WASHINGTON — Democrats and Republicans in the Senate have begun fighting a proxy war using judicial nominees in an effort to stake out ground in the shadow of a looming Supreme Court fight.
Amy Klobuchar is among those on the left who have taken to the Senate floor to decry what she calls stalling tactics by those on the right, who in turn are holding up an appellate nominee as an example of exactly the kind of nominee who should be stalled at all costs.
“As a member of the Judiciary Committee, I have seen what’s going on here,” Klobuchar said. “We get these nominations through our committee and then they just vanish, into thin air.”
“Obviously they’ll put the Supreme Court nominees on a faster track,” said Al Franken, also a Judiciary Committee member, in an interview. “Right now, the judicial nominees that Obama has put forward, once they’re reported out of committee, are waiting twice as long as the Bush nominees did.”
Actually, it’s much longer than that. Judiciary Chairman Patrick Leahy said Obama’s nominees are waiting an average of 119 days between clearing committee and the Senate’s confirmation vote, while Bush appointees averaged less than a week.
Denny Chin, a district judge in New York who was nominated by Obama to serve on an appellate bench, had his nomination forwarded from the Judiciary Committee on a unanimous vote back in December. He still hasn’t come up for a vote on the Senate floor.
It’s cases like Chin’s that Democrats hope to highlight in the upcoming months, threatening to spend nights, weekends and holidays in a judicial confirmapalooza if they have to, trying to make the case that Republicans just want to filibuster everybody in an attempt to blunt that weapon before a Supreme Court fight.
Klobuchar said she saw from experience as a prosecutor the impact of not having enough judges, adding that the successful prosecution of everything from simple gun cases to high-profile white-collar crime requires judges with time to hear the cases.
“If we don’t have the judges to handle those cases, these criminals are going to be out there committing crimes. That’s what this is all about,” she said.
The Republicans have their poster child as well in Obama nominee Goodwin Liu, a University of California-Berkeley law professor nominated to the 9th Circuit Court of Appeals, against whom they’re outlining a case based on both politics and procedure that could be duplicated against a future Supreme Court nominee.
Republicans preparing their arguments
Senators seemed keenly aware of the stakes at a Friday hearing on Liu’s nomination.
Jeff Sessions of Alabama, the Judiciary ranking member, said the hearing “takes on even greater significance in light of the impending Supreme Court vacancy,” while Delaware Democrat Ted Kaufman jokingly welcomed Liu “to the Judiciary Committee and the Supreme Court nomination process.”
Republicans took aim at Liu’s lack of judicial experience — he’s never been a judge — with critiques that could easily be used against half of President Obama’s reported Supreme Court shortlist, who have never been judges either.
They blasted his writings, saying some show support of liberal ideals, like affirmative action, gay marriage and the idea that government has a duty to provide certain social services, including access to health care, as a means of reparations.
Sessions said on “Meet the Press” last week that Republicans would give him or her a “fair hearing” where the eventual nominee will “have a chance to explain any criticisms that are raised.”
“But if a nominee is one that is so activist like Goodwin Liu that’s just been nominated — who’s written that, that the Constitution requires welfare and health care to individuals — if it’s somebody like that, clearly outside the mainstream, then I think every power should be utilized to protect the Constitution. We’ll not confirm somebody like that.”
While the political argument is aimed at forming a box around the word “mainstream,” which you’ll hear a lot going forward, the procedure argument is aimed at slowing things down.
Republicans have used his youth (Liu is 39) and the fact that he’s up for a lifetime appointment to bolster their case to move slowly. They’ve highlighted procedural missteps (Liu omitted a few supporting documents when returning his committee questionnaire) and said more time is needed to parse his speeches and papers, since he doesn’t have a judicial record to examine.
All that led Session to tell reporters late last week that he feels like Democrats are “rushing this nomination.”
Liu was nominated in late February, and his first informational committee hearing was Friday. Nearly a two-month lag — about the timeline Democrats hope to use in approving a Supreme Court nominee.
Liberals just don’t care that much about having a liberal court. I don’t care that much whether kids are allowed to pray in schools, or that suspects in criminal investigations receive their Miranda warnings in triplicate. I don’t think the court should be overturning major legislation, but most judges or lawyers considered for appointment to the Court would do that. The Republicans learned from bitter experience that it wasn’t just enough to choose conservatives, they had to establish a process over the years of developing and carefully vetting potential nominees, combining conservative and sometimes downright weird legal views, with a lack of a paper trail defining those views. We as liberals, don’t need carefully tended, legally eccentric, hot house flowers, like Alito and Roberts, to do what we need done on the Supreme Court.
Public opinion tied to conservative commentators represent a major misunderstanding of the role of the supreme court. It is not the job of judges to (borrow Mr. Roberts phrase) “call balls and strikes.” Or to be a umpire of sorts. It is the job of these individuals to interpret the constitution where there are gaps. The conservative wing of the court would like people to believe they are “dispassionate” or “anti-activism.” I would point out in response that “Citizen’s United” overturned nearly a century of precedent.
