Democrats, Scalia and Roberts

Another blast from the past, this from the New York Times, Sept. 18, 1986:

While the debate on Justice Rehnquist took five days, the debate, if it could be called that, on Judge Scalia consumed barely five minutes.

The 50-year-old Court of Appeals judge was praised as thoughtful and fair by several senators, including Joseph R. Biden Jr. of Delaware and Edward M. Kennedy of Massachusetts, who ... led the opposition to Justice Rehnquist. Senator Kennedy said that although Judge Scalia was a conservative, ''he is clearly in the mainstream.''

Justice Antonin Scalia was confirmed by a 98-0 vote in the Senate. What has changed in the last 20 years?

A few possibilities:

a) Biden and Kennedy have come to the conclusion over the last 19 years that they were wrong, wrong, wrong about Scalia, and it's scared the bejeezus out of them. They are considerably more wary of accepting a nominee's middle-of-the-road answers in confirmation hearings as an indication of his behavior once on the court.

b) The liberals were so concerned with the prospect of Rehnquist as chief that they didn't bother to devote any time or energy to opposing Scalia. (When he was up for chief justice, Rehnquist received more negative votes than there had been in any previous Supreme Court confirmation hearing. The record before 1986? Rehnquist again, with 26 votes opposing his confirmation as an associate justice many years before. The closest vote to date was for Clarence Thomas, who squeaked by with just 52 senators voting in his favor.)

c) Everything's just more partisan now. Each side feels a strong inclination to pander to its base, and there's a desire on the left to spite Bush, who sparks the sort of visceral reaction among some liberals that Clinton did among some conservatives. Rick Shenkman says the partisanship has been particularly bad since the 1980s, because by then pretty much all the liberals had fled the Republican party and just about all the conservatives had left the Democratic party. The growing ideological conformity on each side has led to increasingly bitter battles, he contends.

d) Blame the 17th Amendment. One of many blogs called Below the Beltway highlights the talk in some circles of repealing the 17th amendment. That's the one that cancelled out election of senators by state legislatures in favor of direct election by popular vote. Could that solve -- or at least mitigate -- the partisan divide that plagues the Senate? (And would Tom Coburn still be a senator?)

e) The conflicts go back decades, pre-dating Bork (as this academic study finds.)

Any other interesting theories on how the confirmation process has become what it is today? Predictions on how the vote will break down?

By Emily Messner |  September 20, 2005; 5:07 AM ET  | Category:  Beltway Perspectives
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What happened? Senators found out that Scalia was an idealogue. Senators have learned that nominees are comfortable with lying (Thomas claiming ignorance about Roe v. Wade). Comments from left and right are that Roberts is also lying about Roe v. Wade. This scares liberals, right-wing Christians seem comfortable with the idea.

As a nominee for CHIEF Justice, Roberts is less distinguished and less experienced than Rehnquist, who graduated first in his class from Stanford Law School (O'Connor was 3rd in the same class). Roberts was merely magna cum laude from Harvard Law School (as was Scalia). Rehnquist served as Associate Justice for over 14 years before being nominated for CHIEF Justice. Conservative vs liberal aside, Roberts just doesn't measure up.

Posted by: Ellen Wedum | September 20, 2005 10:56 AM

The main problem in my view is that liberalism has become a distinct minority in this country. Free markets and international trade are generally accepted as the wisest economic policy, and the collapse of the Soviet Union exposed Reagan's "evil empire" remark as quite accurate. Liberalism cannot win a national election. Reagan and W. both ran and won as unabashed conservatives. No Democrat tries to run as an unabashed liberal.

As a result, the Supreme Court has become the only national branch of government from which liberal policies might be imposed. The spectacle of senators demanding that a judicial appointee promise to strike down the laws they themselves pass is testament to the fact that the Left has lost confidence that it will ever pass its agenda through democratic institutions. The Court is its only hope.

Scalia is not an idealogue. He simply interprets the Constitution narrowly, thereby giving wide berth to the state and federal legislatures. Whether one likes such a judge depends on whether one trusts the legislative branch and particularly whether one believes that like-minded people will run the legislative branch. The Left's modern activist approach to constitutional law is an admission that they lost the battle for the public.

Posted by: Joe | September 20, 2005 11:16 AM

Justice Scalia offers one of the most interesting hypotheses as to how the confirmation hearings became so contentious. Of course, increased partisanship, desire to spite Bush, and concern that ambiguous answers may pave the way for the Justice to be far more extreme than many believe all play a role. According to Justice Scalia, and his point appears to have some merit, the increased heat that fills the rooms at these hearings is largely due to interest groups finally grasping the idea of a living Constitution.

