WARREN: Which existing Supreme Court Justice would you not have nominated?

OBAMA: That’s a good one. That’s a good one. I would not have nominated Clarence Thomas. I don’t think that he…I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.

And then to Senator McCain:

WARREN: Which existing Supreme Court Justices would you not have nominated?

McCAIN: [Pause] With all due respect…Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens.

The discussions generated by this question provided a rare and candid window into how these men regard the nomination process. Obama argued throughout his discussion of the Judiciary that jurists ought be nominated on the basis of merit and experience. McCain, on the other hand, argued that nominations

should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the bench….some of the worst damage has been done by legislating from the bench.

A discussion of Chief Justice Roberts then presented the opportunity for both men to contrast their ideal Justice with one who was currently serving. McCain mentioned that Chief Justice Roberts and Justice Alito were among his “most recent favorites.” He lauded both men as “very fine” and said that he was “proud of President Bush for nominating them.” Senator Obama voiced a slightly different opinion of Chief Justice Roberts:

WARREN: How about John Roberts?

OBAMA: John Roberts….I have to say was a tougher question only because I find him to be a very compelling person, you know, in services individually. He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the Bench confirms the suspicions that I had, and the reason that I voted against him and I’ll give you one very specific instance, and this is not a stump speech.

WARREN: All right. When I pick this up it means –

OBAMA: Exactly. I’m getting the cues. I’m getting the cues. One of the most important jobs of…I believe the Supreme Court is to guard against the encroachment of the Executive Branch on the power of the other branches, and I think that he has been a little bit too willing and too eager to give an administration – whether it’s mine or George Bush’s – more power than I think the Constitution originally intended.

Also receiving a shot out from Obama was Justice Scalia:

OBAMA: I would not nominate Justice Scalia although I don’t think there’s any doubt about his intellectual brilliance because he and I just disagree, you know. He taught at University of Chicago, as did I in the Law School.

I was pleased to see Obama acknowledge that Justice Scalia is “intellectually [brilliant]” and that Chief Justice Roberts is “clearly smart, very thoughtful,” even though these Justices’ interpretations of the Constitution are hardly in lock-step with his own. McCain, on the other hand, listed every single member of the Court’s liberal contingent (with special disgust for Justice Souter) when asked who he wouldn’t nominate.

But Senator McCain really caught my attention by speculating that, during the next four years, “there will be two, maybe three vacancies” on the Supreme Court. In a recent post I argued via a regression model that the next president would have exactly this many vacancies to fill in the next four years, so it’s good to know someone’s listening. But I think McCain was trying to scare the audience by using a number instead of a phrase like “several” or “a few”; by underscoring just how important the next president is going to be in deciding the future direction of the Court, he is endearing himself as a “best of the worst “option to right-wingers who might not be so hot on some other elements of his agenda. Nevertheless, by so prominently promising to nominate originalist jurists, McCain is backing himself into a corner. And I hope that doesn’t mean that he’ll overlook qualified jurists as a matter of process.

For those intrested, the full transcripts from the event are available here.

UPDATE: A lengthier discussion of these exchanges is available in tomorrow’s edition of The Wall Street Journal, courtesy of their shockingly conservative Editorial Board.

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• President Obama and the Future of the Supreme Court (December 4, 2008)
• Updated Humor Statistics (March 7, 2008)
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The problem with Justice Thomas’s book, “My Grandfather’s Son,” is that it nurses bitter grudges and throws brickbats at organizations and people who opposed his nomination and might well appear before the court. Some of his targets, like Senator Joseph Biden and Yale Law School, he mentions by name. Others, like the American Civil Liberties Union, are not attacked as directly, but it is not hard to connect the dots.
…
Justices have an obligation to avoid off-the-bench behavior hurtful to the court’s mission and reputation. They must also comply with federal law, which holds that justices should recuse themselves from participating in cases in which they are biased against a party or lawyer or in which their impartiality might reasonably be questioned.

First off, Justice Thomas’ book is certainly not inconsistent with the “dignity of the court.” There is no reason to believe that Supreme Court Justices have to write books about lofty modes of Constitutional Interpretation or obscure Presidential Elections. Sandy Day wrote a book about her experiences growing up on a ranch and Harry Blackmun played a role in Steven Spielburg’s Amistead. Justices are complex and facinating individuals and the editorial author in question here believes that the notion of judicial impartiality extends to judicial boredom.

