Alito, Conservatism, and the Judiciary

A bunch of good stuff floating around the blogosphere today regarding all of the above topics in all sorts of interesting combinations. Starting with Mark Olsen, who wants a "thoughtful liberal" opposition to Alito. To be honest, I'm not the ideal fit for this job, because I take the apparently unique position of not wanting to decide on Alito before actually witnessing the hearings. You know, actually hear what he has to say? However, I will say that there at least conceivable grounds for opposing Alito--at this early stage, who knows if they'll be borne out, but that at least have to be examined. Anyway, Mark thinks that the torrent of liberal opposition is purely ideological, and puts forth the following:

-Do they imagine that they might never see a future opportunity in which a party they support holds the Presidency but perhaps not a plurality in the Senate? Would they then encourage the opposition party to only approve of nominees which passes the oppositions ideological inspection?

-What perchance does "advise and consent" mean to them anyhow? Hamilton in Federalist #76 argues against politicizing the nomination process. If they cited that and the reasons why he's wrong that would be icing on the cake.

I've already made my response to the latter (Fed. 76) claim. To reprise it briefly, Hamilton came at the issue as a noted democracy-skeptic and a proponent of extreme executive power. This view may have its merits, but it really isn't our system, which is premised off of free-wheeling debate and deliberation. I'd rather the debate be more rational than it is, but I'm not willing to eliminate democratic checks just because the Senate isn't as cordial as we might like. For the full argument, see the link above.

The former position is interesting. My preference on the matter would be that President's nominate more moderate justices (especially for judges vacating swing seats). If that's the end result of this endeavor, then I'll be delighted--and to be honest, I think it is a plausible outcome. If President's learn that the minority party will fight tooth and nail against extreme judges, then maybe they'll stop nominating them. On the other hand, maybe it will cause a nuclear war between the parties.

I would further claim that saying the opposition is "ideological" is far too simplistic. Judges, for the most part, have judicial philosophies. Assuming we accept that there are several valid interpretative philosophies, the choice of any one of these philosophies is ideological. It's ideological for presidents to pick them on that ground, and it's ideological for senators to oppose them on that ground. We don't like to admit it, but the Supreme Court is an ideological institution--this is an inescapable trait of any judgmental body. If ideology is unavoidable, then balance becomes key so the courts don't become overweighted toward one side of the political spectrum. Again, as for me, I'd like a balance of forces. Say, a Crit, an Originalist, an "Active Liberty"-type, a Textualist, a Minimalist, a Democrat (not in terms of party, but in terms of deferring to democratic institutions), and three Pragmatists. But that not being the case, it is fair I think to decide that certain judges apply their interpretative philosophies in too extreme a manner. And the question is, does Alito fit into that category?

That brings me to interesting link #2. Publius of Legal Fiction articulates three ways a judge can be "too conservative."

In the legal context, I believe that a nominee can be "too conservative" in at least three different senses: (1) she subscribes to the king-in-wartime theory; (2) she's a bible thumper; or (3) she's hostile to the New Deal (which includes opposition to the administrative state and federal health/environmental/discrimination statutes). What's interesting is that these positions are, logically speaking, in tension with each other. For instance, #1 and #3 don't fit that well under the same conceptual tent. And #2 doesn't necessarily have a logical relation with either.

As far as which one is the worst, that's a tough call. I have a more visceral reaction to #2, but those conservatives are probably the least harmful given the politics of America (which are still, relatively speaking, secular). I think that #3 is the worst from a consequentialist point of view. While allowing or removing "under God" in a classroom doesn't really matter in the grand scheme of things, striking down the EPA or Social Security does. The #3 conservatives have the most potential to really screw up the country - and the global economy for that matter. But of them all, #1 is the most morally abhorrent, even if the consequences are more limited. Despite Herr Yoo's clever theories, the king-in-wartime theory contradicts the entire history and structure of Western law - not to mention every major religion as well. In fact, the history of Western law and legal thought has been rooted in the effort to restrain the executive peacefully.

So, when you hear that someone is "too conservative," the key question is determining what year that person wants to send America back to. For the #3 conservatives, it's 1932. For the #2 conservatives, it's pre-Enlightenment. For the #1 conservatives, it's pre-Magna Carta. So take your pick - 1932, 1600, or 1214.

I think that "building a bridge back to the 13th century" would qualify as a legitimate reason to oppose a nominee. Again, this isn't to say that Alito is a #1 conservative. But if he was, I think that legitimate opposition could be more than "ideological."

Moving on, over at VC the originalists are murmuring that Antonin Scalia has betrayed originalism. David Bernstein argues specifically that:

I expect that Scalia's problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible...But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of "faintheartedness."

...[B]egging off from the tough issues...just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism...

