Supreme Court Poker, with a review of obstructionist tactics

National Journal ^ | July 8, 2005 | Stuart Taylor Jr.,

[OESY]

The president's favorite judge had scornfully denounced as "illegitimate" dozens of the "most significant constitutional decisions of the past three decades," as well as others going back to the 1920s. He had excoriated "the modern, activist, liberal Supreme Court" for rulings that recognized rights to abortion, contraception, and other aspects of the "right to privacy"; struck down governmental discrimination against women; outlawed official endorsement of religious symbols; required "one person, one vote"; banned poll taxes; and protected sexually explicit speech.

And as if to erase any doubt about what Judge Robert Bork might like to do if elevated to the Supreme Court, he vowed in an April 1987 speech that his own original-intent approach to constitutional interpretation would, in time, "sweep the elegant, erudite, pretentious, and toxic detritus of non-originalism out to sea." A lot of that "detritus," including Roe v. Wade, had been subscribed to by Justice Lewis Powell Jr., the moderate, swing-voting, Nixon-appointed Southern gentleman whose retirement three months later set the stage for President Reagan's nomination of Bork.

Those were the good old days, at least if you were a liberal seeking to alarm both liberal and not-so-liberal voters. The same paper trail that brought Bork the nomination also made it easy for his critics to argue that he would take a wrecking ball to a long list of constitutional rights. Together with other ingredients -- Democratic control of the Senate, hyperbolic distortions of Bork's record as a judge, and the nominee's dour demeanor, disdain for political pandering, and less-than-elegant beard -- the Bork paper trail brought a 58-42 defeat.

No serious aspirant to the Supreme Court today would give the world so clear a picture of what he or she might do if appointed. At the same time, we are unlikely to see another unknown quantity such as Justice David Souter, whose liberal votes and opinions ever since the first President Bush plucked him from obscurity in 1990 have made "no more Souters" a conservative rallying cry.

Unlike Souter, almost all of today's would-be justices are well known to the administration's legal experts and are seen as true-blue conservatives, with the exception of the somewhat-more-moderate-seeming Attorney General Alberto Gonzales. Most of the candidates also have track records on federal appellate courts (or as law professors). But predicting how most of them might vote, if promoted to the high court, on any specific issue is educated guesswork -- especially when the issue is whether to overrule a liberal Supreme Court precedent that lower courts must follow.

Take the question that looms largest to many activists and voters: Would the nominee seek to overrule Roe v. Wade? Bork seemed a good bet to do just that. The same appears to be true of one candidate on the short list reportedly circulating at the White House: federal appellate Judge Edith Hollan Jones of Houston, who wrote last year that Roe was "an exercise in raw judicial power" that had led to "perverse" results and should be reconsidered. Most of the other short-listers, however, have never publicly expressed a view on whether Roe was a bad or good decision, let alone whether it should be overruled despite repeated reaffirmations over more than 30 years.

But President Bush has an edge over his adversaries in the educated-guessing game. Two edges, really. The first is that he knows (or his advisers know) what the candidates have said about their views in private as well as in public. Bush's second edge is that the burden of proof has traditionally been on critics of an otherwise well-qualified nominee to show that his or her ideology is too extreme. This is especially true when, as now, the president's party controls the Senate.

This is not to suggest that Bush or his aides would disregard President Lincoln's rule that "we cannot ask a man what he will do [on the Court], and, if we should, and he should answer us, we should despise him for it." Putting aside the ethical problems with seeking anything close to a secret pledge, Bush knows that senators will grill the nominee in detail about his or her conversations with the White House. Democrats would decry any sign that abortion or other hot-button issues had been discussed as the kind of "litmus test" that Bush has said should not be used, by him or anyone else.

The president's informational advantage is, rather, that the main candidates have long been personal or professional friends with many administration lawyers and advisers, who can base their predictions on years of private conversations. And Bush himself is personally close to one leading candidate, Gonzales.

(A cautionary tale: President Truman put four cronies on the Court, only to be bitterly disappointed when two of them helped strike down his seizure of the steel mills during the Korean War. "Whenever you put a man on the Supreme Court," Truman later groused, "he ceases to be your friend.")

