We thought this week that it would be interesting to look at the United States Supreme Court and contrast with a quick review of the new United Kingdom Supreme Court which opens for business in October.
Colin Samuels has written the section on the United States. I plan to publish an overview of the UK Supreme Court shortly and I am doing two podcasts to supplement our coverage – first with Carl Gardner, author of the Head of Legal Blog and a former government lawyer and, second, with Lord Falconer, the former Lord Chancellor, who introduced the legislation to establish the new UK Supreme Court. The podcasts will be completed by Tuesday 28th July.
Lawcast 149: Carl Gardner on the new UK Supreme Court and the issue of Law Officer’s advice to the government
Today I am talking to Carl Gardner a former government lawyer and author of the Head of Legal blog about the new Supreme Court and the recent decision of Mr Justice Blake in HM Treasury v The Information Commissioner about the extent to which the law officers advice can be made public or discoverable under the freedom of Information Act.
Lawcast 152: Lord Falconer on assisted dying and the new Supreme Court of the United Kingdom
Today I am talking to Lord Falconer, a former Lord Chancellor, about two important and interesting themes – assisted dying and his amendment to the Suicide Act defeated in the Lords recently and secondly his thoughts on the reasoning behind establishing a new Supreme Court and the direct it may, in time, take.
Lord Falconer became Lord Chancellor In 2003, with the remit of abolishing the office. His reform included the creation, for the first time, of a Supreme Court for the UK, the creation of a commission to appoint judges, making a full-time independent judge the Head of the Judiciary for England and Wales, and introducing an elected Speaker for the House of Lords.
United States Supreme Court
The nomination of Judge Sonia Sotomayor to the United States Supreme Court and the recent hearings concerning that nomination have held the attention of the American legal community for a couple of months now. The stakes are certainly high enough, with a close split amongst the nine justices on many of the more important issues of the day. For all that rests on this nomination, however, there’s been a relative lack of drama in the nomination and the hearings before the Senate. There’s been such a lack of drama, with Judge Sotomayor’s confirmation all but guaranteed, that for the last few weeks my thoughts have turned instead to the confirmation spectacle itself.
The United States’ Constitution is an extraordinary — and extraordinarily vague — document. Although it establishes the Supreme Court, it doesn’t specify how many justices decide its cases; Article 3, Section 1 provides only that “The judicial power of the United States, shall be vested in one Supreme Court….” One of the first acts of the first Congress was to pass the Judiciary Act of 1789, setting the membership of the Supreme Court at six justices, including a Chief Justice. The current court composition was finalized at one Chief Justice and eight Associate Justices by the Judicial Act of 1869. A concerted attempt was made by President Franklin Roosevelt in 1937 to “pack the court” by increasing the number of justices to as many as fifteen, with the new justices nominated to ratify his New Deal policies. The introduction of Roosevelt’s legislation is suspected to have caused a shift in the Supreme Court’s vote on a key case, but the public’s perception of the unprecedented Executive action and its subsequent defeat in the Senate damaged Roosevelt’s political authority.
Although the Constitution provides for the nomination and confirmation process, it doesn’t mandate hearings in which Senators ask long-winded, largely pointless questions and nominees give vague, evasive non-answers. Pursuant to Article 2, Section 2, the president “by and with the advice and consent of the Senate, shall appoint… judges of the Supreme Court….” The Constitution describes ends, in other words, but is silent as to means. Prior to the Twentieth Century the hearings processes we are familiar with today, where a nominee testifies before the Senate Judiciary Committee in a carefully-scripted and controlled public performance, were uncommon. In 1925, President Calvin Coolidge’s nominee, Attorney General Harlan Stone requested to appear before the Senate to address political opposition to his nomination. Following World War II, hearings became an accepted part of the confirmation process, but even at that point a nominee’s performance before the Senate was not considered a prerequisite to confirmation. In 1949, President Harry Truman’s nominee, former Senator Sherman Minton, declined the Senate’s kind invitation to appear, writing, “I feel that personal participation by the nominee in the committee proceedings relating to his nomination presents a serious question of propriety, particularly when I might be required to express my views on highly controversial and litigious issues affecting the court.” Minton was confirmed nonetheless.
