got it about right (subject to qualifications about earlier viability than was thougth to be the case when the case was argued): given the deep divisions in society on the issue, it seems reasonable to have a sliding rather than absolute scale of the acceptabilty of abortion. That won't satisfy anyone on either extreme, but it is probably where most people come out.

The problem is that we don't really have regime outlined in Roe: now almost all abortions are legal throughout pregnancy, as a result of a series of decisions pushing the envelope over the past 30 years. As read Roe itself, banning partial birth abortions would have passed muster with that court, as I suspect would many restrictions on abortions after the first trimester and a ban on federal funding. It's a pity, in my view, that having won a reasonable compromise in Roe, the proponents of abortion couldn't accept their win and move on to other things instead of continuing to push the envelope.

Which is, of course, one of the great problems with modern liberalism: having succeeded in chaning the law (whether through legislation or the courts), liberals just move on to the next demand, as if there's a perpetual war to be waged. Thus the paradox that views that were liberal in the 18th century and deemed 'conservative' today.

(10) Navy Vet made the following comment | Nov 13, 2004 2:10:34 PM | Permalink

I think the WaPo read into this what they wanted to and therefore focused on abortion. I am a conservative who contacted Senator Cornyn's office and said I do not trust Senator Specter to work in a supportive way with the President to appoint judges. I know several others who did the same.

I am utterly disgusted with the deliberate blocking of judges named by the President over the past 4 years. I do NOT want anyone in a position of control who is the least bit suspect of participating in that blocking effort either in the past or into the future. Heaven help us if the President serves 8 years without being able to appoint judges!

I agree that the most important thing is that judges not legislate from the bench. Frankly, I think those who have done so should be removed and replaced with one who will do the job properly. In my opinion, a judge who legislates from the bench is no less wrong that the CEOs of late who have been guilty of ethical misconduct. A judgeship is a public trust and it violates that trust when a judge creates law rather than interprets it.

(11) Geek, Esq. made the following comment | Nov 13, 2004 4:48:53 PM | Permalink

I must confess that I almost completely reject the dichotomy between "interpreting the law" and "making the law."

Statutes and constitutions mean what the Courts say they mean. The idea that there is some "real" meaning to a statute or article of the COnstitution is a myth. Of course when the language is obvious and explicit, there is rarely any disagreement. It is when the language is ambiguous, or non-existent, that problems arise. And when the language itself isn't clear, the operative meaning is due as much to the judges as it is to the law as enacted. Originalism is just as "activist" as anything that Thurgood Marshall ever spun.

I would also note that legislatures *do* leave it up to the judges sometimes--just as parties negotiating complex financial transactions do. Due to the nature of the legislative process, language is often left vague where greater specificity would fracture the cooperation necessary to enact the statute. Just as parties in financial transactions will sometimes punt a point of contention while hoping that a controversy never arises.

I would also invite champions of the "apply the law, don't make it" to tell us which theory of constitutional interpretation they use to defend the decision in Brown v. Board of Education. Points are deducted if you use originalism, which supported the Plessy decision instead.

(12) LazyMF made the following comment | Nov 13, 2004 7:24:41 PM | Permalink

Beldar, I'll see you at the poker game next week. I'll bring my Leonard Levy books and a roll of Sacajawea dollars.

Navy Vet, the blocking of Clinton nominees by Orin Hatch and friends was more frequent than what has happened over the last 4 years.

(13) SDN made the following comment | Nov 13, 2004 7:56:00 PM | Permalink

"I would also invite champions of the "apply the law, don't make it" to tell us which theory of constitutional interpretation they use to defend the decision in Brown v. Board of Education. Points are deducted if you use originalism, which supported the Plessy decision instead."

Simple: it's called the 13th, 14th, and 15th Amendments. Amendments, being ratified by a supermajority of qualified voters, become part of the "original" language of the Constitution. The original intent of the Founders was that all fundamentals of law should be decided by either votes of the people OR their elected representatives.