To a certain extent, I tend to examine the Constitution as a living document but doing so can be dangerous. The problem, as Scalia points out (in his interview with Tim Russert among other places), is that when the Constitution is supposedly alive, people begin to believe that if they could only get the right justice confirmed, they could further their agenda. The idea that appointing a justice to further an agenda is precisely what the Constitution intends to prevent by making the court system independent of the political branches. From both sides today we see an increased interest in getting a judge who will further an agenda instead of extending impartial rule of law.

Posted by: Ross C. Lovely | September 20, 2005 11:47 AM

The notion that the Roberts confirmation question is about the death of liberalism ,as Joe posits, is nonsense.
The U.S. Constitution, and particularly the Bill of Rights, is a liberal document--the Constitution grants rights, powers, and responsibilities; it generally does not restrict rights. For most of the post-Civil Rights Act/Voting Rights Act period (post-1964), the Republicans generally have sought to restrict constitutionally-conferred rights and powers to serve their ideological agenda. The Democrats generally have sought to push back Republican attempts to restrict these rights. I seeking to thwart those who wish to restrict the rights of the American people, Democrats have been, and will continue to be, on the right side of history, and as the polls show, on the right side of public opinion.
Katherine (Member of the Bar, United States
Supreme Court)

Posted by: Katherine | September 20, 2005 12:09 PM

Katherine must know what she's talking about. She's a member of the bar and is admitted to the Supreme Court. Thankfully, most lawyers, law professors, and law students are liberals. Thus, by utilizing the judicial branch, they can circumvent the democratic efforts of the people in order to further policies that they deem are "on the right side of history." Where would we be without lawyers like Katherine and judges who share her philosophy who are kind enough to use their view of the constitution and their influence in the judicial branch to curtail the democratic foolishness of the majority of Americans?

Posted by: Michael | September 20, 2005 12:32 PM

Saying that the U.S. Constitution does not actually include rights X, Y, or Z is not the same thing as "attempt[ing] to restrict these rights." It just means they are not constitutional rights in the first place. To think otherwise truly makes you an idealogue. Construing text liberally does not mean including everything under the sun. Words have meanings, which include boundaries on what those words can mean. Otherwise we would not have to write them down in the first place. Calling yourself a "progressive" does not necessarily mean your ideas would lead to progress. If the polls are so correct about public opinion being on your side, you should have no problem passing constitutional amendments.

Posted by: John | September 20, 2005 12:44 PM

A word to your second poster, Joe. Al Gore ran as an unabashed liberal and won the 2000 election. The idea that Scalia is a non-idealogical justice is preposterous. Conservative presidents have been packing the court with judicial activists since Rehnquist, a complete idealogue who had no business sitting on the court. Please explain how it was that Scalia, Thomas, Rehnquist, and O'Connor did not legislate from the bench when they created a completely nonsensical "one-time only" legal justification to install W as an ersatz president?

Posted by: Brian | September 20, 2005 12:57 PM

Here's why the Republicans were wrong about Justice Souter- they liked his conservatism and respect for precedent, but seemed to forget that Supreme Court decisions, particularly with regard to individual rights, have been generally liberal since the 1960's. Thus, adherence to precedent means sticking to the generally progressive trend of the court and not overturning Roe v. Wade or any of the privacy decisions in that family of cases. Scalia and Thomas are the true ideologues- they want to uproot pretty much the entirety of post-war precedent, returning the court to what it was in the beginning of the 20th century, when decisions like LOCHNER threatened to make state and the federal government irrelevant. If Roberts says he has true respect for precedent, then, and means it, we might have another Souter in the court. If he's lying, and he's more of a Scalia/Thomas- well- what can we do?

Posted by: Katey | September 20, 2005 12:58 PM

The limitation on rights because of an inclusion of a Bill of Rights in the Constitution was a considerable concern to James Madison, who, when he proposed the Bill of Rights, sought to guard against such a position by the inclusion of the Ninth Amendment. He explained his position when he proposed the Bill of Rights to the House on June 8, 1789 as follows:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
John's claim that "[i]t just means they are not constitution rights in the first place" (that some rights are more sacred or more protected because they have been enumerated) is exactly the reasoning that Madison sought to avoid.

Posted by: BA | September 20, 2005 01:10 PM

The limitation on rights because of an inclusion of a Bill of Rights in the Constitution was a considerable concern to James Madison, who, when he proposed the Bill of Rights, sought to guard against such a position by the inclusion of the Ninth Amendment. He explained his position when he proposed the Bill of Rights to the House on June 8, 1789 as follows:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
John's claim that "[i]t just means they are not constitutional rights in the first place" (that some rights are more sacred or more protected because they have been enumerated) is exactly the reasoning that Madison sought to avoid.