Now a Supreme Court confirmation occurring without at least cursory public hearings before the Senate or a nominee not present at such hearings would be astonishing. Indeed, nominees’ performances at these public hearings has taken on an outsized importance, overshadowing a nominee’s previous years of scholarship and jurisprudence and, more recently, precluding those with extraordinary academic or judicial backgrounds from being confirmed or nominated at all. It seems unlikely that this state of affairs was the intention of the Founding Fathers and, indeed, it’s a result of political developments over the past few decades.
In the late 1960s, the liberal Supreme Court under Chief Justice Earl Warren had diverged from the more conservative Senate and, some might argue, more mainstream elements of Congress and American society generally. Because Supreme Court justices enjoy a life term (except in instances of notable misconduct) and a “court packing” plan like Roosevelt’s would be politically untenable, the confirmation process assumed greater importance as a means of control over the Court and a forum for expressions of Senatorial disapproval of the Court’s activism.
The first real showdown of this new era concerned the proposed elevation of Warren Court Associate Justice Abe Fortas to Chief Justice upon Chief Justice Earl Warren’s retirement. Fortas, who had been a close — sometimes too close — friend, confidant, and advisor to President Lyndon Johnson before and during his tenure at the Court. Owing to the Senate’s anger over many of the Warren Court’s decisions and, to some extent, dissatisfaction with President Johnson, Fortas’ confirmation hearing became an intensely political affair and a clear departure from customary practices to that point. Although Associate Justice Thurgood Marshall’s confirmation had also been somewhat contentious, opposition to his nomination was principally regional, with Senators from Southern states opposing the first African-American nominee. Fortas’ confirmation hearings, on the other hand, were clearly a political brawl. Fortas’ views, including his belief in expansions of Presidential powers, and his conduct, such as his acceptance of a university honorarium which some believed was excessive and offered to improperly influence the justice, were scrutinized, as were his connections with the President and participation in the Warren Court. Ultimately, a filibuster was begun to block the confirmation vote; a cloture vote fell short of the supermajority required to end the filibuster and Fortas requested that his nomination be withdrawn by President Johnson.
President Ronald Reagan’s 1987 Supreme Court nominee, Judge Robert Bork, was the next notable nominee to become embroiled in a politicized confirmation process; the partisanship and severity of his hearings was so unprecedented that the verb “to bork” entered the English language to mean the political destruction of a nominee for public office. Bork was in many ways an exemplary nominee. He was a former Solicitor General, formerly the acting Attorney General during and in the months after the “Saturday Night Massacre” (in which President Richard Nixon fired Special Prosecutor Archibald Cox, who had been appointed to investigate the Watergate affair), a Federal Circuit Judge, and a noted antitrust legal scholar. Bork was particularly noted as a proponent of Constitutional Originalism and a critic of judicial activism. Anticipating Bork’s nomination, Senate Democrats and a broad spectrum of liberal social and political interest groups mobilized quickly to oppose him. Within the hour of Bork’s nomination, Senator Ted Kennedy issued an astonishingly personal condemnation of Judge Bork:
In the Watergate scandal of 1973, two distinguished Republicans — Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus — put integrity and the Constitution ahead of loyalty to a corrupt President. They refused to do Richard Nixon’s dirty work, and they refused to obey his order to fire Special Prosecutor Archibald Cox. The deed devolved on Solicitor General Robert Bork, who executed the unconscionable assignment that has become one of the darkest chapters for the rule of law in American history.
That act — later ruled illegal by a Federal court — is sufficient, by itself, to disqualify Mr. Bork from this new position to which he has been nominated. The man who fired Archibald Cox does not deserve to sit on the Supreme Court of the United States.
Mr. Bork should also be rejected by the Senate because he stands for an extremist view of the Constitution and the role of the Supreme Court that would have placed him outside the mainstream of American constitutional jurisprudence in the 1960s, let alone the 1980s. He opposed the Public Accommodations Civil Rights Act of 1964. He opposed the one-man one-vote decision of the Supreme Court the same year. He has said that the First Amendment applies only to political speech, not literature or works of art or scientific expression.
Under the twin pressures of academic rejection and the prospect of Senate rejection, Mr. Bork subsequently retracted the most neanderthal of these views on civil rights and the first amendment. But his mind-set is no less ominous today.
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be. The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our President. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice.
Senator Kennedy’s televised speech set the tone for a particularly brutal confirmation battle in which such minutiae as Bork’s video rental records were widely publicized.
