On Scalia’s replacement, Senate R’s should follow Obama’s lead

Yes, you read that headline correctly. In the wake of the extremely untimely death of Justice Antonin Scalia, I believe that Senate Republicans should follow Barack Obama’s lead when it comes to the next Supreme Court nomination. Specifically they should follow the path laid out by then Senator Obama in a 2005 speech explaining his decision to vote against the nomination of John Roberts. Specifically, Obama said that:

…while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

Republicans in the Senate should take that standard to heart and both act and vote accordingly whenever Scalia’s replacement is finally nominated.

To be honest, Obama’s standard for evaluating a judicial nominee has almost nothing to recommend it. It has no basis in the Constitution, nor in historical tradition, nor in the oath that Judges take, nor in any common sense understanding of the role the judiciary can legitimately play in a democracy. Although calling it “Obama’s standard” is not entirely fair. In his speech Obama merely made explicit what had been implicit long before Obama came along, at least since 1987 and the defeat of the nomination of Robert Bork to the Court, and that is that the judiciary is a political branch of the government that makes decisions based on not on the law or the constitution, but rather on the personal values and political philosophy of individual judges.

Again, there is almost nothing to recommend Obama’s approach to nominating and confirming judges. Almost. The only thing that does recommend it is that it is already a reality for roughly half of those involved in the process, including half of those already on the court. Given that reality, R’s have virtually no choice but to play by the same rules. To be sure, embracing those rules is destined to alter the nature of our political system beyond recognition, but R’s must face the fact that it has already started to happen without them, and will continue to happen with or without them. The best they can hope to do is embrace this new system in the hopes of influencing the system towards their own values. The idea of objective law being applied objectively by judges seeking to understand the law on its own terms regardless of personal values is, we must admit, a failed experiment.

A baseball team facing an opponent that not only routinely ignores the written rules of the game but has bought off half of the umpires in its effort to do so has no choice but to follow suit. Republican Senators must establish explicit political litmus tests for potential nominees to the court, and must apply those tests ruthlessly, using all possible political machinations to impose their will. They must, as Senator Obama did, vote only for those nominees to the court which reflect their own “deepest values”, their own “core concerns”, their own world philosophy, their own notion of who deserves “empathy”.

The days of allowing well qualified judges of any political stripe to sit on the court are over. We may lament that fact, but we must accept it nonetheless. The Court is now a political branch of the government, and to treat it as something different is to deny reality. The politics of nominees to the court explicitly matter. R’s must do everything they can to understand the politics of future nominees, and reject any nominee that does not reflect their own conservative values and a conservative understanding of the constitution. In other words, they must take Obama at his word and do exactly what he would have them do. The Democrats asked for this kind of process. R’s should give it to them.

Report on Manufactures

5 Dec. 1791Papers 10:302–4

A Question has been made concerning the Constitutional right of the Government of the United States to apply this species of encouragement, but there is certainly no good foundation for such a question. The National Legislature has express authority “To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare” with no other qualifications than that “all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that “no tax or duty shall be laid on articles exported from any state.” These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this–That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.
ALEXANDER HAMILTON

The Founders’ Constitution
Volume 2, Article 1, Section 8, Clause 1, Document 21
http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html
The University of Chicago Press

The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961–79.

Conservatives Behind the 8-Ball

Ever since last week I have been contemplating writing a post about the Supremes and judicial philosophy, but have not had the time to really put my thoughts in order, so I have put it off. Today, however, William McGurn, writing in the WSJ, noted in passing precisely the topic I wanted to write about, so I figured I would just highlight what he said. His article is primarily about Chief Justice Roberts’ decision to switch votes on the ACA case for what are seemingly political rather than constitutional reasons. But what caught my attention, and what I have been thinking about for a few days now, was the following aside:

Justice Scalia’s dissent in Casey illuminates a political handicap imposed on conservatives by their own principles. Whereas the liberal belief in a living Constitution allows them to stretch its limits to justify almost any desired outcome, conservatives believe the Constitution imposes real limits.

This strikes me as a real handicap. This is not to say that conservatives on the Court everywhere and always apply that belief and those limits consistently. We need look no further than Roberts and the recent decision itself to know that. But it seems to me that conservatives are uniquely open to the charge of failing to uphold their self-proclaimed principles because they actually profess to have some.

Putting aside whether or not the charge of hypocrisy actually had merit, at the very least it is fair to question whether or not the conservative bloc ruling in Bush v Gore set aside ostensible principles (eg states rights) in order to reach a politically desireable result. But imagine a mirror situation in which the reverse had happened. Imagine that a liberal majority on the court had made precisely the same ruling resulting in a Gore victory. The liberals might be accused, as they often are, of simply ignoring the constitution out of convenience. But who could ever seriously charge them with judicial hypocrisy? If liberal constitutional philosophy is correct and it is true that the constitution is “living” and therefore its meaning perpetually in flux depending social norms, circumstances, or who knows what else, then at any given time their interpretation of it may well be the “correct” one, even if it stands in contrast with the plain words of the constitution itself.