Note that I did use the word "qualified." The South was not allowed to vote on them (AFAIK) because they were paying the natural price for losing a war.

(14) Larry Hughes made the following comment | Nov 13, 2004 8:38:36 PM | Permalink

Phil Crane was senior to Bill Thomas, but he didn't get the chairmanship at Ways and Means...
Specter is too old, too nasty, too slow, and makes a poor advertisment for Republican control of anything. They should dump him, and also pack the committee with at least two more staunch Republicans, just to make damn sure all Bush's nominees get to the floor. If Specter and Chafee want to change parties, it wouldn't break my heart. Observe that with our 55-45 margin, the GOP can lose Chafee AND Specter AND Snowe AND Collins AND either McCain or Hagel and STILL prevail, with the help of Cheney. Besides, they might pick off Prior, or Nelson(NE), or Baccus, or Landrieu, or even Johnson. We have the Democrats on the run, but will never get to a 60 seat majority. Frist should demand the "nuclear option" of rules change as well as the Judiciary precautions indicated. After all, as you say, there is other vital business before the JC, such as renewal of the Patriot Act, which Specter should not be allowed to sabotage.

(15) Thomas J. Jackson made the following comment | Nov 14, 2004 4:29:19 AM | Permalink

I thought your comments were excellent. Judges have no right to usurp the legislature. We are now faced with judges declaring terrorists to have the same rights as POWs and criminals! The Geneva convention is quite clear about the treatment of illegal combatants.

The USA is also faced with Supreme Court justices who seem to believe that foreign laws and precidents have some bearing on the US constitution. The Congress has the right to decide what issues the courts have jurisdiction over. The Congress should make matters or religion, homosexuality, affirmative action, gun control off limits to the courts and leave them exclusively in the hands of the approriate jurisdictions.

I note Geek makes comments that are less than coherent. Making law by fiat is neither what the founders wished nor intended. Finding rights that no one ever discovered during the first 200 years of this nation's history demonstrates the mental gymnastics that the court engages in.

Specter is beneath contempt. He will block tort reform. Specter has extreme positions not only on abortion but affirmative action. Once he is appointed to the chairmanship does anyone trust him to honor his word? As far as the more alarmist views that Specter or other RINO's might jump ship then so be it. Better to rid the party of people willing to blackmail the president than to do the honorable thing. If their ideals dictate they support the agenda of the Democrat party they should leave. The nation will be better off for it.

(16) LazyMF made the following comment | Nov 14, 2004 12:22:57 PM | Permalink

Thomas, Geek's comments are coherent. You are using hyperbole simply because you disagree with them.

I hope Specter blocks tort reform. With a few exceptions, it is a matter that should be left to the states. Bush and company are pushing it at the federal level because it makes good press for the populace that hates lawyers.

What "extreme" position of affirmative action does Specter hold? He is for it? He doesn't call it "affirmative access?"

Congress handling matters of religion? You must be kidding.

(17) Geek, Esq. made the following comment | Nov 14, 2004 2:24:18 PM | Permalink


The very same Congress that authored the 14th Amendment also voted to approve racially-segregated schools in the Disctrict of Columbia.


(18) Rob Robertson made the following comment | Nov 14, 2004 5:53:51 PM | Permalink

I come down on the side of geek. And go a bit further. Activism is in the eyes of the proponent. And while I have never written on this issue before, and con law was about 3000 years ago for me, let me throw out a few ideas.

First, I have read Beldar wax eloquently about the jury system. I too am amazed how well it works, no matter what pool you have to work with. There are unique exceptions, a la OJ. But overall, it is amazing how a bunch of 90 IQ people networked together in a closed room come out with 180IQ decisions more often than not. As opposed to arbitration, where one so-called learned guy usually just cops out and cuts the baby in two pieces.