In many ways, the strength of the opposition to the nomination took the Reagan Administration and Senate Republicans unawares and they failed to respond promptly or effectively to bolster Bork’s narrowing chances at confirmation. For his part, Judge Bork did not make much of an effort to “water down” his lengthy record or to try to put the Senate or the public at greater ease with his nomination. His demeanor was at times angry and defensive and he was bluntly critical of some legal decisions, such as the Roe v. Wade decision, which enjoy solid popular support. Correctly sensing that the nomination was failing, the “Great Communicator” President Reagan spoke at length about his own Constitutional thinking, much of which he believed was shared by Judge Bork:
During the hearings, one of Judge Bork’s critics said that among the functions of the Court was reinterpreting the Constitution so that it would not remain, in his words, “frozen into ancient error because it is so hard to amend.” Well, that to my mind is the issue, plain and simple. Too many theorists believe that the courts should save the country from the Constitution. Well, I believe it’s time to save the Constitution from them. The principal errors in recent years have had nothing to do with the intent of the framers who finished their work 200 years ago last month. They’ve had to do with those who have looked upon the courts as their own special province to impose by judicial fiat what they could not accomplish at the polls.
So, my agenda is your agenda, and it’s quite simple: to appoint judges like Judge Bork who don’t confuse the criminals with the victims; judges who don’t invent new or fanciful constitutional rights for those criminals; judges who believe the courts should interpret the law, not make it; judges, in short, who understand the principle of judicial restraint. That starts with the Supreme Court. It takes leadership from the Supreme Court to help shape the attitudes of the courts in our land and to make sure that principles of law are based on the Constitution. That is the standard to judge those who seek to serve on the courts: qualifications, not distortions; judicial temperament, not campaign disinformation.
Despite President Reagan’s extraordinary public support for his nominee, the Senate voted to reject the nomination. Judge Bork was so disgusted by the process and the treatment he had suffered that he resigned his judgeship the following year.
The “borking” of Judge Bork began a tendency to nominate individuals who were less legal scholars than legal ciphers, less distinguished judges than judges with short records comprised mainly of votes without written opinions. This dismaying trend culminated in President George W. Bush’s 2005 nomination of White House Counsel Harriet Miers. President Bush had sought to avoid the “errors” committed by President Reagan — nominating a conservative with an extensive and controversial record — and by his father, President George H. W. Bush — nominating a “conservative”, Justice Davis Souter, who lacked an extensive and controversial record, but who was such a cipher to the President that he turned out not to be a conservative at all. In nominating Miers, he chose someone whom he had known for a decade-and-a-half, someone who shared his religious and social beliefs, and someone who had proven herself to be a reliable if unremarkable attorney. She was so unremarkable, however, that her nomination immediately drew fire from both liberals and conservatives. Her lack of either state or Federal judicial experience at any level, her lack of a meaningful record on any of the key legal issues likely to come before the Court, and her close personal ties to the increasingly-unpopular President Bush jeopardized her chances of confirmation from the outset. Early meetings she had with Senators and advisors demonstrated her lack of preparedness for a position on the high court or even for the confirmation hearings. After less than a month, Miers asked that her nomination be withdrawn, citing as her reason a request made by Senate allies to provide political cover for the withdrawal.
After this, certain lessons had been learned about the process of Presidential nomination and Senate advice and consent sketched by Article 2, Section 2: First, a nominee’s background should tick the right boxes — prominent law school, perhaps a clerkship at a Circuit court or even the Supreme Court, practical experience with a notable law firm, tenure as a judge, preferably at the Federal Circuit level, and a lack of personal scandal. Second, the nominee must be recognized as a top attorney and a legal authority, but one whose public and published statements are surprisingly noncontroversial and vague. Third, the nominee’s jurisprudence must be shown with participation in important cases, ideally on the “right” side of the decision. Fourth, the nominee must have published a few well-written opinions, articles, or treatises which, to the extent these are outside the mainstream, are not so far out and are at least internally consistent and supported by a broad swath of the legal community. Fifth, and perhaps most important, the nominee must be able to weather the confirmation process by learning his or her script, maintaining his or her composure, and never offering anything approaching an elaboration on what’s already on the record or suggesting any semblance of a judicial philosophy, unless unswerving fealty to the letter of the Constitution (whatever this means) counts as a judicial philosophy. The corollary — call it the Souter Corollary — is that while a nominee can be essentially a mystery to everyone else, the President must know that nominee’s mind to a virtual certainty.
