Webcast from Pepperdine Available
Now available on the Pepperdine University Law School website is this webcast of a February 1, 2007 constitutional conversation on the Malibu campus with ABC news Supreme Court correspondent Jan Crawford Greenburg and four constitutional scholars regarding the events depicted in Greenburg’s best-selling new book Supreme Conflict. In addition to Greenburg, the event features Jesse Choper of Boalt; Douglas Kmiec and Ken Starr of Pepperdine and Jon Varat of UCLA.
After the jump, Professor Kmiec has a detailed report of the discussion.
Greenburg led off the event recounting the privilege of having been given significant access to the justices themselves and her extensive use of the justices’ papers in the Library of Congress and the Reagan Library. Part of Jan’s thesis is that conservatives are disappointed in the Rehnquist Court. I followed up on that with my own perspective from my days in the office of legal counsel that those who see the Reagan and Bush efforts to remake the court as a disappointment because of the occasional unpredictability of Justices Kennedy, O’Connor, or Souter, understate the significance of the judicial selection effort as not being devoted to outcome, but a philosophy of judicial restraint or humility which in a given context might leave in place either a politically liberal or conservative result. In my view, Greenburg’s major contribution is having written a book about the Court that allows the Justices and events to speak for themselves, without a political filter of left/right or author bias. Especially compelling for me is Greenburg’s thoughtful exposition of how the justices interact with each other and respond to public and scholarly commentary.
The book did remind me of one disappointment: the failure to appoint Ken Starr to the high bench at the time of his service as solicitor general; that, as I see it, was a self-inflicted wound from intra-conservative tribal sparring. Boalt law professor, and former Dean, Jesse Choper followed with a reflection of Sandra Day O’Connor’s significant contribution as a role model. Choper nicely highlights how criticism of O’Connor from the right, understates her significant conservative rulings on presidential power, campaign finance and school choice. In making a comparison between O’Connor and Harriet Miers, Choper notes that O’Connor’s constitutional experience was not significantly greater or different than Miers at the time of nomination, and the two women had more in common than not. The difference, he notes, is 20 years time and the nature of the confirmation proceeding and the fact that O’Connor had the benefit, and the burden, of being a pioneer. Choper’s point leads later in the program to a robust discussion of the value of diversity for the high bench and the confirmation process which may or may not allow it.
Dean Starr commented on the failed nomination of Robert Bork, indicating that Bork had a built-in following from the time of the Nixon administration on-ward. As for his own fate, Starr graciously declined to speculate, other than that he believed those who found him “unacceptable,” did so as “people of goodwill.” Again, in one of the more disturbing chronicles in her book, Greenburg recounts how Starr had been at the top of White House lists for the seat vacated by the late William Brennan. The seat went to David Souter. Former UCLA Dean Jon Varat found Greenburg’s book extremely accessible and well-written. He concurred with Professor Kmiec that a good deal of what defeated or
misdirected conservative thinking had to do with intra-conservative disagreement among different strains of conservatism anchored in, respectively, judicial modesty, libertarianism, respect for precedent, and those who simply want conservative political outcomes. Speculating on the impact of Chief Justice Roberts and Justice Alito, Varat anticipates more openness to religious reference on the establishment clause and perhaps a rethinking of the free exercise jurisprudence as well. Varat is puzzled by conservative defense of the unitary executive or strong presidential authority, and wonders if it is inconsistent with the principle of limited government.
The event concludes with interesting questions and speculations among the panelists and audience, including Greenburg’s prediction that President Bush is not likely to
have another opportunity to fill a vacancy on the Supreme Court.
And that seems a significant difference. Particularly clear now, in light of Greenburg’s book, it seems clear that Bush was no less determined to appoint the third woman to the Supreme Court than Reagan was to appoint the first. Setting aside the merits of selecting nominees based on gender, the nominees Reagan and Bush chose must be assessed in relation to the pool of talent which was available to pick from. While it’s true that Sandra Day O’Connor did not have the resume one might want from a Supreme Court nominee, how many female conservative judges and academics who did have those qualifications were there to pick from in 1981? By contrast, in late 2005, it seems to me that there was a readily available pool of potential female nominees who were vastly more qualified than was Miers, and indeed, were qualified for the post even absent the dreary diversity criterion.
I don’t think that “diversity” is a valid criterion in selecting nominees to the Supreme Court of the United States, but even assuming one buys into it as such, it seems to me that the Miers choice cannot be defended on those terms when there are so many female potential candidates who were (and are) qualified, although I should concede that Greenburg’s point about many of the leading contenders being disqualified for various reasons may undercut this analysis to some extent.
Comment by Simon Dodd — February 5, 2007 @ 2:44 pm