Ronald Dworkin argues that Supreme Court nominees could "educate the public in the political complexities of constitutional law"

NYU and University College (London) Prof. Ronald Dworkin

by Ken

That may have naughty of me, titling my post last night "On what basis might the rightward drag of the Supreme Court be arrested, or at least slowed?" without actually addressing that question. I did tone that head down, from something closer to "How might the rightward drag . . . ?"

The idea -- known only to me, of course -- was that I wanted to work toward the question of what we're going to have to do to so much as slow down, let alone arrest, the heavy extreme-right pressure being exerted by the Supreme Court's pack of out-of-control far-right-wing zealots.

When Sonia Sotomayor was nominated and confirmed to the Court, I voiced my extreme distress, not at her qualifications or likely service, but at the indications from the process of selection and subsequent willful mischaracterization, that a moderate like Judge Sotomayor was now as close as we could ever come to a truly liberal Supreme Court justice -- and even someone as centrist as she is was acceptable only because she had the political cover of being the first Latina appointee.

It's the Right-Wing Noise Machine that makes it possible, of course. In the same way that a right-of-center moderate like Barack Obama can be called a socialist without any recognition of the preposterousness of the notion, any judicial nominee to the left of, say, Robert Bork can now be branded "an extreme left-winger," and nowhere in the Infotainment Newsmedia is there even a hint of pushback, whereas zealots as extreme as John John Roberts and "Sammy the Enforcer" Alito can masquerade as centrists and nobody so much as cracks a smile of incredulity.

I don't see how this can ever be changed without a broad-based attack on the faux-centrist media and pols who choose to give it cover. Especially because the issues are so easily distorted for public consumption, since the general public has near zero-comprehension of anything the federal judiciary does.

Above all, this means that the Far Right has gotten away with defining the American legal spectrum as a divide between judges who "just apply the law" on their side and "activist judges," with of course proper respect for God's law, on the other side who rule based on their extreme-left biases, not to mention other abominations like "foreign law." And they get away with this mischaracterization despite the fact that there isn't a grain of reality or truth anywhere in this tissue of bare-faced lies.

There is, of course, no such thing as a Supreme Court justice "simply applying the law." If the matters at issue could be resolved by simple application of the law, the case would never have reached the Supreme Court. This seemingly simple bromide in fact represents a misunderstanding of American law and the U.S. constitutional system so profound as to be all-encompassing, which means that the people who propagate it are either judicial nitwits or garden-variety liars.

We had a flurry of hope for a fundamental shift in the confirmation process in June ("Is there a glimpse of daylight beyond the 'Let Them Eat Guns' Roberts Court?"), when it was suggested that Sens. Sheldon Whitehouse and Al Franken planned to redirect the questioning "to put the right of citizens to challenge corporate power at the center of their critique of activist conservative judging, offering a case that has not been fully aired since the days of the great Progressive Era Justice Louis Brandeis." This turned out to be a false alarm. It may be that it happened and the Infotainment Newsers didn't notice, which would be the same as it just not happening.

The message I got from this round of confirmation hearing is that in addition to the Far Right now having veto power over the allowable deviation from center in a Supreme Court nominee, Lying Right has now formalized the frame that confirmation hearings exist to distinguish between judges who will "just follow the law" and (boo! hiss!) the other kind, the liberal activists. So if you're a right-wing wacko like Roberts or Alito, you have license to lie your lying head off at confirmation about just following the law, so that once confirmed you can set about reducing the Constitution to toilet paper in accord with your own crazed white-male-establishment zealotry, while if you're anywhere to the left of right-wing wacko, you will be trashed as a "liberal activist."

You'd think that ideological hacks like Sens. Orrin Hatch and Jeff Sessions, feigning such concern for judicial experience in a prospective Supreme Court justice, would be citing as a cautionary tale the career of the therefore-manifestly-unqualified William Rehnquist. They might even want to agitate for invalidating every Court ruling in which his vote counted toward the majority. I'm not going to hold my breath, though.