Posted by: BA | September 20, 2005 01:10 PM

A note to those who haven't had a legal education in some form or another: Anybody who cites Lochner as having been a poor decision but cites Roe as having been a good decision is someone you can stop listening to. That person either doesn't understand the simple notion of why courts are not policy-making bodies or has no shame whatsoever. I'm not sure which is worse.

Posted by: Jim | September 20, 2005 01:12 PM

BA, I read Madison too. He was not talking about abortion, sodomy, and gay marriage.

Posted by: Jim | September 20, 2005 01:19 PM

The Constitution says that the Senate shall "advise and consent" to certain presidential appointments. If members of one party have not advised, how can members of that party be called on to consent?

It also seems to me that prior to 1981, administrations appointed Federal judges who were within sight of center. Naturally Republican presidents tended to appoint more conservative judges, while Democrats tended to appoint more liberal judges (even though Eisenhower appointed Earl Warren as chief justice). There were no "litmus tests". All this ended with the Reagan administration. Reagan attempted, with some success, to pack the Federal courts with ideologues. Bush I dod not, but Bush II is attempting to do that again.

Posted by: Mike | September 20, 2005 01:29 PM

The basis in "right to privacy" upon which Roe was based is of questionable legal value. Lochner was a TERRIBLE decision, however. People who accuse the courts of being "policy-making bodies" should understand this- that is exactly what the court was doing in that case.
http://en.wikipedia.org/wiki/Lochner_v._New_York
Check out Holmes' dissent, which explains WHY THE MAJORITY IN THAT CASE WERE BEING EXACTLY WHAT YOU HATE- activist judges.
If Lochner had not been effectively overturned, this country would be a far more sinister, far less successful place.
I know I'm digressing but I can't let "Jim" get away with making a statement like that unchallenged.

Posted by: Katey | September 20, 2005 01:29 PM

Yes Jim, because safely ending a pregnancy wasn't scientifically possible and homosexuality was viewed as a choice. He also didn't consider things such as keeping American citizens in internment camps or whether people should be able to decide if they are kept on life-sustaining machines either.

Posted by: BA | September 20, 2005 01:39 PM

In response to Mike's question:

The Constitution says that the Senate shall "advise and consent" to certain presidential appointments. If members of one party have not advised, how can members of that party be called on to consent?

The Constitution does not contemplate a two-party or any-party system. So, the Senate, or some percentage, perhaps a majority, thereof, as a body needs to advise and consent, not a party within the Senate. The Constitution does not stipulate that the whole Senate must vote nor what percentage of the Senate being in favour constitutes consent. Perhaps letters of approval from 50% +1 of the Senate to the President would be sufficient.

Additionally, let us remember some of the points of the above article. The role of the Senate is to represent the interests of the 50 sovereign states that make up the United States of America, whether elected by popular vote or by each State's respective legislature. The citizens are represented by the House of Representatives.

Posted by: Robert | September 20, 2005 01:46 PM

Lochner was a terrible, policy-making decision, and for the same reason, Roe was also a terrible, policy-making decision. It's that simple.

Posted by: Jim | September 20, 2005 02:43 PM

It's inevitable that conservatives will take every opportunity to claim that they have won a final historic victory for as long as they remain in the driver's seat, but on its face the argument made by "Joe" shows the absurdity of this position. To say that "liberalism" has been eclipsed by a universal embrace of the "free market" is to ignore the fact that free markets are one of the cornerstones of liberalism. Unlike, for example, the current regime in China, it has always been a fundamental tenet of U.S. politics -- whichever way the wind happens to be blowing at the time -- that the success of this society is predicated on allowing people the freedom to pursue life, liberty and happiness, whether in the markets, the synagogues, the press, or people's bedrooms. Thus, to say that "liberalism" has been beaten out by free markets makes no sense. For the same reason, as has already been pointed out, the U.S. legal system is founded on "liberal" principles (however much conservatives may hate that word) and it is a central job requirement for all interpreters of U.S. law to be philosophically "liberal" -- with the possible exception of Justice Scalia, who somehow managed to finesse that requirement.

