Preserving Courts in Angry Times

It gives me great pleasure to introduce Benjamin Wittes. He's a graduate of Oberlin College who's been an editorial writer at the Washington Post since 1997, specializing in legal affairs. He is also a contributing editor for the Atlantic Monthly. Before joining the editorial page staff of the Post, he covered the Justice Department and federal regulatory agencies as a reporter and news editor at the Legal Times. His writing has also appeared in many national journals and magazines, including Slate, The New Republic, The Weekly Standard, and Policy Review, Hoover's own. Ben is the author of two books, one titled Star: a Reassessment, which was published in 2002. And the just-released book titled, Confirmation Wars: Preserving Independent Courts in Angry Times. Which was published by Roman and Littlefield and the Hoover Institution, jointly, as part of the Hoover Studies Series. A copy of this book is in your bag that you hopefully received this morning. At a presentation at the University of South Carolina Law School ten days ago, US Supreme Court Chief-- I'm sorry, US Supreme Court Chief Justice, John Roberts, cited Ben's new book, noting that it offers an excellent history of the judicial confirmation process. Roberts also said that hearings have become more of a forum for senators to state their views than for them to gain an understanding of the nominee's judicial philosophy, and he agreed with Ben's thesis that at the very least, the Senate should ask themselves, "What is being accomplished in the hearings?" and whether some reform of the process would make sense. So Ben will talk to us more about that this morning with the release of his new book. So please join me in giving a warm welcome to Ben Wittes. Thanks very much for that kind introduction. Thanks as well to Hoover for, first of all, for publishing the book. And secondly, for the really wonderful forum it's provided in a number of areas over the last few years for my work. Not just on judicial nominations but also on matters related to the War on Terror and a lot of other legal issues. It's really done a remarkable job in creating non-ideological fora for serious discussions. I'd like to start, if I could, by taking you back to the nomination of a prior Chief Justice of the United States. One Harlan Fiske Stone, who Franklin Roosevelt elevated to the Chief Justice on the eve of World War II, in 1941. Stone's nomination-- Stone had been sitting as a Justice for a number of years prior to his elevation, and his accession to the Chief Justice-ship marked a remarkable contrast with what we recently saw with Chief Justice Roberts and Sam Alito. The entirety of the Judiciary Committee's proceedings occupies a page and a half of transcript. And it reads more or less as follows-- I don't have it in front of me, but the Chairman of the sub-committee calls the hearing to order, and he says, "Does anybody wish to speak against the nominee?" None being heard, the nominee will be reported to the full senate, and that is the end of the hearing. On the Senate floor, exactly one senator spoke on the subject of the nomination, this was a progressive Republican named George W. Norris, who had the distinction of being the last of the small group of senators who had opposed Stone's nomination, and he had been elevated to the Supreme Court in the first place in 1925. And he spoke as follows: "When Mr. Stone was appointed in the Justice of the United States Supreme Court many years ago, I opposed the confirmation of his nomination and voted against him. In the years that have passed I became convinced, and am now convinced, that in my opposition to the confirmation of his nomination, I was entirely in error. I am now about to perform one of the most pleasant duties that has ever come to me in my official life, when I cast a vote in favor of his elevation to the highest judicial office in our land. I do this because while it may not effect the country, or the senate, or even Mr. Justice Stone, it is a great satisfaction to me to rectify, in a very small degree perhaps, the wrong which I did him many years ago." And with that, Justice Stone was voted on and was confirmed by the Senate and became Chief Justice of the United States. Now, Justice Stone was not a milk-toast figure who was, you know, above any controversy. He had only a few years prior to this event written what is perhaps the most celebrated and controversial footnote in the history of the Supreme Court in a case called Carolene Products, which really revolutionized the court's approach to economic rights, yet no conservative senator opposed him. Similarly, he was himself a Republican elevated by a Democratic President, he had been the Attorney General in the Coolidge administration, and yet no liberal senator opposed him on partisan grounds. The only contemporary analogy that I can think for this would be if a future President Hillary Clinton were to nominate John Ashcroft for the Supreme Court, and that this would be greeted warmly, as obviously the right thing to do, by both, say Senator John Kyle and Senator Chuck Schumer. It's quite-- it's actually quite unimaginable today, and it's not that long ago. It stands to me as a very picturesque example of how much has changed. The purpose of my book was to describe a little bit the magnitude of the change, to try to account for the reasons for it, a little bit. And also to ask the question which people