Justices Ruth Bader Ginsburg and Anthony Kennedy were on hand for yesterday's White House celebration of Justice Kagan's swearing-in, which took place today.

Now, I'm not blaming Elena Kagan for following the now-obvious strategy of going along with the charade and in the process saying nothing about her own concept of jurisprudence. She would have been crazy to do anything else. And Prof. Ronald Dworkin makes just this point in the New York Review of Books piece I mentioned last night, "The Temptation of Elena Kagan," in the August 19 issue.

It was predictable that Kagan would follow this now well-trodden path. She knew that if she disclosed nothing she would soon be a Supreme Court justice for life. If, on the contrary, she was even slightly more adventurous, there was a good chance she would not be confirmed. If she showed herself sympathetic to abortion rights or unsympathetic to gun rights, for instance, Republicans and conservative Democrats would feel bound to join a filibuster to sink her.

The committee senators, for their part, had no reason to press her to be more forthcoming. Democrats had no wish to endanger her appointment, which would be a terrible defeat for the President, and Republicans had no wish to contradict their own repeated and ludicrous declarations (cheerfully endorsed by their recent nominees, Chief Justice John Roberts and Justice Samuel Alito) that a judge can always decide what the law requires without calling on any moral or political convictions or any theory of social justice.

Nevertheless, as Dworkin notes, "[T]he Kagan hearings have been almost universally denounced as pointless and calls for reform have increased," and he proceeds to "review the hearings in some detail to consider how far that charge is justified and how confirmation hearings might be improved."

The Supreme Court is a very powerful political institution: justices are appointed for life and five of them can veto any decision, no matter how popular, of Congress or a state legislature. Only the Senate confirmation hearings offer the public a chance to participate in the process . . . [A]s Kagan pointed out in 1995, failure of disclosure undermines the public’s power to help choose.

Dworkin notes Kagan's explanation that she had been persuaded in a private meeting with Senator Hatch "that the 'balance' of her earlier statement was 'a little off,'" and so she would be pulling back from most of her former recommendations. He's not impressed by her argument "that she must not disclose her views about particular issues that might come before the Court because it would be injudicious and unfair to future litigants for her to publish her views in advance." He points out that the eight sitting justices "have expressed their opinions on a large variety of constitutional issues through their votes and their majority or dissenting opinions." However, he argues --

there is a genuine and important countervailing argument. It is crucial to the role Supreme Court justices play in our constitutional system that they be free and able to reject popular opinion—to overrule the wishes of the majority in order to protect individual rights. The individual rights that need protection are often unpopular; it would compromise that crucial role were the public able to defeat a nominee because he or she proposed to defend such rights.

He doubts that anyone who expressed concern for due process for suspected terrorists, or for the right to choose abortion, or for possibly recognizing a constitutional right to marriage equality --

could be nominated now or, if he were, escape a filibuster or outright defeat. So if nominees were as candid as Kagan proposed in 1995, and senators approved only those with very popular opinions, Americans might lose their traditional protection against majority selfishness, intolerance, or prejudice.

True, the right-wing phalanx of the Court has used its power to overrule the will of the majority in what strikes many of us as an indefensible and dangerous way: not to protect a vulnerable minority from majority indifference or hatred but to protect conservative interests and privilege from progressive legislation. Richard Posner, himself a conservative judge, recently wrote that four of the five most conservative justices since 1937 are together on the Court now: Chief Justice Roberts and Justices Clarence Thomas, Antonin Scalia, and Samuel Alito. Many lawyers believe it would have been better had Roberts and Alito been forced to disclose their real substantive intentions in their hearings because they would not have been confirmed if they had. Posner said of Roberts: “The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts’s reputation for candor and further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”

Dworkin still thinks, though, that nominees "should certainly be pressed to discuss constitutional theory and political principle at a more abstract level.

