Thursday, September 22, 2005

Schumer, Roberts and Dr. Zhivago

I have tried to pay pretty close attention to the hearings (especially now that I might get questions about it at work), but alas, I was not able to give my undivided attention to the proceeding the past few days. I have, however, tried to keep up with Schumer's remarks to Roberts.

Now the question, to my mind, is not whether Roberts will be confirmed, but whether the Dems should endorse him. Frankly, I think he is a wonderful candidate and will make a fine justice, but what I have heard of the hearings the last four days really upsets me. Through hours and hours of questions, through three days of questioning the most substantive things Roberts told the commission was that he believes in the right to privacy, as found in the liberty clause of the 14th amendment and that two of his favorite movies are "Dr. Zhivago" and "North by Northwest," the man was a tar baby.

Generally I felt that Roberts was taciturn on many issues which were "softballs" (in the words of Schumer-like stupid comments of Pat Roberts and asking for an apology for using the word "amigo" in a memo). More importantly though, he repeatedly refused to answer direct questions from senators about his view of the law. While I think that questions like, "Well, how would you have voted on Kelo?" are stupid, questions which ask how he understands basic legal principles like the interstate commerce clause (which he kind of did open up to Schumer on day 4) ought to be taken seriously. That he was not forthcoming indicates to me that he knew he would be confirmed and thus any answer would only put him at risk.

In Schumer's remarks today I think he said as much when he announced he would vote against the nomination. Again, the senate vote by Schumer is not one for Roberts's conformation, but against meaningless hearings.


Shmuli said...

Well apparently Zev likes certainty in how judges interpret the Constitution, just not certainty in how the Constitution is interpreted.

Imagine a system where our elected officials were simply put forward for a yes/no vote, alone and uncontested. These candidates would likely straddle even more than they do now and refuse to take sides. Why make enemies? Conversely, imagine a system where judicial candidates openly campaigned against eachother for office. The future behavior in office of these campaigning judges would be much clearer. Of course this latter system doesn't really add anything to one where judges left legislating to elected legislators, but I don't think you really want that, Zev.

Shmuli said...

What's your job?

Zev said...

A number of things Shmuli

1. I am interning in Sen. Schumer's Buffalo office. As I am an intern and not an employee, I have been told that I can still blog about such issues.

2. The effect of the opening line evades me. Please explain.

3. The point of the post was to skirt questions about whether or not the conformation process is good or not. Rather, assuming that the process is in place, how should one vote?

4. a) I don't believe that a judge can, "left legislating to elected legislators." If we actually felt that way we would just have judges call up the sponsors of the bills in question (when possible, of course) and ask them, "So what did you mean when you drafted the Endangered Species Act?" We have a separate judiciary for a reason. It is supposed to act as a check on the legislative arm, and make sure that it does not get out of hand. Now, like it or not, the judges are supposed to interpret the law as they understand it, which IMHO is de facto legislation, by expanding or constricting the law's scope. I think that the authors of the constitution recognized the power of the judiciary and thus had it be an appointed position, giving the executive and legislature at least some say in who we see on the bench.
b) Why not make enemies? You are life tenure and there are 55 of your buddies just waiting to press the yes button. What do you have to gain by trying to evade every question?

Shmuli said...

2. The only use of fuller answers from Roberts would have been in order to predict how he would behave on the Court. I believe that was Senator Schumer's stated reason for asking the questions. Previously you have told me that you favor "meta-interpretation" of the constitution, which is distinct from normal interpretation of statutes in that there is a much wider set of possible rulings. So to restate, you want more certainty in how judges will interpret the constitution (i.e. Judge Roberts giving a better sense of how he will rule) but less certainty in how the Constitution will be interpreted (because you favor a wider set of possible interpretations for Constitutional text).

3. I don't understand how you can ignore the desirability of this confirmation process, assume it is in place, and announce your opposition based on the confirmation process.

4a. You recognize the distinction between "meta-interpretation" and normal interpretation. I agree there will always be some discretion inherent in the judicial role but expanding beyond that is what I have referred to as judicial legislation. Further, Senator Schumer, I believe, also made reference to the desirability of judicial modesty visa-vis legislative decisions.