often pass over, whether that change is a good thing or a bad thing. Broadly speaking, contemporary political debate offers four schools of thoughts on these subjects. The first is not terribly common in most public debate, but very common in academia, is simply to deny that there has been a change at all, or if one accepts that there's a change, to deny that the change poses any real problems. The broad strokes, it's well, President's behave politically, they appoint judges who they except to agree with, and the Senate opposes them or supports them on that basis at all. In other words, the judicial nominations process is political because the judicial function itself is in a very profound sense political. Then there's the sort of conservative, conventional approach to these questions, which is, Well the process decayed as liberals insisted on activist judges who would implement their policy preferences. And rebelled against conservative nominees who wouldn't do that. Then there's the liberal mythology, which is, Everything was fine until Republicans and conservatives started trying to pack the courts with right-wing ideologues and we had to oppose them to preserve everything we hold dear. And then there's a kind of gentler, more politically neutral version, which is, you might call the Jeremiah school, it kind of puts a pox on everybody's house and notes how much has changed and how ugly it's gotten and just kind of bewails it, and of portions blames more or less evenly between the two. In my judgment, all four of these schools have significant elements of truth to them. And all also ultimately fail to account for the totality of the situation, and for exactly how different we are when we confront Chief Justice Roberts nomination from where we were when we confronted Stone's, and also why we got there. For starters, it seems to me and this example is a pointed, poignant one of course the process changed. It now takes dramatically longer to confirm judges than it did only relatively recently, even as late as the mid-1980s. The fights over Supreme Court nominees are much more consistent than they used to be. They are in general much more bitter. And we either face, whenever a nominee comes up, we either face a real political battle over the nominee, or everybody kind of breathes a sigh of relief that it didn't happen, as happened with Justice Briar and Justice Ginesberg. And most importantly, from how I look at this, these battles, which had once been reserved for Supreme Court nominees, have now been exported down to circuit court nominations. So I think what now you could say is, we fight harder, more often, over more different judge-ships than we used to. And in brief answer to all those political scientists who see all of this as a good thing, I think that bespeaks a lack of intimacy with the process, frankly, it seems to be obvious that the change is for the worse. I have a unique viewpoint on the judicial nominations process because I generally write the Post's editorials on them. There's a common myth that judicial nominees don't talk to the press. They often do, quietly. And so I have a sort of an unusual vantage-point on this, which is that I talk regularly to people in the judiciary, in the senate, and in the administration, as well as to the nominees themselves. It is a wrenching process that is, for people who have kind of never regarded themselves as controversial figures, or particularly political figures, to suddenly find themselves in, and as a consequence of it, there are many fine people of both political parties who are not on the bench, and who would not ever subject themselves to the possi-- both people who have been nominated and not been confirmed, including you know the current dean of the Harvard Law School. And people who would never under any circumstances subject themselves to the process. More subtly, among those who do get confirmed, the process finds a way to put a great deal of pressure on them to promise and deliver particular political results, particularly on controversial social issues that is in real tension, that pressure, with what we expect them to do, which is to go and act apolitically in a judicial capacity. But it's also critical to diagnose that change properly. It is not, as many conservatives will contend, a function of the injection of ideology into a process that was previously kept pristine from it. There was no golden age of merit selection of judges, in which politics didn't enter into it and there was no period in which the Senate did not consult what they expected a nominee to do before they voted on him. Ideological consideration of judges goes back to the George Washington administration, and Robert Bork was not the first nominee to be Borked. So it's obvious the process has changed and changed for the worse. It is also not, as many liberals would have it, simply a function of conservative court-packing. Court-packing, first of all, it has an undeserved jarrative sound to it. All Presidents try to put people on the courts whom they expect to agree with. There's nothing wrong with it. And there's nothing terribly novel about the idea that President Bush, or President Bush before him, or President Reagan would try to put exactly the sort of people on courts that they had promised in campaigns to put on courts. I believe that if you actually look at the history of the nominations process, the explanation is both more subtle and more