It was “liberal” justices that created a fundamental right to privacy now so coveted by conservatives. It was liberal justices that fought to incorporate the “Bill of rights” against the states via the 14th amendment. It was liberal justices that fought for a broad interpretation of the 1st amendment. Nearly every great judicial decision since 1960 has been penned by “liberal justices.” Yet, people continue to support the aptly misunderstood texualism that Scalia and Thomas hustle.
Since very few people actually read Scalia’s opinions outside the legal community I am not surprised the larger public is misinformed. Thomas and Scalia are not “texualist” they are when it suits their purpose to block what they view as “expansive” readings of the constitution.
Interpretation is not synonymous with “judicial activism.” Often problems come up that cannot be solved by a mechanical application of law. That is when Judges must draw on other factors to make their decisions. They must balance the interest of the state/government with or against the rights of individuals.
I liked Justice Roberts’ comparison to umpires but I drew a conclusion from it contrary to his. The fact is there are pitcher’s umps, hitter’s umps, and umps who generally lack a clue. The notion that there is some relevant Platonic Form of a ball or strike, independent of an umpire’s judgment of it is simply not the case.
As for gaps in the law, this is another metaphor which can complicate the issue. What I would say, if there are gaps in law, it isn’t for a Supreme Court to fill them. Such gaps involve political questions to be decided by the political branches of government, the legislative and the judiciary. Those branches, unlike the judiciary, are permitted to create rather than construe law.
A current example is the unallotment case before the Minnesota Supreme Court. In my view, what the Supreme Courts should do is to decide in favor of the governor, or in favor of the legislature. There is basis in statutory and constitutional law for either ruling. What the court should not do, again in my view, is try to impose a compromise ruling, “filling a gap”, because there is no basis in law for such a ruling, and no standards for judges to create one.
One other possibility, by the way, is make a narrow ruling on the case before it. That’s a possibility, but I wouldn’t care for it myself. I think it’s the job of judges to make decisions as opposed to avoiding them.
“It was “liberal” justices that created a fundamental right to privacy now so coveted by conservatives.”
That’s something of an after the fact determination. There are both liberal and conservative arguments for a right to privacy. Currently, many conservatives are arguing that the census, for example, invades some sort of nebulous right that could be characterized.
Let’s not forget that it was Nixon appointee, Harry Blackmun, who wrote the opinion in Roe v. Wade. Was he ever a liberal?
Mr. Schulze makes some interesting points, but I have to disagree in part about the role of Supreme Court justices. Although Chief Justice Roberts was soft-peddling the court’s role in constitutional issues, its function in most cases is similar to that of all appellate judges: to apply the statutes and/or prior decisions on point to the cases which come before it and to rule on constitutional issues only when they are unavoidable. We can find judicial activism (result oriented decisions) throughout the history of the court and coming from all political perspectives.
There was nothing unavoidable about holding the campaign law unconstitutional. There was ample precedent for a contrary ruling. It was an activist ruling from a highly political judge. In my view, there isn’t anything intrinsically wrong with that. Brown v. Board of Education overturned a precedent too.
The campaign finance law was a complicated piece of legislation drafted by the branch of government the constitution clearly intended to perform such tasks. It was imperfect, but there is no constitutional requirement. In the aftermath of the Supreme Court’s action, we see the downside of judicial activism; a jagged hole has been created in one of the most important areas of law, soon to be filled by lobbyist and high priced attorneys, none of whom serve the public interest.
Statutory interpretation really depends on the degree of ‘separation of powers’. We Americans tend to have a stricter interpretation of that in comparison to the Common law system.
Having said that, as the Critical Legal Studies Movement emerged in the US, Duncan Kennedy and others do have a point to make – that ‘law is politics’. This means that legal decisions are a form of political decision. In that case, is there really such thing as justice as fairness?
What is the reason for the delay in bringing judicial appointments to the floor? Doesn’t the majority leadership decide when to have a vote, or do they first want to determine how many senators from the opposite side can be counted on to vote with the Dems?
“Statutory interpretation really depends on the degree of ‘separation of powers’. We Americans tend to have a stricter interpretation of that in comparison to the Common law system.”
I am far from an expert on the way the Brits do these things, but my understanding is that there judiciary is fairly remote from the political process. In theory, I believe, the House of Lords is the final authority on the law, their supreme court, if you will, but I don’t know how that works.
In America we have the common law too, except for Louisiana. There was a time when there were a lot of gaps, requiring judges to make law, to fill in the gaps. But as legislatures have enacted statutes, I am thinking here particularly of commercial law, which replaced the law of contracts created by judges, common law seems mostly a thing of the past.
Laws are enacted by a political process, but I wouldn’t equate the two. Law is a product not only of politics, but of economics, and morality, of class, and a lot of other things I can’t think of right now. I am pretty confident in saying that politics doesn’t enter into the vast majority of decisions judges make in this country.
I wouldn’t equate fairness with justice either. A party can be treated fairly in the judicial process, he can have access to a good attorney who represents his case well, all the rules can be followed, but in the nature of things, the decision ultimately reached might still be unjust. In our court system, fairness is a much more attainable goal, and far less mysterious or unknowable than justice.