Basically, it seems to me that conservatives advance a theory of constitutional interpretation that makes conservative opinions objectively critique-able on their own terms, while liberals do not. That is why hand-wringing over the legitimacy and politicization of the Court inevitably centers around conservative Court opinions, and never, ever around liberal Court opinions. Again, the recent ACA case is instructive. Conservatives are now attacking Roberts, not the liberal bloc that voted with him and made up 80% of the majority, for what seems to be a politically inspired opinion, not because they think liberals aren’t being political, but because Roberts seems to have gone against his principles, while the liberals were just doing what liberals do.

The Political Supremes

The WSJ today notes something odd that I noticed and thought was peculiar yesterday in reading through the dissent:

One telling note is that the dissent refers repeatedly to “Justice Ginsburg’s dissent” and “the dissent” on the mandate, but of course they should be referring to Ruth Bader Ginsburg’s concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.
The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court’s institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties. If this was a play to compete with John Marshall’s legacy, the result is closer to William Brennan’s.

Charles Krauthammer proposes a similarly political explanation for Roberts’ decision.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature…
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Whether or not this is true, Roberts’ decision will not, and should not, restore any lost legitimacy of the court. The legitimacy of the court (to the extent that it even matters) had not been brought into question because one or two contentious decisions have been perceived as politically motivated. The legitimacy of the court is in question because the court has become a political institution. In our post-Roosevelt and, in particular, post-Roe world, justices are appointed and confirmed to the court by politicians in a blatantly transparent effort to effect political ends via the judiciary. And once on the court, those justices do what they were nominated to do. From a layman’s perspective, it has become obvious that, on many politically contentious issues that make it to the court, justices have a preferred result in mind and use whatever lawyerly semantics, sophistry and tortured reasoning they can to justify reaching that preferred outcome.

Far from dispelling this impression of the court, Roberts’ opinion merely strengthens it. The fact that he is a conservative joining a bloc of liberals does nothing to blunt the undeniable conclusion that this decision was politically motivated. It doesn’t matter much whether it is because he likes the direction in which Obamacare is taking the nation, or because he is trying to – ironically – alter perceptions of the court. It is clear that he has engaged in the same semantics, sophistry and disingenuous parsing that has made so many of us non-lawyers so cynical about the court’s proceedings.

If Krauthammer is correct and Roberts’ decision was driven by a desire to burnish the courts flagging reputation as an impartial, non-political interpreter of the law, he could not possibly have taken a more counter intuitive approach, nor have failed more abysmally.

SCOTUS Decision (Open Thread)

So today is the day. I thought we could just use an open thread for comments as the decision and opinions come in.  Anyone have a link to that liveblog we can add here?

Health Care Predictions Post

Prediction time — by 9:00 Thursday morning enter your prediction.  To keep this somewhat simple, include (at a minimum) the outcome on the mandate and the related insurance reforms (guarantee issue and community rating), the vote, and who writes the opinion for the majority and the dissenters and a brief rationale.  If you want to weigh in on the Medicaid expansion feel free.

Example:

6-3 mandated overturned, but guarantee issue and community rating upheld.  Roberts for the majority, Kennedy concurring, and Thomas with the dissent.   Congress can dictate how insurance is sold and priced, is within its rights to require companies to sell to all comers, but it can’t make an individual purchase  it.

Just edit the post to insert your comments next to your handle.  Applogies if I’ve missed a name.

UPDATE:  How to read the ruling from SCOTUSblog

NoVA: Mandate is unconstitutional based on a vote of 5-4.  Based on this, the entire law goes down 6-3, as one of the liberals —  Sotomayor — joins with the rest majority on the severability issue and finds that Congress did not want the rest of the law without the mandate.   Roberts with the majority, Thomas with a concurrence that eviscerates the reasoning behind Wickard,  and Kagan with the dissent.

ScottIn a total shock, one liberal justice (not sure which one) decides to actually read the constitution and betray the cause, sending the mandate down in flames, 6-3. Then, in October, Yankees over the Nationals in 6. A-Rod goes 0 for the series, Strausberg get the win in both National victories, including only the second perfect game in World Series history, but Robinson Cano win Series MVP honors after hitting .515.

LMS  Mandate goes down 5-4 with Scalia writing a scathing critique of Obama as the majority.  I read about his dissent in the immigration case, took it all the way back to the civil war and free blacks from what I heard.  Ginsburg writes the dissent.  I’m not sure about the rest (or even the above frankly) but I don’t really expect the rest of the law to stand as is.  I’m just not enough of a lawyer (none at all actually) to know how they could frame it.

Yanks vs Angels in American League Playoffs…………..Trout saves game five for the Angels with an over the wall catch and two home runs but Weaver pitches the no hitter that clinches the AL title in six.

NoVA, what do we win if we get it right?  What’s the prize?

Mark  

1] Severance.  Addressed only by Thomas and Scalia in their dissents.

2] Medicaid.  Roberts writes majority opinion on all points.  6-3 uphold expansion, but more important to the state AGs, effectively 8 vote that the Congress cannot penalize a state for refusing the “voluntary” expansion.  Breyer dissents that the states can be penalized for refusing the “voluntary” expansion.    The state AGs get what they hired Clement to do.

