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Sunday, September 11, 2005

Law prof Tushnet tells Dem senators to reject every SCOTUS nominee who doesn't share their "vision of the Constitution"

In the fall of 1977 when I was a first-year student at Texas Law School, among my teachers was Mark V. Tushnet, who was then visiting from, if I recall correctly, Wisconsin Law School. The subject he was teaching my section — federal civil procedure — had none of the sex or romance of, say, torts and contracts. He was fairly new to his calling then, and obviously still quite nervous as a lecturer. And to say that his and my politics diverged is a considerable understatement. I was among the more skeptical in our class about, for example, the proposition that the class action certification provisions of Federal Rule of Civil Procedure 23 were being interpreted by the federal courts with the purpose and effect of protecting entrenched interests in their continued oppression of the proletariat.\*/ But at the end of the day I had indeed learned a fair amount about the pros and cons, the ins and outs, of Rule 23 — which was the point. Politics aside, Prof. Tushnet was obviously very bright and dedicated, and quite personable, and I liked him as a teacher and ultimately did well in his class. During the following two years, I was involved in editing a book review that he wrote for the Texas Law Review, and I came to like and respect him, his thinking, and his writing even more.

Prof. Tushnet's career has prospered, and he's now at Georgetown Law Center. I doubt that anyone has ever accused him of over-concision, however; he and I have this in common. And I was not surprised when I learned that he's among the law professors who blogs at Balkinization. (But even as a blogger, he's a more disciplined writer than I am. He'd never mix metaphors as badly as I'm about to, for instance.)

Just now, I happened upon Prof. Tushnet's post straight-forwardly entitled "Why Democratic Senators Should Vote 'No' on Roberts." I enjoyed reading it — I give Prof. Tushnet generally high marks for intellectual honesty — but it's a whole lot of words just to say, in the end, that Democratic senators should vote against John G. Roberts, Jr.'s nomination to be Chief Justice because of his "vision of the Constitution."

Prof. Tushnet clearly believes that Judge Roberts has a different "vision of the Constitution" than most of the Democratic senators do, and I'm pretty sure he's right about that. Indeed, I not only agree, I'm actually very, very thankful for that. I think that when Judge Roberts is confirmed, he'll continue to treat the Constitution as a constitution. This prospect makes me happy, and it's one big reason I voted for Dubya. By contrast, I think that the Democratic Party and most of its senators have a "vision of the Constitution" that's sort of like the holodecks on the later-model Starship Enterprises. And wow — they can dial up versions of constitutional reality that don't have much in common with the one I live in. That prospect scares me, and it makes me unhappy, and it's one big reason why I voted against John Kerry. How about you, America? (America, via electoral votes, nodded its agreement with me on constitutional holodeckism last November, as I recall. Well, maybe not in those words.)

Still, it's kind of refreshing to read a liberal Democrat just come out and say, more or less: Vote against any and every nominee who doesn't think the Constitution is made of Silly Putty, just 'cause you're Democrats, and us liberal Democrats like our Constitution to be Silly Putty. Or at least to have a high coefficient of silliputtiness.

(Griswold v. Connecticut was, of course, the most famous constitutional silliputtiness case; I didn't learn about that until con law in the spring 1978 semester, though. Latextual rather than textual analysis of the Constitution, so to speak; one size stretches to fit all, and then we cover the result with a precedential fig leaf, nyuk-nyuk. Oh yeah, the constitutional silliputtiness coefficient approached 1.0 in that case, that's what my engineering friends would say.)

I'm also bemused to read a half-sentence like this one dropped in among otherwise mostly straight-forward and articulate argument by an incredibly smart and well-educated guy (boldface mine):

The Constitution makes the Senate a co-equal partner in the judicial selection process, and Senators are entitled to canvass exactly the same range of considerations the President did, including the nominee's vision of the Constitution....

Now, the second part of that statement is probably something most folks can agree on (if "entitled" means "can get away with"). But the first part of that statement is something you can only believe if you've already dialed up the holodeck to display something other than our Constitution. That's because our Constitution doesn't say that the Senate and the President are co-equal partners in picking federal judges. It instead gives each of them very distinct and different responsibilities. And if you actually look right there at Article II — that's the one about the President, there being a whole 'nuther article each for the legislative and judicial branches — it says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" our federal judges. This isn't advanced constitutional law; this is junior high school civics, and I'm awfully bemused at how even a super-smart law professor can write a sentence like that without catching fire or being struck by lightning or even raising an eyebrow among his colleagues.

When you fire up the holodeck or start kneading the Silly Putty, you can construct arguments that would almost get you there. They're not even very complicated arguments, they basically come down to: "Well, the Senate can be a bunch of snots who withhold their consent forever, even if they turn blue and even if the government collapses, 'cause the President can't make them consent. So since they have a blocking position, he has to get their consent, and that sorta makes them co-equal partners." Well, yeah. I do remember a variation on this argument from junior high civics — all that checks and balances stuff. But as I recall, Mom didn't buy that co-equal partner stuff when I tried using the "God made me a partner with you when he gave me the power to hold my breath 'til I turn blue"-argument. But she was no constitutional scholar. So riddle me this, Prof. Tushnet: If they were really co-equal partners, then couldn't the Senate could nominate and Dubya consent? And couldn't Dubya enact laws and Congress veto 'em? Golly, I don't think that's how the Constitution reads even when you twirl the holodeck dials all the way over so far that "Larry Tribe" pops up in the "Chief Justice" window!

