Monday, October 17, 2005

Fatal flaw?

One might wonder whether such a thing (a negative view of Roe, to such an extent that the decision should be overturned) should eliminate a nominee, but this indicates that Miers might have a serious problem in front of the Senate Jud Com.

Some odds-makers have turned against Miers...


J. Li said...

Schumer is now backing off, which I must admit is the best news I've heard about Miers thus far. Remember, the better of two evils (from my point of view) is someone slightly unqualified, not someone who is a judicial activist. I know some out there disagree with this, chief of them Chuck Schumer and perhaps some libertarians. Leaving the latter group aside, Schumer's now backing off must represent some belief on his part that her being slightly unqualified is not enough to turn her into a judicial activist, which then makes her useless to him and his political party. In other words, somehow he is more inclined to believe that she will be a Scalia/Thomas follower rather than something else (O'Connor moderate, Breyer follower, etc.).

This, as I've said all along, would've been the only way to defeat Miers' nomination, and perhaps it's going to happen now. If I were a Schumer staffer, though, this would not be my advice, given how Bush certainly won't anger his conservative base--both the intellectual and the religious--a second time. But perhaps he knows something I don't about her background (likely), in which case, that speaks FOR Miers more than anything else I've heard so far.

Charles Iragui said...

J. Li,

I don't see how Miers is getting onto the Supreme Court: everyone has a good reason to vote against her.

The question then would be: who will replace her? Bork's rejection forced a more moderate nominee. I believe Miers, a compromise nominee, will force a crunchy conservative. Edith Jones is my bet.

D said...

It occurred to me after reading J.Li's comment, that I would like to see a post/discussion on here sometime about what exactly is meant when various people use the phrase "judicial activism,” or “legislating from the bench.” Is a judge an activist if he/she strikes down state and/or federal laws? If that’s the case, clearly there are as many judicial activists on the right as there are on the left (think affirmative action and commerce clause cases). Or does judicial activism have something to do with substantive due process?

After taking Con Law I and II -- and developing some understanding of Supreme Court jurisprudence -- those phrases have lost meaning for me, or at least taken on various meanings depending on who is using them. I’d be curious to see what others think.

As an aside, Charles, we spoke about the Miers nomination recently, so I understand how you feel. But (and it’s a big one) IF she makes it to the hearings without dropping out (or being kicked out), she will be confirmed.

- Dave Lane

Charles Iragui said...


If Miers acquits herself well at the hearings, I suppose she will have earned a seat on the Supreme Court. The probable Dobson testimony before the Senate on what assurances were given regarding Roe would seem to preclude clear sailing. Can she rise to the occasion?

J. Li said...

I'll just do what the liberterians do (I subscribe to this only partially myself): call "activism" reading stuff into the Constitution that isn't there. Hence, Morrison and Lopez are not "activist" because Congress's enumerated Commerce power is (clearly) limited by Consitutional text. Roe is "activist" because penumbras of the Bill of Rights are by definition not actually in the Bill of Rights.

Kelo (which lets New London do what it wants) is not "activist" but was nontheless wrongly decided because of what Janice Rogers Brown said in her Chicago Fed Soc speech (easily findable on the Web) about Lochner being correctly decided (i.e., private PROPERTY rights are part of the Constitution, either as part of the Fifth Amendment as incorporated, or part of the general capitalist / ownership values the Framers must have had in mind in 1789, so much so that they didn't even need to say "collectivism is bad" because it was just too obvious in 1789 that that was so).

I haven't read this over. Sorry for any errors or typos.

Charles Iragui said...

Truest form of "judicial activism": decision which actually contravenes the constitution to get where the court wants to go.

An example of this would be declaring the death penalty unconstitutional on the grounds of cruelty (reads legal deprivation of life out of the constitution). I use this example because I am against the death penalty and could not simply follow my preferences.

paleocon said...

What about some of the favorite conservative substantive due process rights like educating your child as you see fit? See Pierce. Judicial activism has worked for both sides, but more so for liberals and more so for them recently.

Charles Iragui said...


I'm not sure to whom your "what about" is addressed but I'll throw in my 2 cents.

Substantive due process has been creatively abused, no doubt. BUT that is still not as bad as actually writing words OUT OF the constitution (interpreting text is at least difficult, reading it is not). An example: Justice Iredell in Chisolm chose to ignore the specific language of Art III Sec 2 affording the right to individuals to bring suit in federal court against states of which they were not citizens. He was luckily in the minority. His opinion was soon endorsed by the ratification of the 11th Amendment, which at least respected the proper manner to change the Constitution.

Professor Barnett has written (Restoring The Lost Constitution) on the need to give meaning to all the text of the Constitution, something that it has sometimes refused to do.

This Thursday at 4pm in room 109 he will be speaking on a theme related to this: the meaning of the currently almost contentless 9th Amendment. Should be thought provoking!

D said...

Interesting points J. Li and Charles. But...

First, I don't see how constitutional text is so clear when it comes to commerce power.

But putting that aside for the moment -- few people subscribe to Justice Black's literal Constitution view. If we only looked at the literal words of the Constitution, there would be no laws abridging the freedom of speech, but of course there are many such laws. There are lots of examples from other Constitutonal provisions. So activism cannot just mean reading things into the Constitution that are not there.

