Academic Round-Up
I would like to wish all of our readers a happy new year, and specially thank those of you who have contributed with questions or comments on our “ask the author” and academic roundup series. I would also like to say how much I appreciate those of you who have sent along your most recent articles as I have really enjoyed reading and sharing them with our readers. Finally, I would like to thank my co-bloggers for allowing me to participate in this blog, which I have enjoyed tremendously. Now on to the articles:
I have posted a new piece on SSRN entitled “Understanding the New Politics of Judicial Appointments,” which will appear in a spring issue of the Texas Law Review. This piece, which is part of a two-part series I am writing on judicial appointments, is a product of what I consider to be a hole in the literature on appointments. Most articles on the subject are quick to make normative recommendations on how to improve the judicial appointments process (i.e., eliminate confirmation hearings, force nominees to answer the questions posed to them, etc.), but almost nobody has attempted to figure out why the process has changed so much over the past couple of decades. With the exception of some work by Michael Gerhardt, that is true with respect to both political scientists and law professors. In fact, just this weekend on C-Span’s America and the Courts, NPR’s Nina Totenberg asserted that the process, especially with respect to Supreme Court appointments, has clearly changed, but she could not really identify the reasons behind the transformation. In this piece, I attempt to identify three categories of factors that have contributed to an increasingly politicized appointment process, including what I call judicial, external and structural factors. I hope to do a short series of posts about my findings following the conclusion of the January sitting, but in the meantime you can download the paper here.
For those closely watching the D.C. guns case, Nelson Lund (George Mason University School of Law) has posted “D.C.’s Handgun Ban and the Constitutional Right to Arms: One Hard Question” on SSRN, see here. As an initial matter, Professor Lund thinks that it “is more likely than not” that the Court will affirm the D.C. Circuit opinion, though he does not think that such as result is “inevitable.” In addition, he addresses the one question that he thinks was otherwise “not adequately refuted” in Judge Silberman’s opinion: whether the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. For a variety of reasons, including the “grammatical structure of the provision” and “the public records of the founding period,” Professor Lund concludes that the Second Amendment protects the right of citizens generally to keep arms for self-defense purposes. Although there are a lot of Second Amendment articles out there, Professor Lund does a nice job of writing a short and readable article with a view towards addressing a question that will surely be important in the disposition of the Heller case.
Finally, the Stanford Law Review has posted the final version of Rick Hasen’s (Loyola Law School-Los Angeles) article entitled “The Untimely Death of Bush v. Gore,” see here. Of particular interest, Part III of the article addresses Judge Posner’s opinion in Crawford v. Marion County Election Board, which the Court will hear on January 9, 2008. Aside from having a very helpful election law blog, see here, Rick is one of the most knowledgeable election law scholars out there.
I would recommend the research of Sean Theriault, a professor of government at the University of Texas, for more information about polarization and lart politics.
Comment by Patrick Luff — December 31, 2007 @ 6:07 pm
“…but almost nobody has attempted to figure out why the process has changed so much over the past couple of decades.”
What’s to figure out? People with no sense of decency are now in greater positions of influence on the left side of the aisle. That is why nominations made by Republican presidents are more contentious, and involve more sliming, than in the past or when nominations are made by Democratic presidents.
The confirmation process for Justices Ginsburg and Breyer was less acrimonious overall than for the nominees of Republican presidents before and since. To the best of my knowledge, nothing like the Estrada trash incident (pp. 14-15 of the essay) has occurred related to a Democratic nominee.
Comment by Kent Scheidegger — January 2, 2008 @ 12:11 am
The confirmation process for Ginsburg and Breyer was less contentious because they were more centrist and less ideological than the Republicans’ nominees. Clinton was unwilling to expend political capital on Supreme Court nominees, while for the Republicans even a losing ideological battle gained political capital. It is the Republicans whose agenda it has been to change the courts through a politicized appointment process, how could they not expect a politicized confirmation process. As for sinverguenzas, the Republican side is full of them. Congress has always had its streetfighters and its statesmen, only in today’s world of negative advertising do the DeLays rise to the top.
Comment by Roger Friedman — January 2, 2008 @ 6:58 am
Ginsburg was “more centrist and less ideological?” She worked for the ACLU!
Comment by James N. Markels — January 2, 2008 @ 9:15 am
“The confirmation process for Ginsburg and Breyer was less contentious because they were more centrist and less ideological than the Republicans’ nominees.”
From what point do measure the “center” Roger? Obviously not the logical point of the American median voter. Do you measure “right” and “left” relative to yourself? Only on some idiosyncratic scale could one say that Ginsburg is closer to the center than Alito.
President Bush did indeed pass on the more ideological possibilities when he chose Roberts and Alito, very much the same as President Clinton did in choosing Ginsburg and Breyer. In those terms, the nominations were mirror images, yet the confirmation battles were very different. Anyone seeking to explain how confirmation has changed needs to address that asymmetry.
Comment by Kent Scheidegger — January 2, 2008 @ 10:16 am
Hi Kent,
I very much appreciate your comment, but I avoided your line of inquiry because I think that it probably begs the question. Both sides have been pointing fingers at the other claiming that the real blame lies with the reprehensible actions of the opposition party. And I completely agree with you that the confirmation battles of Justices Roberts and Alito were nastier than those of Justices Ginsburg and Breyer.
But I view that as more a sign of the times and as a symptom of the increasing politicization of the appointments process. I have little doubt, for instance, that the next appointee by a Democratic President (assuming that it is an ideological appointee) will face as tough of a confirmation battle as either Roberts and Alito did. The question, at least in my mind, is why has this happened?
