Wednesday, June 30, 2010

The Generalissima Dances

They're now underway, and it's clear that I was right.  The confirmation hearings are about as vapid as you might expect.
Anything the Supreme Court has ever decided is, the Generalissima tells us, "precedent" and "settled law."  No one has pressed her particularly hard, and she's declined to give any sort of meaningful answer, on whether or when "precedent" and "settled law" should give way - be sharply limited or broadly expanded or overruled.
The long-time professor won't "grade" the work of her she-hopes-will-soon-be colleagues, so we can't actually learn whether she thinks any of those matters of "precedent" and "settled law" were right.  (She does seem to think that Brown v. Board of Education was right and that Plessy v. Ferguson was wrong, but she hasn't been forthcoming about why that is.)
As for actual legal matters, she's happy to explain what the Court said in this or that opinion, but she's unwilling to say whether she thinks any of that is right, and since substantive matters may come before the Court for the first time or again (however unlikely that may be - re Bush v. Gore, for instance, which surely can't, she says the Court might someday again need to decide whether to intervene in an election), why she certainly can't express a view on them.
So, as always at these adventures, we learn nothing except how charming the candidate can be while refusing to answer questions.  On that basis, she's a winner.  She banters some (bits are witty); deflects coyly; blushed (slightly - according to scotusblog's live blogging - at one of her own self-deprecating jokes; can be tediously pedantic; and knows how to bob and weave.
Senator Sessions assailed her.  She did not give ground.  Others praised her, tossed her softballs, asked her to explain away things she'd previously said or written, and made their own speeches - often entirely without questions at the end.
She told us that the positions she took as an advocate (that is, in her role as Generalissima) weren't necessarily her own - though she convinced herself of them before taking her position arguing them in the well at SCOTUS, something every good advocate does.  She told us that although she worked for and deeply admired Thurgood Marshall, she is not he.  She told us that when she wrote for him or as an advisor to Bill Clinton or whatever, she was doing what they wanted, whatever she might have thought.  She told us that what she took from her father, a people's lawyer, was a love of the law.  She did not say that what she took from him was a love of the people or any understanding of how the law could be used.  She said that the way to ensure public respect for the Court was to recuse herself when proper.
When this isn't empty, it's fatuous.
Norm Pattis says this is all sufficient basis for a "bipartisan filibuster."
There is nothing inappropriate about answering an honest question with candor. Kagan's refusal to do  justifies a bipartisan filibuster of her of any vote on her nomination. When she sat before the American people yesterday looking like some sort of self-satisfied chipmunk she did nothing so much as offend.We should offer you lifetime employment based on that interview? I'm sorry, counsel, but I wouldn't hire you as a summer associate if yesterday's evasion is the best you can do. A Supreme Court justice is much like an ancient oracle, your utterances will define the terms and conditions of our lives. It is not too much to ask what you think of issues likely to come before you. I want to know the beating heart beneath the robe.
The he rattles off a list of things he wants to know.  (The list is, of course, not exclusive.  We could all add to it.)  They're things I want to know, too.  So does any Senator who's honest about it.  So should the Pres who nominates.  So should the American People.
They are, of course, things we won't learn.
And there's no excuse.
She doesn't want to "grade" the work of those she hopes will be her future colleagues.  I don't blame her.  It could make for uncomfortable days on the Court if she says that every one of the eight folks with whom she hopes to work for a couple of decades frequently act like dishonest charlatans whose work is ideologically driven, fatuous, and out of step with both the real world and any honest recognition of what the Constitution and the law are really about.
But so what?  She isn't running for Generalissima Congeniality.  She's running for a seat as Associate Justice on the Supreme Court of the United States.  Her efforts toward collegiality cannot trump the Senate's right to ask and learn before confirming.  And certainly should not trump the public's right to know.
And that whole, I can't express a view on any issue that may come before the Court (which is, of course, any issue) because it would be "inappropriate."  Why?  What would be inappropriate about it?
OK, I agree that it would be inappropriate to promise a particular vote in advance of the case being put before the Court.  When she must decide X, it should be on the specifics of the case, the record, the details of the question presented, the briefs and arguments, and the precisely relevant laws.  To promise now what she might say then would be wrong, because it means she won't do her job then.
But to say what she thinks?  Now?  About the issue itself?  In general terms?  There's no reason to refuse.
Justice Scalia has made clear his general view of the constitutional right to abortion.  So has Justice Ginsburg.  So have the rest of them.  Are they, thereby, disqualified from addressing the question when it next comes to the Court?  If they are, then they should disqualify themselves from just about every case.  The Court would be out of business in two years.
If a sitting Justice can express a view in one case and still vote in the next, surely a not-Justice can do that.
The reason to refuse is, of course, political.  It's harder to get confirmed if you've actually taken a stand on something.  You might just piss off a necessary supporter.  Though you might, equally, gain a surprise ally.  Depending, of course, on what your stand is.  Them's the breaks.
Is she qualified to sit on the Court?  Sure.  So am I.  So are you.  (Read the Constitution.  There are no qualifications for Supreme Court justices.)  Does she deserve to sit there?  Maybe.  But we don't know.  We won't learn.  She won't talk.  They won't make her.
I've said all this before.  I said it last year when the subject was Sonia Sotomayor's confirmation hearings.  I'll say it next time when the subject is whoever's.  I'm getting tired of it.
I'll be back doing it again, anyhow.