(Now, the managing-editor personalities among you will note that I didn't use quote marks around the terms "holodeck" and "Silly Putty" in this post when I was paraphrasing Prof. Tushnet's arguments. That was on purpose, because Prof. Tushnet didn't use the terms "Silly Putty" or "holodeck" in what he wrote. He'd probably huff and puff about how his Constitution actually does have the same words as mine, and it's just that his has penumbras, and that it lives and breathes and stuff. But I think if he gets to say "co-equal partners" with a straight face, then I get to say "Silly Putty" and "holodeck." And then we both oughta wink at each other, and then, if I had the chance, I'd definitely buy him a beer to laugh over about it all.)


\*/In response to a comment below, I've added this footnote (at about 11:30am on Sun Sep 11) to expressly disclaim any intention of name-calling! (On double-checking, I also edited the original post to remove a reference to an article of his that I thought I'd helped edit for the TLR; there was only the book review, which I added a link to.) If the commenter inferred some sort of name-calling from my reference to "the proletariat" above, I'd note that Prof. Tushnet has certainly written a lot about Marxism and the law — for example, a 1978 article entitled "A Marxist Analysis of American Law," published in a journal called Marxist Perspectives. I don't claim to know if he himself was, or is now, a Marxist. His present law school indeed describes Prof. Tushnet's "approach [a]s decidedly deconstructive rather than Marxist," but in an accompanying interview he himself explains (emphasis mine) that the

[c]ritical legal studies [approach], at least in the form it took in the 1970s, is generally labeled a deconstructive critique of rights which challenges Warren Court liberalism from the left. Within it, there is an argument that, whatever analysis you might make of any court decision, in observing the system you see a tilt in favor of those in power.

As I thought was otherwise clear from the context, based on my personal experience with him twenty-five years or so ago, I think he's a perfectly grand fellow. He wasn't trying to convert me or subvert the country or sell our nuclear secrets to the Commies. But I doubt that he'd quibble over being tagged with a "hard-left" label then or now, at least as to his personal politics. And I absolutely meant what I said about being wiling to buy him a beer.

[At 12:15pm:] Oh gosh, now I'm updating my footnotes. I swear, sometimes I think I could indeed have been wonky enough to become a law prof myself. But anyway, in flipping through the Georgetown Law Center website, I came upon lovely pictures of the motto carved on the front of its library: "Law is but the means — Justice is the end." That in turn reminded me of the motto carved on the Main Building at UT-Austin: "Ye shall know the Truth and the Truth shall make you free." Which in turn reminded me of the gonzo students known as the "Arts and Sausages Party" who successfully took over and (for a time) abolished the student government at UT-Austin in the late 1970s. Their campaign platform, which Prof. Tushnet doubtless would have appreciated, included a plank calling for the sandblasting of that motto and its replacement with "Money Talks."

Posted by Beldar at 06:18 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Law prof Tushnet tells Dem senators to reject every SCOTUS nominee who doesn't share their "vision of the Constitution" and sent a trackback ping are listed here:


(1) Joe made the following comment | Sep 11, 2005 8:36:32 AM | Permalink

Ah yes, that rank Democrat, John Harlan II.

This name calling because you disagree with the judicial views of the ("liberal" ... chuckle, if only more than a select few were) Dems would be a bit more acceptable if Republicans had such a consistent and principled philsophy. Since they, being human and all, don't, I find your spin amusing as well.

As to the equal partner stuff, well maybe too cute, but again you make it sound like the Senate can't even vote against nominees. They can you know, as people back in the 1790s and so on understood. And, they can do for ideological reasons. Again, as people did in part since then.

I'll match Griswold with this talk about "state dignity" that requires us to read into the 11A words it doesn't say any day.

(2) Steven Jens made the following comment | Sep 11, 2005 10:10:32 AM | Permalink

Joe: I've seen a lot of complaints that Scalia and Thomas agree with each other too often. I see far less argument that they disagree too often. It strikes me as a more compelling argument; certainly, when the law is perfectly clear, a judge shouldn't take pride in finding a new and interesting way of misconstruing it by writing (apparently with a straight face) of penumbras of emanations. Some lack of clarity is inevitable, but the problem should not be deliberately intensified.

As for the "state dignity" doctrine, I'm unfamiliar with that. Could someone provide me a pointer?

(3) Beldar made the following comment | Sep 11, 2005 11:01:48 AM | Permalink

"Name calling"? Joe, I'm puzzled.

(4) jvp made the following comment | Sep 11, 2005 2:59:26 PM | Permalink

The "co-partner" talk is reminiscent of the "Co-President" idea floated by Gerald Ford in 1980. To say it out loud underscores the fact that it is not so, but instead, it is trying to move the line of power in favor of the one seeking to exercise previously unacknowledged powers. As Beldar demonstrates, the co-partner concept is not literally so. It clearly is not a two-way street. It is also an attempt to legitimize opposition on purely political grounds. Of course, this reasoning applies to all judicial appointments and it will be interesting to see if it becomes the argument against all appointments by a Republican president. I do not believe that it will haunt the Democrats later on when the president is a Democrat. They are counting on, and rightly so in my opinion, that the Republicans will not drop their principled opposition to this viewpoint and will instead vote overwhelmingly to confirm the next Democrat (like Ginsburg, 96-3). In this sense, it is like the rachet that only tightens in one direction. It also allows them to insist upon conservative respect for the "super-precedents" while insisting that all other precedents are subject to an evolving understanding as part of a "living Constitutioin."

(5) Robert Schwartz made the following comment | Sep 11, 2005 8:24:22 PM | Permalink

I suppose Tushnet gets some points for honesty. After all, we can now be sure that when they went after Thomas, they really didn't care about sexual harassment. It certainly fits with the old maoist slogan "better red than expert."

To me it just shows how lame liberalism has become.

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