So too with panels of judges. No matter what one does to stack a court, I havent seen a lot of evidence that the overall direction can be pre-ordained. Burger was a surprise. So was that guy who still lives with his mother, whose name escapes me.

No matter what Bush does, he is not going to get a panel that will follow instructions or litmus tests that he cannot set down anyway. And I ask you, would you really want a court that was completely predictable? Lifetime tenured guys/gals who can do whatever they want and are in lockstep with one another? Better to keep an internal strife dynamic alive to keep them all honest. Absolute power corrupting and all of that.

Finally, all of us give the legislative branch a lot of credit they dont deserve in terms of moving in new directions and addressing new issues not envisaged previously. Sometimes a little activism is a good thing...if only to poke the beast and force it to do its legislative and executive job. So checks and balances are both positive and negative/yin and yang if you will. The judicial branch is equal among the three and has the right, and I submit the obligation, to induce the other two to move toward a homeostasis of reality and law even when they do not want to.

In sum, I guess what my conclusion is, by this stream of conscious attempt to figure out where I stand (sorry - thats what you get from reading comments)...the question is whether the Supremes are an equal branch of goverment with the other two, or just an umpire with a penalty flag. I say that they should be an equal, and this means a reasonable degree of activism. Now, how you ensure that "reasonableness" so that they dont go overboard....that is the question. And maybe that is why this nominating process where empty promises are made not to go activist is a good thing. So I come full circle.

Great blog and great commentaries here. My regards to all of you from the RGV.

(19) Joshua Chamberlain made the following comment | Nov 15, 2004 1:35:54 PM | Permalink

Amen, Beldar. I'm frankly more concerned about federal judges who seem determined to provide terrorists captured overseas with the same procedural protections as American criminal defendants.

(20) Bruce J. Blue made the following comment | Nov 15, 2004 4:55:03 PM | Permalink

As I told Senator Frist, Senator Cornyn and Senator Hutchinson in email to each of them, Specter cannot be trusted to handle the responsibility of the chairmanship of the Judiciary Committee.

In spite of his rhetoric to the contrary, his record is one of duplicity and deception.

The Senate is too gutless to take an open up or down vote on a guy like Specter. They'd rather have a 'secret ballot' so they don't have to defend their vote.

I'm telling Cornyn and Hutchison that if Specter is granted the chairmanship of that committee, I'm going to assume that they voted for him. In that case, they'll never get another vote for re-election from me (or a great number of Texans).

If you don't have the guts to stand up for something, you don't belong in the United States Senate.

(21) Greg D made the following comment | Nov 19, 2004 3:26:13 AM | Permalink


The Republicans didn't block Clinton's appointees with fillibusters (the minority's attack on the majority), they blocked them using the powers of the majority. Would it have been better for them to just vote the bozos down? Yes.

But there's a vast difference between a mjority inflicting its will on others, and a minority doing it. The former is called democracy.


While I seem to agree with you on both Roe and on abortion, I disagree with your point.

No lawyer or judge who favors Roe is qualifed to be on the Court. It's an utterly illegitimate decision (for example: if it gave us / "recoginized" a right to control our own bodies, how can the government even think of trying to stop us from committing suicide?).

Knowing that any acceptable nominee will be anti Roe (regardless of what they think about abortion), the promise Cornyn wants from Spectre seems like the we need from him.

(22) Greg D made the following comment | Nov 19, 2004 3:30:21 AM | Permalink

To all those who favor "judicial legislating", a question:

What is the functional, practical difference between saying "The Constitution is a living document", and saying "The Constitution means whatever 5 members of the Supreme Court think they can get away with saying it means"?

And what is the difference between saying that, and saying the US Supreme Court is an oligarchy that rules the US according to the whims and desires of its members, limited only (as with all oligarchys) by what its members think they can get away with?

My answer? None. And none.

I believe in democracy and the rule of law. If you don't, that gives us very little to talk about.

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