Judge John Roberts‘ nomination represented a refined, if not perfected, understanding of these lessons. On paper, Roberts seemed almost too good to be true and in his opening statement he said all the right things:
My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.
Roberts’ metaphor about “umpires calling balls and strikes” (or for my friends in the U.K., umpires calling cricket stuff I don’t comprehend) has become the definition of what the public and the Senate expect a Supreme Court justice to be. SCOTUSblog recently counted more than two dozen Senatorial references to “umpires” and/or “balls and strikes” in the recent Sotomayor hearings.
Just as President Bush managed to learn the necessary nomination lessons, President Barack Obama demonstrated his understanding with his nomination of Judge Sotomayor. Supreme Court litigator Tom Goldstein announced soon after the nomination that any doubt about Sotomayor’s confirmation chances was gone:
Basically before it ever started, the fight over the confirmation of Sonia Sotomayor is done. She is going to be confirmed by a relatively wide margin and without a substantial, mainstream assault on her credentials or suitability for the bench.
The phase of defining a nominee in the public’s eye now lasts around forty-eight hours. In that time Harriet Miers was pretty much done — finished. By this point, there has been a huge amount of press coverage and opponents have had the opportunity to make their case. It’s a shockingly short period (unfortunately so), but it reflects (a) the ready availability of research materials, and (b) the rapid turn-over of news cycles.
For a nominee like Sonia Sotomayor, that is the life-or-death period. Once the public is comfortable with her suitability, then the irreducible political reality is that there is no serious prospect of vigorously challenging the nation’s first Latina Supreme Court nominee when the President’s party has an overwhelming numerical advantage in the Senate.
[F]or Sonia Sotomayor, it is all over but the swearing in.
If Goldstein is correct and the properly-managed nomination assures confirmation within days (and long before the confirmation vote), what is the point of this process? Goldstein suggests that the process is not so much a check on the Judiciary, as it was with Fortas in the 1960s, but on the Executive:
[T]he confirmation hearings are an opportunity for the Administration — if it can seize the offensive — to use a popular nominee to further define the President. Though the general public does not care much about the Court, the perception of a nominee in a high-profile nomination process does translate to some extent onto the President that made the appointment. If she is regarded as a radical liberal, for example, that will say a good deal about the President who picked her.
Professor Jack Balkin has written that the hearings are valuable in communicating popular values and opinion to the Judiciary:
The short answer is that the hearings are often more about the Senate–as representatives of various strands of public opinion–than the candidate. They are opportunities for Senators to make claims about what they believe are the mainstream understandings of the U.S. Constitution. The candidate cannot say what he or she thinks the law should be, or how they would decide particular cases, but the Senators can and do make claims along these lines. In the process, they create what I have previously called the”constitutional catechism”: the set of assumptions, beliefs, and positions that every candidate who claims to be in the mainstream of American constitutional thought must share. (For example, Griswold v. Connecticut, which protected the right to purchase contraceptives, was rightly decided; Brown v. Board of Education was rightly decided; and sex equality is required by the Constitution.) A candidate who cannot bring himself to agree with the catechism (as Robert Bork famously could not) will be in trouble, but most candidates find ways to hedge and talk around the subject artfully. (In this task John Roberts was a master).
But what the candidates actually say is far less important than what the Senators expect them to agree with. By shaping the constitutional catechism at hearings, the Senate gives an account of what Americans expect from their Supreme Court Justices.
Erwin Chemerinsky, the new Dean of the University of California-Irvine School of Law, is somewhat less sanguine about the diminished meaning of the confirmation process:
As with the Roberts and Alito hearings, it is not clear what all of this accomplished. It reinforced a misleading image of law for those who were listening. Obviously, judges make as well as apply the law; everything the Supreme Court does makes the law.
Ultimately, the hearings let Senators have some time to appeal to their political base. It let the American people, or at least those who paid attention to the hearings, see the person who will be on the Court for the next few decades. Perhaps that is enough or perhaps it is time to again think about how to make the confirmation hearings more meaningful.
It all boils down to this: politics being what they are, this cornerstone of the American judicial system will remain, for the foreseeable future, the most predictably dull spectacle on television unless Paris Hilton’s reality series is renewed. I may not agree with everything — or much of anything — Dean Chemerinsky says, but on this issue I tend to agree that the framers of the Constitution envisioned and the American people deserve something more meaningful.