As Kagan pointed out, judges may not declare that the Constitution’s requirement that senators be “thirty” years old really means “forty” because people live longer now. But some of the most important constitutional clauses are drafted in abstract moral language, such as the Fourteenth Amendment’s injunction that government must accord everyone the “equal protection” of the law. How can judges decide whether laws against consensual gay sex or gay marriage deny equal protection to homosexuals without deciding, for themselves, what equal citizenship means and requires?

He doesn't think much of the argument that judges can avoid imposing their own moral judgment by "find[ing] the right answers in history," applying "abstract moral clauses" according to either the intent of the framers or "practices and traditions embedded in American history." After all, "a judge must rely on moral conviction even to discover what history teaches."

Dworkin seconds the point made by Kagan herself, that the framers knew what they were doing when they chose to used abstract moral language rather than setting down precise rules, and cites her example of the 1954 Brown school-desegretation decision. "The Supreme Court did not change the Constitution, but only enforced its original meaning," even though the framers expressed no qualms about school segregation, and --

the Congress that adopted the Fourteenth Amendment itself segregated the schools of the District of Columbia from 1864 onward. The Court enforced the original meaning of the Fourteenth Amendment in 1954 because the framers laid down a principle that required the justices to decide for themselves whether segregation is consistent with equal citizenship and they decided, rightly, that it is not.

I hate to skip over what I consider Dworkin's irrefutable case against the argument that judges can judge from "history," either framer-type or traditions-and-practices-type. Goodness knows, that case needs to be made on a continuing basis, for the reasons I suggested above. At the time, as I pointed out, the fact that the explanation requires such detailed explanation means there isn't a chance in hell it will ever have the traction with the voting public of judges "just applying the law," in the same way that Justice Stephen Breyer's quite sensible case for "proportionality" as a way of weighing competing legal interests, to which I referred last night requires too high a degree of patience, sophistication, and to be frank interest to be followed by the general public, even though his approach, far from being "judge empowering" as critics charge, requires

a judge who uses such an approach [to] examine and explain all the factors that go into a decision. The need for that examination and explanation serves as a constraint. It means that the decision must be transparent and subject to criticism. Because the approach just illustrated can require the judge to accept reasonable legislative determinations of empirical matters, it is “legislator empowering”; not “judge empowering.” In the democratic society that the Constitution creates, legislative empowerment is a virtue.

(By the way, let me note again that the full text of the excerpt from Justice Breyer's forthcoming book, Making Our Democracy Work: A Judge’s View, published in NYRB as "On Handguns and the Law" isn't available free on the website, but I invite anyone who'd like to read it to let me know at kenfromdwt@aol.com. I had a terrific exchange with a reader who took me up on the offer, which I expect to report on in the near future.)

What then, does Dworkin think can be done about confirmation hearings?

[N]ominees should be required to discuss the larger issues of constitutional philosophy that I have mentioned: to provide a general account of how they propose to interpret and apply the grand but abstract clauses of the Constitution. This account might include, for instance, stating a general definition of what equal citizenship requires, what they take the purpose of the First Amendment’s free speech protection to be, and whether they are drawn to a majority-rule conception of democracy or a conception closer to that Justice Breyer defended in his recent book, Active Liberty. [Note: This is the justice's 2005 book, not the new one. -- Ed.] Skillful nominees can answer such questions without forecasting their own future votes in particular cases. In that way they can educate the public in the political complexities of constitutional law without compromising their protection of individual and perhaps unpopular constitutional rights.

Dworkin also suggests a change in Senate Judiciary Committee procedures.

It should appoint special majority and minority counsel, who might be academic specialists in constitutional law, to conduct a major part of the hearings, as other congressional committees do in other investigations. Senators will not of course deny themselves the opportunity to preen before constituents and to try to demonstrate (sometimes successfully) their own knowledge of constitutional law. But their television time could be reduced to give special counsel opportunity to press nominees in much more depth than senators can. This may not help much. But confirmation hearings remain the best and perhaps only opportunity to make constitutional law a matter of public interest and concern. That is a grand goal -- it would improve our democracy in many ways -- and we should miss no opportunity to pursue it.

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