Posted by: FS | September 20, 2005 02:57 PM

I think the absurdity of Joe's position is more clearly shown by the positions of SCOTUS appointees on the question of Roe. No liberal appointee has been afraid to state very clearly that they support Roe, while not a single conservative, Roberts included, would even come close to coming out against it (Bush himself wouldn't even pormise to appoint pro-life judges, instead falling back to codewords dealing with legislating from the bench). If you believe Roe was wrongly decided, why is it problematic to let the Senate know? Surely it's not about partiality, as Thomas and Scalia have both voiced anti-Roe positions in rulings such as Casey and have since failed to recuse themselves on every other abortion case that has come before the court. Let's face it, anyone with a legal degree should have a position on Roe v. Wade (obviously everyone else in the world seems to), so why, if their position is politically superior, are they so terrified to come out and say so?

Posted by: Michael | September 20, 2005 04:18 PM

For those arguing about "liberalism," perhaps you should explain what sort of "liberalism" you're referring to. If it's the sort of liberalism, of which free markets are a cornerstone, then, you must count Justice Scalia as a liberal. It also doesn't hurt his liberal cred that he's the strongest defender of freedom of speech on the Court (see his dissent in the abomination that is the 2003 McConnell case), as well as its strongest defender of what are commonly thought of as constitutionally guaranteed procedural protections -- 4th, 5th and 6th amendment protections regarding search and siezure, the process due as a requirement of any deprivation of life, liberty or property, and the right to a jury trial. If that's your liberalism, then justices Kennedy, Souter, Breyer, Stevens and Ginsberg are not nearly as "liberal" as Scalia, although Ginsberg has voted with Scalia on a number of cases involving procedural guarantees. On the other hand, if "liberalism" for you means support for a constitutional right to abortion on demand at any time during pregnancy, then Scalia's not a liberal. If liberalism means permitting the most unaccountable branch of government to expand its power at the expense of Congress and to expand federal power, and in particular the power of federal courts, at the expense of the States, even though "liberalism" has traditionally held that the larger, more remote the unit of government, the less democratic that government, then certainly Scalia is not your kind of liberal, and neither were Justice Robert Jackson, Hugo Black, or Felix Frankfurter. FDR might have taken issue with your view of "liberalism," but what did he know?

Posted by: RC | September 20, 2005 07:12 PM

I suspect Michael, posting upthread knows that conservatives judicial nominees do not say what many of them plainly believe -- that Roe was wrongly decided -- because such admission would prompt organized liberal interest groups and the Senators to whom they belong to go to any lengths to keep a nominee making it from being confirmed.

There is in addition the question of upsetting a precedent that while unfortunate in many ways has been treated as settled law for over thirty years -- and difficult as some liberals may find this to believe, a man like Roberts who has spent his life in the law is likely to have deeper convictions about many legal issues than those touching on abortion.

In point of fact, only a tiny fraction of all the cases coming before the Supreme Court have anything to do with abortion, or gay rights, or any of the other things liberals count on the judiciary to legislate on. These issues are what the organized liberal groups care about, though, so their kept Senators on the Judiciary Committee focus mainly on them. Roberts redeemed their undignified and unedifying performance, but since another vacancy is pending we can expect to see it repeated ina few weeks.

Posted by: Zathras | September 20, 2005 09:30 PM

In watching the hearings, sometimes I think the democratic party should just rename themselves to the abortion party. It's all they seem to care about. (And I'm pro choice, but there are other and sometimes more important issues in the world)

Posted by: Bob | September 22, 2005 08:30 AM

Look. Any schoolboy can tell you what has changed since Antonin Scalia whizzed through the nomination process with near unanimity. When Bush came into office, he and Karl Rove governed America in the same way they had campaignred for the Presidency: Slash and burn, divide and conquer, threaten and intimidate bully through your agenda with no regard to public opinion and slander all those who dare criticize your policies.

That style of governing has divided Americans in ways that parallel the sort of divisive animus that afflicted us in the runup to the Civil War. It was an intentional, purposeful strategy that we are all now reaping the whirlwind for.

It is this accumulation of divisive, gotcha type controversies that began with the disputed election in 2000 that has changed the American political landscape. The fallout from 9-11, Iraq and Katrina--events that in a more civil age would have united us--derives from the fact that this President, this administration in a coldly calculating manner deliberately set out to divide the country in every conceivable way imaginable for the sole purpose of consolidating the republican base and crating a lasting republican majority.

It is of profound significance that events on the ground and the painful reality of how those events affect ordinary Americans, is now conspiring to tear apart that consolidated base.

Posted by: jaxas | September 23, 2005 10:57 AM

Bob I know you said you were prochoice. But your comment that democratic party should change there name to abortion party. Just makes me think your another right wing with blinders. How about the fact Roberts has only been a judge for two years and a lawyer for twenty. Do we not have the right to know somthing about him and his resume besides he is nice guy, before we hire him for life (Look at Mike Brown Resume that wasnt question. Larry

Posted by: | September 23, 2005 01:12 PM

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