interesting than the partisans on either side of the debate will contend. That is, while Democrats like to wax indignant about the treatment of President Clinton's nominees, and Republicans like to wax indignant about the treatment of President Bush's nominees, the reality is that the process has deteriorated over the last fifty years, but really accelerated over the last twenty years. Irrespective of which party controls the White House, and irrespective of which party controls the Senate. And that's exactly what you would not expect to see if one side were wearing the White Hats and one side were wearing the Black hats. There's something deeper and sort of more tectonic in what's going on here. I propose in the book that we should understand this not as a partisan reaction, but as an institutional reaction on the part of the Senate, to the sustained assertions and growth of judicial power in the years since Brown v. Board of Ed in 1954, and particularly accelerating through the criminal procedure revolution of the Warren court and accelerating even now as more and more contested issues of rights end up before the courts. The fascinating thing as you go back through the history of nominations is how clear 1954 is as a demarcator of major change. Prior to 1954, only four nominees to the Supreme Court had ever testified before the Senate Judiciary. The Judiciary Committee would consider the nominations, would hold hearings, and would take testimony about the nominees, but the nominee himself, invariably himself, kept a discreet distance. Did not testify, and generally did not communicate with the committee. There are four exceptions where the nominee did actually testify, however they're all anomalous. The nominee didn't go up to testify about his judicial philosophy, he went up to testify about, in two cases, conduct as a sitting official. In one case, just it was kind of a friendly chat, it was so insignificant they didn't even transcribe it. There are handwritten minutes of it that remain. And in a fourth case, Justice Frankfurter, there was a great fear on the part of some of the members of the committee that he was actually a communist, and they called him up to satisfy themselves, not as to how he would handle any particular category of cases, but rather to satisfy themselves that he believed in the Constitution at all. And he swore that he did, and that was the end of the hearing. With Brown, in 1954, all of that changes. The year before the year of Brown, Earl Warren is confirmed to the court without ever hearing, without any discussion of philosophy in the judiciary committee at all. The following year, with the remedies portion of Brown still pending, the President nominated John Marshall Harlan II, who of course, became ironically the great conservative of the Warren court. But the segregationist senators were so mortified and shocked by Brown that they demanded that Harlan appear in person before the committee and answer questions. And they grilled him about his judicial philosophy, about how he would approach cases. This is a dramatic change from everything that had come before it. Harlan was horrified by it, as he expressed it letters to the sitting justices, and interestingly, liberal commentators found it an intolerable breach in the separation of powers. So the New York Times, for example, editorialized as follows. "If this line of questioning were to be followed further, any candidate for the Federal Judiciary would have to satisfy the majority of the Senate Judiciary Committee that he was in line with that majority's view." It went on to warn, "The danger of the particular kind of nonsense that has been going on in the Senate Judiciary Committee's hearings is that the separation of powers between the legislative and judicial functions may be broken down." Now liberals continued to be appalled and the segregationists continued to insist on grilling nominees for the next fifteen years. Until the election of Richard Nixon, at which point, liberals switched sides, and the record on this is very interesting. This was done quite self-consciously. That having-- the segregationists had managed sufficiently to normalize this idea that you can ask a would-be justice how they think about law, what they're going to do when they get there, how they're going to behave. By 1969, when Nixon nominated Clement Hainsworth, a nomination that ultimately failed for other reasons, the same liberal senators who had objected to similar questioning, some of it quite brutal, of Thurgood Marshall, or of Potter Stewart, turned around and began to ask similar questions themselves. Although, it should be noted, without any of the similar brutality as was visited particularly on Marshall. So this was done, as I say, quite self- consciously, they were aware that they were changing their position, and this was brought out very movingly, I think, in an exchange between Hainsworth and Senator Peter Hart, who began asking him questions, and Senator Sam Irvin, the North Carolina segregationist senator who later kind of won a measure of liberal admiration for his management of the Watergate hearings. Irvin broke in and said sort of pompously, "I'm glad at long last the Senator from Michigan agrees with me, that a senator has the right to ascertain the view of a nominee for the Supreme Court. I'm glad to have a convert to my philosophy." And Hart responded, I think quite movingly really, that he was quote, "Trying