Assume for the sake of argument, for example, that Bush is eager to appoint a justice who would vote to overrule Roe v. Wade, and wants to know whether federal appellate Judge J. Michael Luttig, of Alexandria, Va., the favorite candidate of many conservatives, would fit the bill. Luttig's decisions certainly show him to be a devotee of conservative, original-intent jurisprudence. And almost all such people see Roe as without support in the text or history of the Constitution, as did many liberal scholars in 1973, when Roe came down. But Luttig has never publicly attacked Roe. And in striking down a ban on "partial-birth" abortion in 2000, Luttig wrote that the result was compelled by a recent Supreme Court decision in a similar case and that the protection of "a woman's fundamental right to choose whether or not to proceed with a pregnancy" was a matter of "super stare decisis," meaning firmly settled precedent.

Does this mean that Luttig would still feel bound by Roe if he were a justice? It's impossible for an outsider to know. But Luttig's friends in the Bush administration might have a pretty good idea. Among the former Luttig law clerks (known as "Luttigators") scattered through the administration is Theodore Ullyot, now Gonzales's chief of staff.

Senate Democrats and liberal groups, for their part, certainly suspect that Luttig would vote to overrule Roe. And they are quite sure that in any event, he would be steadfastly conservative across the spectrum of ideologically charged issues. But how could Luttig's critics hope to convince moderate senators and a not-very-engaged public that they should fear this soft-spoken, scholarly, apparently principled, likable family man? "He's too conservative" probably wouldn't do the trick. "He would roll the clock back to the days of back-alley abortions" has a more alarming ring. But that claim is unprovable.

Liberal groups and Senate Democrats have devised several strategies over the years to compensate for their probable inability to prove that any nominee would perform the kind of radical surgery on constitutional law that Bork almost advertised his eagerness to do.

Shift the burden of proof. Through most of the 20th century, senators tended to assume that Supreme Court nominees were ideologically acceptable unless they had shown otherwise -- as did Bork, in the view of Democrats. But this traditional presumption of fitness has become increasingly frayed.

The standard tactics include putting the worst possible spin on the nominee's often-ambiguous record.

An example: "Judge Souter's opinions and legal briefs threaten to undo the advances made by women, minorities, dissenters, and other disadvantaged groups," said Nan Aron, of the Alliance for Justice, in 1990. Souter soon proved to be one of the most liberal justices.

After Bush had become president in 2001, liberal scholars and Senate Democrats claimed more explicitly than ever before that Supreme Court nominees should be presumed unfit ideologically until proven otherwise. "We require parties who appear before a court to prove their case," Sen. Charles Schumer, D-N.Y., said during a September 2001 hearing. "It is not unreasonable to ask those who come before the Senate seeking a lifetime appointment to the federal bench to do the same."

Demand testimony about his or her views. The premise that a nominee must prove that his or her views are acceptable leads Democrats to the conclusion that the nominee must testify in detail about what those views are. They must also pass certain tests: "Unless Judge [Clarence] Thomas explicitly ... recognizes that the Constitution protects the fundamental right to privacy, including the right to choose, the Senate should reject this nominee," NARAL's Kate Michelman asserted in 1991.

Nominees have traditionally parried such questions by noting that to "endorse or criticize specific Supreme Court decisions presenting issues which may well come before the Court again" would create an appearance of partiality, as Sandra Day O'Connor testified at her 1981 confirmation hearing. Although some nominees have answered such questions -- Bork, for example, had little choice but to explain his prior public attacks -- "no nominee who has clung to [the O'Connor] position has ever been forcibly dislodged," according to Seeking Justices, a 2004 book by Michael Comiskey.

Schumer and his allies want to change that. "With a flick of a pen, [the justices] can change people's lives," he said on ABC's This Week on July 3. "To just say, 'OK, tell us where you went to law school and what your career was, and have you ever broken the law? You're on the Supreme Court' -- no way." On the same program, Republican Sen. John Cornyn of Texas surprised Schumer by conceding that as long as nominees are not asked to "prejudge" cases, "it's an appropriate question to ask what their views are on cases that have been decided and judicial opinions that have been written." Democrats will take this as a green light for questions such as these:

Do you think that Roe v. Wade was correctly decided? What about the decision requiring removal of framed copies of the Ten Commandments from the walls of courthouses? And the one allowing race-conscious admissions at the University of Michigan Law School? And the one striking down a Texas law making gay sex a crime? How about gay marriage? And do you agree with the views once expressed by Bork that "I don't think that, in the field of constitutional law, precedent is all that important"?