Kevin Drum argues that this may be accurate but is effectively meaningless:

This ["originalism" as cover for the Culture War] strikes me as a remarkably honest assessment of what originalism is really about for most of its supporters, but unfortunately Bernstein doesn't follow it up. Instead, he talks about whether or not genuine originalists should overturn New Deal opinions from the 40s, which strikes me as sort of like arguing over whether or not Superman could kick Green Lantern's butt: harmless, to be sure, but hardly part of the real world. If Federalist Society members are convinced that even Antonin Scalia is too liberal for their taste, and what's really needed is someone who will vote to repeal the Social Security Act, they're just fantasizing, not discussing real-life issues. What's the point?

One could argue then that Scalia is just a bad judge--brilliant, to be sure, but not sufficiently wedded to his proclaimed interpretive theory to keep his politics out of it. Judges having ideologies, as I noted above, is unavoidable. However, judges as politically partisan is a legitimate redline, I think, and this is another thing that has to be questioned with Alito. Or to be more fundamental, it may well be that Alito just isn't a very good judge (not to be redundant, but again I'm not making this claim. I'm just noting that this is a possibility that has to be examined).

For example, Eric Muller (who used to work with Alito when he was a New Jersey Prosecutor) says that Alito may have been too quick to disregard precedent while on the 3rd circuit. And while Republicans defend Alito's controversial Casey paternal notification laws by saying that it passes no judgment on the law as policy, his opinion is also suspect as a matter of law. Over at Amptoons, it is noted that the common phrase "spousal notification" is a misnomer, as without gay marriage it is always the wife notifying the husband. Seeing as this is the case, the question is whether or not this sexed burden is equally imposed on men in analogous situations. Garance Franke-Ruta provides excellent evidence showing that it isn't (credit to Kevin Drum for putting the pieces together):

The physical intimacy of marriage and other sexual relationships creates a fair number of situations in which each partner has a decided emotional and/or physical stake in what's going on with the other, and in which it could be argued (though not necessarily affirmed from a constitutional perspective) that the state has a legitimate interest to intervene on behalf of one partner or the other. The most obvious example in recent decades is the case of HIV infection.

And so it is worth noting that at the same time the state of Pennsylvania was arguing that the state had a legitimate interest in compelling a woman to inform her husband before she obtained an abortion, the state declined to make the conceptually similar demand that an HIV-infected man inform his wife that he carried a potentially deadly infectious disease that could be sexually transmitted.

Seeing as this is the case, the argument that these laws are illegitimate infringements on a woman's liberty becomes much stronger.

Finally, I'd just like to point to the just-released 9th Circuit ruling in Fields v. Palmdale School District. I originally was pointed to the opinion by an aghast email from one of James Dobson's flacks. First of all, it's a Stephen Reinhardt opinion. For those of you who don't know, Reinhardt may be the most reviled appellate court judge by the right today (he wrote the Pledge case opinion). And I can't help but think that the throwaway reference to Stephen Breyer's new book, "Active Liberty," was consciously (or at least knowingly) designed to annoy conservatives. But what was interesting about the case was that not only did it give lie to, well, pretty much everything the right ever has said about its judicial principles, but that Judge Reinhardt seemed to deliberately set out to expose their hypocrisy in the text of his ruling. I should also note that I was ambivalent about the proper resolution of this case until I read the opinion, it's very persuasive.

The bare-bones facts were that the school district was doing a survey meant to expose possible early-childhood trauma in its students. So it sent a consent form for parent's to sign, and then surveyed their 1st, 3rd, and 5th graders on a variety of questions, some which included sexual topics. When the parent's found out, they sued under (of all things for supposed conservatives) the right to privacy, which in this case included a supposed right to control what their children hear about sex.

The Court rather easily dismissed the claim. It pointed out that the school district had a valid reason to conduct the study, so it satisfied a rational basis test. Furthermore, it noted that no court in any jurisdiction had upheld a parental veto over the school curriculum. This included sex education classes. As Judge Reinhardt pointed out, the government cannot stop parent's from sending their children to private schools more aligned with their value system. But, once they've made the choice to enroll their children in public schools, they can't then claim an imposition in the specific topics taught inside the classroom. Their complaints, if valid, should be addressed to the school board, a democratically elected body (which indeed cancelled the program in 2002 after parental protests). Parents can, of course, teach their children whatever they want and however they want. But the acknowledgment of that right does not translate into a blanket right to shield them from any contrasting information.

What was most entertaining was how Reinhardt worked in the "judicial restraint" point, the same one Republicans claim as a trump when discussing cases like Casey: "[W]e reiterate that we express no view on the wisdom of posing some of the particular questions asked or of conducting an inquiry into some of
the particular areas surveyed by the School District. That determination is properly left to the school authorities."

Deferral to democratic decision-making bodies? Check. Not wildly extending the "right to privacy" (something conservatives purport to despise anyway)? Check. In accordance with past precedent and the views of other circuits? Check. Basically, the case met every threshold requirement for conservative support but one: it didn't give the conservatives a political victory. And thus, it is tarred "activist."