to figure out a device that would enable me not to backtrack on the position I have taken earlier and nonetheless find out if we were asked to consent to the nomination of a man who thought that the direction of the Supreme Court under Earl Warren should be reversed or modified." And in delivering himself of that speech, he was interrupted by the nominee, Hainsworth, I think rather sagely, that that's quite difficult to do. Now, what had changed of course, is that by 1969, liberals had a lot to protect in the court. The court had by then delivered itself of Miranda, it had delivered itself of Griswold, it was on the point of a major intervention in the administration of the death penalty, and it was only a few years from Roe v. Wade. And they felt very differently about it than they had fifteen years earlier. And so we arrived at our current situation, in which both sides reserve the right to grill a nominee and explicitly to condition their votes on the answers that they get. That's a very important component of the current morass. And at the same time, to wax indignant when the other side does exactly the same thing. So, just to cite an ongoing example right now, Senator Brownback, of Kansas, is currently holding up a district court nomination to a district court judgeship in Michigan because she attended a same-sex commitment ceremony in Massachusetts some years ago and refuses to tell him how she regards the legality of same-sex marriage. On the other hand-- so that-- at the same time, many judiciary committee Republicans wax offended at the insistence of judiciary committee Democrats that John Roberts and Sam Alito answer questions as to what they will do on the Supreme Court, and I use that example not to dwell on the Republican hypocrisy, because there are a thousand examples in the other direction too. It's simply an agreement on the part of both parties to have a stunning degree of mutual hypocrisy be the norm of the entire discussion. The results are very ugly. Particularly, actually, in lower court nominations, where the media spotlight is much diminished. Consider two very brief examples, Miguel Estrada, who was nominated to the DC circuit and ultimately defeated by filibuster, was asked repeatedly at his hearing to answer allegations published in The Nation magazine, to which nobody was willing to put their name. These were anonymous allegations of a level of vagueness that it was quite impossible to address, and yet nobody was willing to come forward and testify as to the accuracy of those allegations. By contrast, a ninth circuit judge out here, during the Clinton administration, Willie Fletcher, was held up for many years, ultimately confirmed, held up for four or five years by the demand that his mother, who was also a judge on the court, resign as a condition of his confirmation. That's the most explicitly extortionate thing I've seen in this context. But yet you can ask, is it all a problem? You know, is it-- judges still get confirmed. They still get confirmed by and large without compromising themselves. Senators demand accommodations, they demand concessions, and judges by and large don't give them. It's very ugly, it's not pretty, but democracy isn't pretty. And so you can say well what's the problem here, really? And I think that's actually the hardest question. And the real answer, in my view, is that The New York Times had it right back in 1954. Or 1955. That there is, embedded in all this, a real separation-of-powers anxiety, and a real threat to judicial independence. Very briefly, I think the threat is twofold. The first is that the nature of the confirmation questions puts nominees in an impossibly position. Their confirmations are conditioned on questions that they cannot answer. Now, there's always this debate, well can they answer the question or can they not answer the question. Suffice it to say that nominees of both parties regard themselves as ethically barred from answering the question. And for reasons that I can go into in questions, if you're interested, I think they're right, I think they genuinely can't responsibly answer these questions. So as you have more and more-- as the partisan division over the nominations becomes more and more accentuated, it becomes clearer and clearer that the Times was right, to get confirmed now, you have to assure a majority of the judiciary committee that you're in line with their views. With the filibuster, if the filibuster ever really catches on as a routine tool, you will have to convince a substantial portion of the minority of the senate that you're in line with their views in order to get confirmed. Now that puts you as a nominee in a very difficult position. You can't say the things that you have to say in order to get confirmed, and if you say them and then you act independently later and go a different direction, you are under oath. Most people actually take that pretty seriously. It's a very delicate and unfortunate position to put people in who you then want to go on and behave as independent judges. The second dimension is a little bit more speculative. Which is that the actual protections for judicial independence in the Constitution are much sparer than we think they are. And what has grown up around them what we think of as judicial independence, American style is actually those protections plus a number of norms. There are four norms that have really traditionally been a part of our vision of