3] Individual Mandate.  Congress can dictate how insurance is sold and priced, is within its rights to require companies to sell to all comers,  can’t make an individual purchase  it, but can tax the uninsured, which is what Roberts says is being done.  Upheld, 6-3, Scalia, Thomas, and Alito dissenting.  Breyer concurs but writes an opinion that Congress can make an individual purchase insurance if it is part of an overarching scheme to provide health care for all.  Kagan and Sotomajor join the concurrence but RBG does not, preferring to join Roberts and Kennedy in the Opinion.

4]  Anti-Injunction statute.  Roberts shuts that door on a second attack in 2015.  Scalia writes an attack dissent to this, suggesting that the first time someone pays the tax he should sue for a refund, because this whole scheme is an imposition on liberty.

I might change my mind, because like QB I really go back and forth on this.

Banned

Yello The insurance mandate is struck down 5-4 with Roberts writing the main opinion. Scalia’s concurring opinion mentions broccoli explicitly. Kennedy writes a separate concurring opinion undercutting Scalia and giving guidance on how a rewrite could pass muster.

Brent

Kevin

Michi

Entire law stands 6-3, Alito, Scalia and Thomas dissenting.  Georgia just opened the door to interstate commerce with its new health insurance law, and the Court has to address it; Roberts sees the long picture and decides to go with history.  Of course, I’m writing this without the benefit of having read any of the learned comments posted below, so. . .

Roberts writes the majority opinion, with Sotomayor and Ginsberg writing their own concurrences (if that’s the right term), and Scalia jumps the shark again in his dissent.

Scott–I never knew that you were such a romantic!  Cano batting 0.515?!?!!  🙂

Ashot

Mike Well, FWIW …

1) Anti-Injunction Act. 7-2, SCOTUS is not precluded from deciding. Roberts writes that the penalty is really a penalty and not a tax because the word “penalty” is written into the legislation. So, AIA doesn’t apply. Scalia/Thomas dissent.

2) Mandate. 6-3, mandate upheld. Roberts buys the argument that Congress can regulate the purchase of health care and that buying health insurance is the way that most health care is purchased. Since Congress has already mandated that emergency rooms must provide health care regardless of ability to pay (through EMTALA), they can assess a penalty for “costs.” The activity/inactivity argument is tackled using Judge Sutton’s formulation of self-insurance. Scalia/Thomas/Alito dissent, each writing a dissent and reading from the bench.

3) Severance. Mooted by the majority opinion upholding the mandate.

4) Medicaid expansion. 7-2, upheld. Roberts is unwilling to go back through all the Spending Clause cases and agrees with the lower courts that the expansion is consistent with Congress’ spending power. He is also unwilling to set a precedent for the application of coercion theory in this case. Scalia/Thomas dissent.

Dave!

TrollMcWing

Quarterback:  Upheld 5-4. Kennedy will not have the courage to do the right thing. As the Casey plurality opinion showed, he is more committed to protecting what he sees as Court legitimacy than to following the Constitution. [I have changed my mind several times recently, and may do so again! In fact, even now I am trying to imagine how he will rationalize upholding it. I would like to read all the Arizona opinions first but probably won’t have time.]

jnc4p

Fairlington Blade:  Mandate goes down 5-4, but I’ll go with severability. Most of the law stands.

okie

allbutcertain

bsimon

Obamacare down to the wire

As the Supreme Court’s ruling on the constitutionality of Obamacare approaches, the NYT today has an article about how many supporters of ACA were slow to realize the dangers of a constitutional challenge.

It was to be expected that Obama would express public confidence in the constitutionality of the law, and of course we all remember Nancy Pelosi’s now potentially embarrassing dismissal – “Are you serious?” – of a reporter who dared to question her on the constitutional legitimacy of the law she had just passed. At the time I simply assumed that this was natural political bluster. But it seems that a great many Dems did indeed view the idea that forcing people to purchase a private, commercial product simply because they happen to exist might be beyond the legitimate power of the government to be beyond the pale.

“It led to some people taking it too lightly,” said a Congressional lawyer who like others involved in drafting the law declined to be identified before the ruling. “It shouldn’t strike anybody as a close call,” the lawyer added, but “given where we are now, do I wish we had focused even more on this? I guess I would say yes.”

How could they have been so wrong about this? It is one thing to be able to craft, out of Supreme Court precedent and a manipulation of language, a legitimate-sounding argument supporting the constitutionality of a power that had never been exercised before in the history of the US. But it is quite another to imagine that no reasonable counter argument could possibly exist or be forwarded. I don’t know which way the Supremes will ultimately vote on this, but it is clear now that it has been a reasonably close call, whichever way it goes.

How could experienced lawyers and constitutional scholars have thought – actually still think – that the constitutionality of a heretofore unexercised power which relies on the counterintuitive (some might even say perverse) definition of the absence of activity as the presence of activity, was an obvious and certain constitutional lock? Is it an example of widespread wishful thinking? The results of an academic liberal echo chamber? A mass delusion? I really don’t get it.

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