Look for the nominee to duck such questions as much as possible, while White House handlers gauge how much leg he or she needs to show in order to win.

Demonize the nominee. Some liberals believe that one or two or three Bush appointments could usher in the moral equivalent of the Dark Ages. But it's hard to sell this proposition to the unconverted, most of whom have only the vaguest notion of how changes in the Court's membership might change the country. It's especially hard when (as seems likely) the nominee is a well-spoken, decent-seeming, patriotic family man or woman who hasn't launched Borkian attacks on the precedents that the liberals fear he or she might overrule.

One way to deal with this dilemma is to resort to hyperbole, painting the nominee as almost a monster. That's what Sen. Edward Kennedy did in his famous "Robert Bork's America" speech. It was apparently pretty effective. Whether Kennedy will do it again remains to be seen.

Investigate his or her private discussions. Like opposition researchers in presidential campaigns, liberal confirmation warriors will also canvas the nominee's law school classmates, co-clerks, former colleagues and subordinates (remember Anita Hill?), neighbors, and perhaps even jilted lovers -- especially any who may have grudges -- in search of evidence of controversial views or actions. At least one political consulting firm with ties to abortion-rights activists has already submitted requests for the financial disclosure forms filed by more than two dozen possible nominees.

During the 1991 battle over the Thomas nomination, for example, four prominent opponents, including Rep. Maxine Waters, D-Calif., and Ralph Nader, took out an ad in Legal Times soliciting information from anyone who had ever heard Thomas "express an opinion about abortion rights or about Roe v. Wade." This solicitation came after Thomas had sworn that he did not recall ever having discussed the merits of the decision, in public or in private.

Demand confidential documents. Among the factors that sustained the Democratic filibuster that stopped Bush's 2001 nomination of conservative Washington lawyer Miguel Estrada for the U.S. Court of Appeals for the D.C. Circuit was a demand for copies of internal memoranda that he had written as a lawyer in the Justice Department's elite solicitor general's office.

A former colleague of Estrada's told Senate Democrats that the memos would show Estrada to be a rigid conservative ideologue. But the administration spurned Democrats' requests for access to the Estrada memos. And some leading Democrats, including former Clinton Solicitor General Seth Waxman, also argued that such memoranda have traditionally been and should remain confidential.

Republican experts who are mobilizing for the coming battle predict that Democrats will try to use similar demands to stymie any nominee who has ever worked in a sensitive government job. The argument will then be over whether the administration is refusing access to the documents because they would be embarrassing -- or whether the Democrats are on a fishing expedition launched mainly for purposes of delay.

[Redbob]

""Whenever you put a man on the Supreme Court," Truman later groused, "he ceases to be your friend."

George Bush take note.
You put Gonzales on the Court, and you'll regret it within months.

("Gonzales" I hear is Spanish for "Souter")

[Redbob]

"John Cornyn of Texas surprised Schumer by conceding that as long as nominees are not asked to "prejudge" cases, "it's an appropriate question to ask what their views are..."

John Cornyn's picture appears in my Funk & Wagnall's beside the definition of "pompous ass."

[Revel]

I'll bet that when this is all over we will have New SC justices that are very socialist and unconcerned about the constitution. They probably will not be christain. In order to beat the dems on this you have to first point out just how bad the recent court decisions have been for America and why. You have to make a case that in order to save this country from judges that make there own law that we have to put people with integrety and the morals to follow the US constitution into the SC. There is no better person to lead this fight than the president of the united States. Yet I do not believe that we will end up with good supreme court justices just because Bush is a republican. If the past is any indication of the future then I am quite scared that we will end up with judges who will tow the government line and not judges who follow the supreme law. This can happen either by design or through compromise. I don't think that we as conservatives are going to get much say in any of this. In this case it would be nice to be wrong.

A good line for Bush:

"We want SC justices who don't believe it right to steal the homes of Americans and give them away for a profit."