judicial independence. One is that Congress doesn't condition the judiciary's budget on specific outcomes from the courts. Now, it could. But it doesn't. And there's a very strong norm against doing that. The second is that Congress, by and large, doesn't engage in issue-based court stripping. That is to say, we don't like what you decided about abortion, therefore you don't get to decide abortion cases anymore. It's a big open constitutional question whether they can do that, and historically, they don't. We tolerate-- Congress doesn't try to frustrate judicial review. The third is that we don't impeach judges whom we disagree with. And the fourth is a certain modesty in the confirmation process. I would venture the proposition that the fourth is now gone. There is nothing that we don't do in the confirmation process as a matter of norm anymore. It's governed entirely by power. Anything you can get away with, you do. And I think we have to ask the question I don't know what the answer to the question is, and I don't want to overstate it. But I think we have to ask the question whether the collapse of that norm could precipitate a collapse of some of these other norms, and whether we could really be facing a much greater and bolder confrontation between the legislative and judicial branches. We have seen under Chairman Sensenbrenner in the House judiciary committee, a great deal more willingness than is historically the norm to investigate judges whose decisions he disagrees with. So I'm concerned on that point. There has been a more active interest in Congress in court-stripping in general that has been true historically. And you hear talk, particularly in the right, about impeachment. I don't know where any of that is going, but I do think we have to worry about what has happened with one leg of that table and what it means for the other legs. Can the genie be put back in the bottle? No, I don't think it can. I don't think that if what we mean is a return to the days of, you know, Harlan Fiske Stone, I think that is just an age gone by, and the fact that it's an amusing anecdote to begin a talk like this shows how far we've come from there. I do think there are three things that we can do that would ameliorate the current process a lot. The first is, they're all geared toward the same idea, which is that this confrontation should be a confrontation between the executive branch, which wants to appoint judges, and the legislative branch, which wants to assay ideologically who they're going to be. And so all three of these proposals are designed to focus that battle a little bit more squarely on that confrontation and try to remove the judiciary a little bit from it. The first is that we need to accept that ideological considerations are a) historically a part of the process, and b) not an illegitimate one. And that is, you know, when President appoints John Roberts, we should understand that's he's appointing somebody he expects to agree with, and we should understand that it's legitimate enough for Senator Schumer to say, "Boy, I don't expect to agree with him. That's a problem for me in my decision whether to vote for him." The second is, we need to shift Senator Schumer's instinct that he's got a problem there from grilling and attacking the nominee to putting pressure on the White House. We want to focus that political energy on pressuring the White House rather than pressuring the nominee, and I'm using these names because these are the forces currently in contention. It would be the same if it were Democratic President and a Republican Senator. I think the most important thing to do in that regard is to end this very unfortunate experiment this country has had with live nominee testimony at the judiciary committee hearings. This has become a forum for Senators to posture and demand things of nominees and it has no bearing or very little bearing on who actually gets nominated. It seems to me if Democratic senators want to pressure the White House to nominate someone of their liking, they have a lot of tools with which to do that. They can threaten en masse to vote against the person. They can, if they are in control of the body they could provide a list to the President and say, "If you don't choose off of this list, we won't even-- we'll just vote them down the day the nomination shows up." All of that is well within their power. And yet we think of that as somehow too aggressive. What I would say is all of that is actually a little bit more modest than what we in fact do right now, which is we wait very passively the Senate that is, waits very passively until the President makes a nomination, and then jumps on the nomination and attacks him. I think this is the worst of all worlds. The history of these hearings shows very clearly as nothing else I have ever examined the history of shows, their purpose was to pressure nominations. It was never to have a dispassionate serious examination of judicial philosophy, it was to put pressure on people to deliver substantive outcomes. And we are seeing now that it behaves exactly the way Senator Eastland intended it to. And I think we need to think very seriously whether that's an innovation that we're proud of. As a society, as a political culture. Or whether it's an innovation that we-- it was an experiment, it didn't work, it caused a lot of problems and now it's time to get rid of. And with that, I will take questions, if anybody has them.