You would be hard pressed to find a Justice who is not biased towards one group or another. Justice Ginsburg was a lawyer for both NOW and the ACLU, but she consistently hears cases presented by both groups (perhaps inappropriately.) I may not be fond of his judicial philosophy, but Justice Thomas should not be forced to temper his public comments in order to hear cases that arise from these organizations, especially when his comments are historially, and not politically, based.

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• Which Justice Is The Most Talkative? (November 8, 2007)
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They note that the recent rise of originalism can be attributed to the parallel rise of Reagan Republicanism. The notion of ‘originalism’ certainly wasn’t created in the late 70′s and early 80′s, but the heavily political connotations that accompany it today were solidified nearly 30 years ago.

The authors concede that originalism has appealed to the voting populous because it “depicts judges as neutral umpires bound to apply disinterested rules of law.” This oversimplification is undoubtedly the reason that it appeals to so many people, but I’m honestly not sure what Democrats can do to counter the conservative stronghold on the judicial subject without trying to gain some ground on originalism.

Liberals do need to re-learn how to make claims directly on the Constitution–an instinct they lost after decades of defending Warren and Burger Court precedents. But to advise liberals to make claims as originalists mistakes the source of originalism’s power and misconceives what liberals must do to develop their own vibrant constitutionalism.

Originalism, original ‘intent,’ and original ‘meaning’ all sound so appealing because they are defined in such palatable terms. Conservatives, moderates, and many liberals all find comfort in the idea of a judiciary that adheres to precedent in a way that increases consistency and fair play. Originalist decisions, by popular belief, enforce the rule of law, ignore the individual biases of judges, and limit the role of the government.

Democrats have a few options here. First, they could accept the term ‘originalist’ as their own and try to convince Americans that a progressive outcome can follow from originalist logic. This outlook might fly in some academic circles, but it would be tough to convince ordinary Americans that ‘liberal’ justices are good. Another option that the democrats have is to accept that conservatives are ‘originalist’ and democrats are ‘______.’ Post and Siegel favor this approach, but they never really mention the idea that they would push instead of originalism. They suggest the following:

Quite simply, then, progressives can argue that they are committed to achieving the Constitution’s purposes. Protecting equal citizenship in work, education, and the family is necessary to establish the democracy the Constitution seeks to secure. Subordinating arbitrary executive power to the rule of law is necessary to safeguard the freedom the Constitution exists to preserve. Enabling the federal government to meet the needs of its citizens is necessary to sustain the powerful nation the Constitution seeks to create.

Their ideas sound wonderful, but its hard to counter the seemingly clear-cut connotations that accompany anything that is an alternative to originalism. The idea of developing and pushing an alternate form of interpretation is definitely the most appealing for Democrats — if they could rally behind a single idea. The notion of a ‘living constitution’ isn’t particularly appealing to Americans because it reeks of judicial activism in the most pejorative sense.

Democrats need to either claim the title of originalist or show Americans why that title is more like a scarlet letter than a badge of honor. If they fail to successfully sell either of those two ideas soon, the most likely outcome is a major conservative shift to the right within the next 5-7 years. In the past when the Court has been filed with justices of a similar political persuasion (conservatives in the 30′s, liberals in the 50′s and 60′s), Americans have slowly but invariably grown dissatisfied with the Court.

Unfortunately for the Democrats, if they don’t spend major political capital on the court, I wouldn’t expect another major shift in popular opinion until about…..2025.

Related posts

• Why Courting Americans with the Court Won’t Work for Democrats (July 18, 2007)
• Originalism Reconsidered (August 9, 2007)
• If I Hear One More Word About Clarence Thomas And Originalism… (July 12, 2007)

Their latest attack on the liberal members of the court comes by accusing Justice Breyer of violating the separation of powers doctrine by advocating the investigation of some of his co-workers. They cite the even less-legitimate blog Pro-Life Blogs:

an “overt attempt to undermine Roberts and also influence the political process in judicial selections, altogether compromising the separation of powers.”

RedState further criticizes Justice Breyer:

Justice Breyer has apparently overlooked a new-fangled method of dispute resolution between Justices on the High Court: Talking to his colleagues to discover why they rule as they do, and trying to persuade them to adopt his view.

Wow, RedState either knows something about the inner-workings of the Court that has escaped the rest of the blogosphere or they are asserting something that they can’t back up with facts. Keeping in mind that they are a conservative blog, I’ll assume they fall into the latter category. For some reason, I’m not particularly upset about Arlen’s little spectacle. I think my ambivalence has a lot to do with the fact that I know Senators are political creatures and thus have a political nature. The cute sideshow that Spector will perform in isn’t going to change much for the court so the Justices don’t care.