Comment by David Stras — January 2, 2008 @ 5:19 pm
David, thanks for the reply. I really don’t think that your “sign of the times” argument holds water, though. The Ginsburg and Breyer nominations came chronologically between the Thomas fiasco and the Roberts and Alito nominations. In asking why some of these battles are nasty, we need to ask why some are less nasty.
To be sure, there are decent people in both parties, and there are people with no sense of decency in both parties. My observation, for what it is worth, is that the latter seem to be more influential within the party on the Democratic side, with the likes of Daily Kos and PFAW being treated as if they are worthy of respect.
Comment by Kent Scheidegger — January 3, 2008 @ 12:31 pm
Kent,
I would say that Larry Tribe, Herman Schwartz or Lani Guinier would have been more ideological choices. Ginsburg worked for a project funded by the ACLU but never had any position of leadership in the organization.
People who knew Ginsburg in those days describe a meticulous, professorial person without a broad liberal agenda but an indefatigable devotion to the equality of women before the law. I have previously classed her appointment with that of Justice Marshall as being symbolic of their being the foremost legal advocates of equality. I think if you look at her work in other areas, you will see that she has not advocated liberal positions. For example, she has gone along with procedural decisions that restrict the rights of prisoner litigants and she accepts the death penalty. Her 96-3 confirmation shows that the vast majority of Republicans were unwilling to make even a symbolic protest.
Nor is Alito a centrist, see for example his overturned abortion decision. His criminal law decisions are entirely prosecution-oriented. His gushing letter about his opportunity to advance Reaganoid legal policies speaks for itself. Shall I discuss the Federalist Society and Richard Mellon Scaife?
Comment by Roger Friedman — January 3, 2008 @ 12:32 pm
Yes, Roger, Justice Ginsburg does occasionally vote for the prosecution, just as Justice Alito occasionally votes for the defense. His last death penalty decision on the Court of Appeals, Bronshtein v. Horn, 404 F.3d 700 (2005), was in favor of the petitioner on a procedural point, reversing a district court decision in favor of the state. (The D.C. was correct, IMHO.) This is consistent with my point that they are roughly mirror images on an ideological scale.
Yes, there were more ideological choices that both President Clinton and President Bush could have made, which is exactly what I said in comment 5, above.
“Shall I discuss the Federalist Society….” If you like, but I don’t see why. Alito’s connection with the FedSoc is considerably less than Ginsburg’s with the ACLU, and the ACLU is further from the political center by a wide margin.
Comment by Kent Scheidegger — January 3, 2008 @ 12:48 pm
Kent –
I have no desire to see this blog descend into flame wars. Can we agree that responses to David’s posts will be from the Median Justice’s points of view?
Comment by Roger Friedman — January 4, 2008 @ 7:57 am
I am very much against “flame wars,” and have therefore written nothing in this thread (or any other thread) that could remotely be described as a “flame.”
I’m not sure what you mean by “the Median Justice’s points of view” and so, no, I do not agree to that.
My point earlier in the thread was that if one insists on placing people on a simplistic right-left scale, the origin must be the median American voter, i.e., the person who had a hard time choosing between Bush and Gore in 2000. Whether a person is “centrist” or “extreme” must be measured in terms of absolute value of distance from that origin.
Comment by Kent Scheidegger — January 4, 2008 @ 11:54 am
You both make excellent points, but things are seldom as transparent as they seem. I don’t know if Roger was going down this road or not, but there is some excellent game-theoretic literature out there (which has changed my own thinking on judicial appointments) that suggests that the median justice is all that really counts in how Supreme Court appointees are evaluated by the Senate (of course the final vote tally also takes into account the median senator and filibuster pivot). Thus, the lack of commotion regarding Breyer’s appointment can be explained by the fact that he was replacing Blackmun and it was extremely unlikely that any Clinton appointee would move the Court median to the right. In contrast, because Justice O’Connor was the median Justice on most issues, the appointment of Justice Alito had and will continue to have a huge impact on the Court median. Likewise, Roberts had an easier time in the Senate because he was replacing Chief Justice Rehnquist, and any appointment (except a liberal one) would not have impacted the Court median.
There may be two other issues at play in the lack of Republican opposition to Breyer (and perhaps even Ginsburg). First, I think many conservatives at that point still believed that Souter would be a conservative, if only in the mold of someone like Justice Kennedy. Thus, many conservatives may have held a false security that the Court was moving in their direction anyway. In a similar vein, the prior two appointments to the Court had arguably moved the Court to the right with the replacements of Thurgood Marshall with Clarence Thomas and William Brennan with David Souter. Thus, perhaps conservatives did not believe, at least with respect to Ginsburg, that she would move the Court median at all.
Second, I believe that Orrin Hatch’s close consultation with President Clinton on Justices Ginsburg and Breyer played an enormous role in the acceptability of both to Republican senators. According to Jan Crawford Greenburg, Hatch essentially told Clinton that both Breyer and Ginsburg would be acceptable choices. I have learned through my own empirical research that senatorial consultation is extremely important to the confirmation of judges at all levels of the judiciary. Incidentally, I think that a vote on Harriet Miers might have been very similar to the lopsided votes on Breyer and Ginsburg because Harry Reid had already deemed Miers an acceptable choice once she was nominated.
And to Kent I say that there is always the possibility that Republicans are just more collegial on judicial appointments. Indeed, I would like to say that as a conservative. But I just don’t think that that is the case, especially since the confirmation rates for Bill Clinton’s circuit court nominees were actually lower than for George W. Bush’s, at least to this point in his administration.
Comment by David Stras — January 5, 2008 @ 10:26 am