4b. Senator Chafee refused to support President Bush. What makes you think he's dying to support Judge Roberts? Quite a few other Senators prefer to vote for the quiet Roberts than a hypothetical Roberts who suggests a stance that could lead to a campaign ad against the Senator. Moreover, how do you ask "What do you have to gain by trying to evade every question?" after saying "That he was not forthcoming indicates to me that he knew he would be confirmed and thus any answer would only put him at risk." Perhaps it wasn't clear that by "making enemies" I meant that the "enemies" could put his nomination at risk. In any case, the relevant question isn't whether there are fifty votes to confirm Judge Roberts, but whether there are fifty votes to kill judicial filibusters in order to confirm Judge Roberts.

I disagree with your suggestion that Senator Schumer voted against Judge Roberts only because the hearings did little to illuminate Judge Roberts' views. Senator Schumer explicitly said he would vote against a nominee who he felt outside the mainstream. Senator Schumer's views of the "mainstream" are, needless to say, somewhat skewed to the left. It also strains credulity to believe that Senator Schumer would have voted against a Democratic nominee to the Supreme Court for empty hearings.

Moreover, I think Judge Roberts' answers to the "softballs" were perfectly fine. Judge Roberts expressed disagreement with Pat Robertson's comments. Senator Schumer's apparent insistence that Judge Roberts express that the comment turn his insides was more than a little silly. Why should Judge Roberts apologize for using the word "amigo" if he didn't think it wrong?

jacob said...

Zev - a few points on your response to shmuli:

1) you wrote "I don't believe that a judge can, "left legislating to elected legislators." If we actually felt that way we would just have judges call up the sponsors of the bills in question (when possible, of course) and ask them, "So what did you mean when you drafted the Endangered Species Act?" Actually, the way it work would be to have the courts kick the question back to Congress to decide. Sound ridiculous? It is called the Napoleonic Code and in its original version it did just that. What present day Napoleonic regimes do (most of the world, and Louisiana) is write legislation that is very exhaustive and imagines all possibilities. I do not advocate such an approach but it is not completely ridiculous.

2)"We have a separate judiciary for a reason. It is supposed to act as a check on the legislative arm" Who says? Who says the seerate judiciary is a check on the legislative arm? the original doctrine of checks and balances mainly refers to congress and the executive. The voters are the ultimate check on Congress and the executive branch. Checks and balances are reciprocal. Congress pasts laws, the president can veto laws, and congress can overide. There is a back and forth between the branches. If the Judiciary is a check on the legislature, where is the balance and who checks the legislature?

Mr. HaLevi said...

Well, this is all very interesting, and I will once again offer a perspective from the craziness of Israel.

Zev, the idea that you would make no distinction between the legislature we have in the Israeli Supreme Court and the occassional activist in the American Supreme Court is rather silly.

You are unwilling to make distinctions between an activist judge and a judge who is trying to interpret the law. Now, your reason for this stated refusal is clever and has truth to it, but looking at a system as messed up as Israel's you can't but compare them. they are different. American judges, by and large, interpret, they don't write, the law.

I also think that the American system is very wise in the checks and balances it has in place. No one in israel seems to care or notice that judges are appointed by other judges and voted on by other judges. Well, what does this lead to, but of course a further and further radicalization of the court. (to the left in Israel's case). this makes it more and more out of touch with the citizens they are supposed to represent in interpreting issues of morality and ethics. When one thinks of the amazing amount of damage they (Israel High Court) have managed to cause, it is truly hard to believe.

The more I am away from America the more I love and respect the wisdom with which her government is structured. Shmuli's comment about how Schumer won't vote for someone who isn't mainstream is right on. SCHUMER isn't mainstream. So he can insist that his view of the world is 'central' and mainstream all he wants, it is out of touch with most americans views. And as a result, he is the minority in the legislature and doesn't have the ability to enforce his view on the court or the legislature, no matter how well he speaks or how much he tries to convince us that he represents what is moral.

the ability of minorities in Israel to control such important decisions is terrifying, the worst that can happen in America, is that a majority makes some stupid decisions, which may indeed be hapenning now in America, but as her history bears out, they are likely to reverse themselves over time.

Personally, to open a real pandora's box, I'd be thrilled to see Roe vs. Wade overturned, especially with the technology of ectogenesis expected to be viable within a decade.