Also, as far as the 8th Amendment goes, it seems to me that there are perfectly reasonable (I think convincing) arguments that phrases such as "cruel and unusual" are open to interpretation. Surely activism is not when the Court interprets vague constitutional provisions.

I'm still stuck with the idea that that "activism" is in the eye of the beholder until someone convinces me otherwise.

-Dave Lane

Charles Iragui said...


I agree with you: "interpreting text is at least difficult, reading it is not". So, to distinguish an unexceptable "activism": how could it ever be justifiable to explicitly give NO meaning to constitutional text, or, even worse, to refuse to obey the direct injunction (an argument is made that bail is often set unreasonably... without the Supreme Court paying any mind to the 8th Amendment)?

As far as the death penalty: 5th Amendment due process is guaranteed before deprivation of life. How could "cruel" be understood to mean that the death penalty is strictly forbidden?

D said...

Charles wrote: "As far as the death penalty: 5th Amendment due process is guaranteed before deprivation of life. How could "cruel" be understood to mean that the death penalty is strictly forbidden?"

Interesting argument Charles. I have two reponses:

1. If one believes that 'evolving standards of decency' tell us what's cruel and unusual, it's possible that if we decide killing is per se cruel and unusual then it becomes unconstitutional--even if that renders another part of the Constitution moot.

2. Your argument assumes that the only way to end the infliction of the death penalty constitutionally is to find that the death penalty is "strictly forbidden." As it did in Furman, the Court could find that the way we carry out the penalty is cruel and unusual, thereby effectively ending the death penalty. Put another way, the 8th Amendment proscribes cruel and unusual punishments. The Court could find that in carrying out the death penalty, states (and the feds) act in unconstitutionally cruel and unusual ways (arbitrary, racist, making someone sit on death row with a death sentence hanging over his head for 15 years, etc.). In such a case, it would not be death per se that is unconstitutional, but the methods we use to inflict the penalty.

So even if it is the case that the Court cannot strictly forbid the death penalty, it can (as it did in Furman -- at least for a while) effectively end the death penalty.

Charles Iragui said...


1. This is exactly the problem with evolving standards of decency: it would seem to permit constitutional amendment by Supreme Court diktat.

2. You caught me. I was wording my comments carefully to avoid other grounds. Ultimately, though, Furman correctly did NOT rule the death penalty impermissible, just subject to high standards of process, as the Bill of Rights requires. Otherwise the Court has been nibbling on the death penalty. "Eroding" it in preparation for ultimate banishment?

D said...


I don't mean to be contrary, but I suppose one man's constitutional amendment is another's constitutional interpretation.

Aside -- I enjoy this blog and am pleased to have a place to discuss law with those to the right of me. Thanks for the forum GULC Feds.

And (I'm sorry, I can't help it) I wish you all a very merry Fitzmas.

-Dave Lane

D said...

It would appear this thread needs updating as far as the Miers nomination is concerned. What will happen next, time will tell.

I will say this -- the following GOP talking points are now dead in the water (killed by the hand that fed them):

1. Every nominee deserves an up or down vote.
2. There should not be a litmus test on abortion for judges.
3. Bush was elected President, so he gets to pick who he wants for the Court.
4. Nominees should not be Borked (I suppose it's somewhat poetic that Miers was Borked by Bork).

J. Li said...

This comment rambles a bit...Apologies in advance.

I have no idea what Bush is going to do next. Lyle Dennison over at SCOTUS blog commented at His point was that Bush will likely go with a "consensus nominee" because (1) he's politically weaker than ever, (2) he is angry at his conservative base (poor baby--maybe he should take a nap!), and (3) a filibuster is likely (he needs to find someone "wholly acceptable to the moderate Republicans in the Senate").

I think this analysis is plain nutty, but even if it were correct, Bush will not get away with it. If he puts up another unknown quantity, we will smother it again. We're patient. We have the likes of George Will, David Frum, Pat Buchanan, Rush Limbaugh, Ann Coulter, James Dobson (now in agreement that Miers was a bad choice), Charles Krauthammer, Peggy Noonan, Robert Bork, Michelle Malkin, and Bill Kristol ready to go through this again, if need be. So what if we kicked Bush while he was down? He deserved it. Our allegiance is not to him, and it most certaintly is not to him when he spits in our face.

As for Dave's points, I suppose I can spin each of them in some way to make what we did okay (i.e., distinguishable), but it would only be spin. There is no procedural consistency. We want substantive outcomes, and so do you. We will do whatever it takes to get there. In a larger sense, judicial restraint is a tool for us, as well, as you've pointed out in this thread. Of course there is an intellectual basis for it, but I agree entirely with you that we wouldn't be advocating for it if most of the substantive outcomes we got out of that tool weren't "conservative."

So yes, I've become a rabid partisan. The GULC professors have failed to indoctrinate me in their brilliant ways. Oh, well. My bad.

D said...

J. Li,

Your honesty is refreshing. Finally a conservative who admits that the 'strict constructionist' nonsense is just that -- nonsense. It's the substantive outcome that almost everyone is really concerned with.

I haven't read the SCOTUSblog article you mentioned, but from the way you described it the theory is not that Bush will appoint another "unknown quantity," but that he'll appoint a consensus nominee. That could be someone closer to Gonzales, than, for example, Brown.