  1. Nice post. You not only summed up this confirmation but did a fairly good job on the last fifty years as well.

    It's harder to get confirmed if you've actually taken a stand on something. You might just piss off a necessary supporter.

    Try "It's impossible to get confirmed". This should be an examination given by experts in US Constitutional law, and it isn't. For one thing, the examiners know little to nothing about the US Constitution and their ignorance is willful rather than accidental. For another failure to adequately answer any of the questions asked should result in immediate dismissal of the candidate accompanied by a scathing rejoinder to the absolute idiot who nominated him/her/it/other. That won't happen.

    The fact is that the candidate will piss off people during confirmation hearings. Failure to do so indicates a bad choice and a lack of understanding of our legal system. Consider that when any trial or hearing takes place, at least half of the parties involved are going to be unhappy with the outcome.

    This is a farce and a travesty, and the only good result is that the greater number of people who watch this banal circus the greater the chances are that more of the hoi polloi will realize that these nine intellectual giants aren't as tall as they are.

  2. Thanks, Jack.

    I actually suspect that generally honest answers to point of view questions from the kinds of people likely to get nominated wouldn't end up making a difference.

    Let's say that Kagan said she thought Roe v. Wade was right? Surely she does. Roe is a secret litmus test for every nomination President. (Secret, because the question isn't asked, but the answer is made clear.) Would it change a single vote in the Senate? Maybe she'd pick one up from someone who appreciated the candor, but I doubt it. My guess is that it comes out exactly the same.

    And I think that's true with most issues. The broad swath of what's generally acceptable constitutional disagreement may lead to some hand wringing or cheering, but falling anywhere within it won't likely change a vote. And, frankly, it's hard to imagine today a nominee who's really outside that framework. Anyone who's going to say that Brown v. Board of Ed should be reversed at the first opportunity won't get nominated.

    I guess my point is that at least some level of forthcomingness and honesty would be good and wouldn't actually hurt. It might make confirmation harder. It wouldn't shut it down.

  3. If she actually stated her position on a constitutional issue that will come before the Court, it would be taken as a promised vote on the case, something you acknowledge she cannot be seen to do. If she said she supported abortion rights, there'd have to be a filibuster because there are over 40 Senators who are against abortion rights who would feel that politics would require them to vote against her.

  4. I take it back. She did state her position on abortion. It's settled:

    "I believe there is a right of privacy. The court has recognized it over and over again in the Constitution. And let me pre-empt your next question by saying this: I believe that the court's decision in Planned Parenthood v. Casey reaffirmed the court's ruling in Roe v. Wade, settling in place the law with respect to the right to an abortion. I will not announce here whether I personally agree or disagree with that except to say I now recognize those precedents as settled law."

    She may or may not agree it was right, but it's settled and therefore she won't overturn Roe.

  5. Of course, we know her position on Roe. No Democratic President will nominate for SCOTUS a person who does not support Roe. Just as no Republican President will nominate a person who thinks Roe was right. The discussions may be coded, there may not actually be a discussion, but the answers will be known. Perhaps some day that will change, but not yet. Not now. That's the reality of our political system on the single non-negotiable issue.

    Still, she (and every nominee) refuses to admit it.

    Sure, she said it's settled. Listen to her and she said, basically, that everything the Court has decided is "settled."

    Sotomayor said that Heller was settled and then just joined in the dissent from McDonald calling for Heller to be overruled. We can't make them tell the truth. Apparently we can't make them say anything. But we should demand it.

    If people believe an abstract viewpoint, even accompanied by a statement that it's an abstract viewpoint and not binding on a vote on an actual issue, that's their problem. It does not and should not bind the would-be justice. I said she shouldn't actually promise since to do that is to prejudge (though I figure she's prejudged most of the hot-button issues already). But I'm not concerned about what is clearly not a promise being perceived as one. Frankly, I don't think the public cares much about whether she promises. But they'd appreciate some candor.

    Thing is, I'm just a cranky criminal defense lawyer who has little respect for the reality of the system and the essential dishonesty of almost everyone who participates in it from a position of power. Nobody much cares what I have to say.