With the information we currently have, there is no reason to believe that Justice Breyer asked Senator Spector to ‘investigate’ his colleages. All we know (assuming we believe Spector 100%) is that Justice Breyer expressed his displeasure at the conservative block to Senator Spector at the Aspen Ideas Festival. I would hardly consider two grown men talking about law, politics, and life a serious threat to the long-standing (and rather malleable) notion of separation of powers.

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For at least thirty-one out of thirty-five years as Chief Justice, Marshall had been out of sympathy with the political views predominant among the people, and inspiring the statesmen at the head of the Government. Moreover, he had never been a lawyer deeply grounded in the common law; and he had possessed a highly conservative nature and mental attitude in view of the changes and reforms which were now taking place in the economic and social conditions, and the liberalization of political sentiment and process which was marking a new era in the county’s development, he was clearly out of touch with the temper of the times and less fitted to deal with the new problems of the day than with the great constitutional questions of the past.

Admittedly, history usually smiles down upon justices who were left of their contemporaries (Marshall) and frowns upon justices who were right of the mainstream at the time (Taney.) When I read Warren’s refreshingly honest account of Marshall’s later years, I am reminded that Supreme Court justices are valuable precisely because they serve unnaturally long terms and resist, for better or worse, change that would have been unimaginable years earlier. Even though I’m not a particularly vocal fan of Justice Scalia’s judicial philosophy, I must admit that there is value in having a diverse collection of Justices sitting on the court. Justice Scalia’s rejection of recent trends such as civil rights, free speech, and democracy may seem archaic to some, but he’s just a relic of the past and we should love him for it. Bless you, Antonin, and thanks for the good times.

Related posts

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He claims that he got the idea from Justice Breyer when they meet recently at a convention. Justice Breyer has been one of the most vocal opponents of the newly formed conservative voting block on the court but I don’t think he wants Specter to go back and ‘investigate’ two of his colleagues. I put ‘investigate’ in quotation marks because the whole notion of a Senator looking into a Justice’s judicial philosophy is rather baseless. This is a classic example of Congressional showboating- an action that means nothing but puts on a show that will appeal to the misinformed constituency. Regardless of what he ‘finds,’ there isn’t a whole lot a Senator can do to a Supreme Court Justice save for pushing for impeachment.

According to Specter, Breyer had mentioned that there were eight cases in which the conservative majority flaunted precedent. If I had to guess which those were, I would say Carhart, Wisconsin Right to Life, Parents Involved, Leegin, and Morse are definitely five of the eight cases that make Breyer’s list. The last three could be any number of cases, but my list would include National Defenders of Wildlife, Bowles, and Ayers.

Ledbetter and Hein were probably the most high-profile conservative wins that would be considered new questions enough that the conservative ruling, even though cutting back on trends, is not a violation of ‘stare decisis.’

Maybe Specter rediscovered his wonderful ‘contempt of Congress’ privileges and wants to hold two Justices of the United States Supreme Court in contempt of Congress for…being mean? being conservative? evolving as Justices? If I were to list the top 5 things that I don’t ever want to experience, being in contempt of Congress would surely make the list. A recently released report by the Congressional Research Service entitled “Congress’s Contempt Power: Law, History, Practice, and Procedure” only reaffirmed this mortal fear of mine so I thought I would do my best to spread the word about Congress’s dictatorial powers.

Related posts

• Unity Defined (June 11, 2007)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)
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Everyone (almost) agrees that peace is a good thing. Conflict arises when one group of people feel that a little bit of war can preserve a lot of peace- others would say that we have to do everything in our power to sustain peace even if it means potential war in the future. Maybe peace domestically means allowing less peace abroad or vice versa. In the same way, ‘strict constructionism’ requires us to strictly construct something, but what, where, when, and how strictly?

The folks over at Sobi bring up an interesting point in their discussion of strict costructionism. Remember the era when the court hadn’t established a ‘right’ to privacy, separate pretended to be equal, and businesses had free reign over the election process? That was strict constructionism.

Strict constructionism, in practice, has a lot of the same problems as originalism. All too often, a ‘strict’ construction of the Constitution goes against a lot of very intuitive logic to produce a result that the vast majority of people would not be comfortable with. Here are some aspects of life under a perfectly strict interpretation of the Constitution: