The Wisdom of Eight

In the recent Zubik v. Burwell, the “Little Sisters” contraceptive mandate case, the U.S. Supreme Court took the unusual step of the sending the lawsuit back to the lower federal courts and instructed them to try to “arrive at an approach going forward that accommodates the petitioners’ religious exercise while at the same time ensuring that women covered by petitioners' health plans “receive full and equal health coverage, including contraceptive coverage.” Reactions to the Court’s order have been mixed, though largely negative. Critics generally complain that the Court must be able to provide definitive and final answers to legal questions. According to these critics, the ability to resolve legal differences and lend clarity to the law is central to the Court’s role. This is something that an 8-member Court is not able to do. More damningly, an 8-member Court is “Not So Much Deadlocked as Diminished.” The obvious solution is for the Senate to confirm a ninth justice.

This is puzzling on many fronts. As a question of constitutional history: the Court hasn’t always had an odd number of justices. Under the Judiciary Act of 1789, in fact, the Court would have one chief justice and five associate justices. The Court also had an even number of justices (ten) during the Civil War. This history suggests that a focus on mere numbers misses the larger story. The focus should not be on the need for a new justice to break all ties when the Court is closely divided, but on why there is a need for such a justice at all. In other words, the focus should be on the rise and fall of the norm of consensus and its lessons about the Court, constitutional law, and judicial behavior. What does the need for a tie-breaking justice tell us about the institution, the justices, and constitutional interpretation? These are not idle questions.

As a question of constitutional law: The Court is not the final constitutional arbiter that critics of Zubik wish it to be. This is largely a myth fostered by the legal culture and the Court itself. The justices are keenly aware of the impact of their decisions on the relevant publics and acts accordingly. This is true across the Court's history, from the time of Marbury to Brown and the present day. Think about the last time the Court valiantly took on democratic majorities in the name of constitutional law.

I can't think of many either.

Whether we like it or not, the Supreme Court is generally in line with public moods and trends. This is particularly true for the notable cases that occupy the public’s attention, and about which the justices care deeply. These are the politico-moral issues, which are perceived as having right/wrong answers and thus have the potential to polarize a nation. These are the issues that opinion polls track, the issues that the public follows and understands, the issues about which most of us care deeply, including the justices. These are the classic “litmus test” issues, such as abortion and affirmative action, which Senators are sure to ask about during confirmation hearings, and which the public wants to know about prior to confirmation. These are the issues that define judicial eras. For the issues that matter, then, constitutional meaning is deeply influenced by public opinion. As a result, the Court is only as final as the public wants it to be.

As a question of constitutional theory: think about the amount of ink spilled in the last generation over the proper role of the Court in a democratic society. The debate has been deafening. To date, the critics might have the upper hand. It is difficult to reconcile judicial review with democratic theory. This is why the end of this Term offers a simple yet brilliant answer to Bickel’s famed difficulty: a diminished Court. And yet, critics of Zubik take the opposite view, and wish for a muscular and aggressive Court to take on existing majorities. What lies behind these arguments? Is constitutional theory no more than a question of whose ox is being gored?

A Word on the "Mystery" of Justice Stevens' Change of Heart on the Death Penalty

In Sunday’s New York Times, Adam Liptak “settles [a] legal mystery:” how to explain Justice Stevens’ vote to reinstate the death penalty in 1976 and his shift in 2008, when he wrote that he believed the death penalty to be unconstitutional?  To the untrained eye, this might appear to be a puzzle indeed.  If the Constitution is but an unchanging legal document, and the Justices’ job is akin to legal archaeology, how to explain any change in legal doctrine, not to mention changes of heart among particular justices? 

Justice Stevens’ answer is uneventful: changes in the composition of the Court, coupled with what he labeled “regrettable judicial activism,” led to a system that is no longer constitutional.   In other words, a process that once could withstand constitutional scrutiny was irretrievably damaged by allowances made by the Court itself.  This is a process, Liptak writes, “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

But clearly this is no mystery. 

The Power of One

A financial reform bill is finally coming to President Obama's desk for his signature.  Yet, according to a recent article by the New York Times, the bill lacks protections against three notorious lending practices from auto dealers that should have been addressed by the new law. For my purposes, the actual exemptions themselves are irrelevant.  The obvious question is why the bill exempted these practices. The answer is an abject lesson in the power of one, and centers on one of our most undemocratic of institutions.

I am not referring to the Supreme Court and the power of judicial review.

Replacing Justice Stevens

Upon the announcement that Justice Stevens is indeed retiring from the Court, Senate Republicans immediately began to offer their views on the future nominee. According to Senator McConnell, for example, "Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law," while Senator Lamar Alexander warns that "I hope President Obama will nominate his successor from the middle and not from the fringe. His nominee will be fairly and respectfully considered. The question is not whether the president's nominee is politically 'on my side,' but whether he or she is well-qualified and has a record of being impartial." In case anybody missed the implication, he added: "In truly extraordinary cases, I reserve the prerogative to vote no on confirmation or even to vote to deny an up-or-down vote."

The writing is already on the wall, and I can only conclude one thing: it stinks to be a progressive.

When Republican presidents nominate justices, they usually pull no punches: think here of the present conservative majority on the Court. Justices Scalia and Thomas are "impartial and even-handed" in the same way that I am from Mars. The same goes for Justice Alito and Chief Justice Roberts. Yet somehow Republican presidents appointed them to the bench and Senate majorities confirmed them. No talk of filibusters then, but rather, of nuclear options and a fair vote.

In contrast, Democratic nominees are quite tame in comparison. There is simply no way to look at Justices Breyer, Ginsburg and Sotomayor and think of them as ideological counterweights to Scalia and Thomas. Case in point: the conservative majority on the Court is so far to the right that a year ago, with Justice Souter on the bench, two of the four "liberals" were appointed by Republican Presidents. What does that say about the ideological commitments of this majority?

This is simply maddening (or, depending on your point of view, a brilliant political strategy, nurtured and developed over time). The conventional wisdom portrays any Democratic nominee as an activist, yet "conservative" nominees are "strict constructionist with deep respect for the rule of law." This is a blatant canard, but one with a lot of purchase where it matters. This is the main reason why conservatives can go to the far right, to the fringe of the party, and grab anybody they want, and liberals must come to the center. Conservatives can choose Justice Alito, but liberals can barely get Justice Sotomayor (I imagine those 31 Senators voting against her would only have supported President Obama's nominee if she had been Harriet Miers).

It is clear that the Republicans hold the upper hand and will continue to do so until the Democrats get a backbone. In case any further proof is necessary, see, for example, Dawn Johnsen's failed nomination to head the Office of Legal Counsel. In the aftermath of John Yoo's and Jay Bybee's stint in this office, I didn't think there would ever be any Republican objection to a Democratic nominee for the foreseeable future. I was clearly wrong, by a mile.

If Democrats had a backbone, they would nominate Pam Karlan, even Diane Wood. That is why Tom Goldstein wrote back in February that Elena Kagan is a "prohibitive favorite" or, according to Elie Mystal at Above the Law, the "front runner."

This is depressing and even "harmful," but not terribly surprising. Guy has much more to say about nominating Kagan, and I look forward to his future post on the subject. For the moment, I will only offer the following, written by Tom Goldstein last October: "I don't know anyone who has had a conversation with [Elena Kagan] in which she expressed a personal conviction on a question of constitutional law in the past decade." That is not disqualifying, to be sure, but hardly something that should instead elevate a person to the select realm of Supreme Court nominee.

The Puzzling Case of Harold Ford, Jr.

In today's edition of the New York Times, Harold Ford, Jr. explains why he will not be challenging Senator Gillibrand for the U.S. Senate. To run in the primary would be to cripple the eventual Democratic nominee, and Ford, Jr. simply "refuse[d] to do anything that would help Republicans win a Senate seat in New York, and give the Senate majority to the Republicans."

We can certainly disagree about the sincerity of his views, and whether he stood a chance in the primary contest. From where I sit, far away from New York politics, the Harold Ford, Jr. non-campaign raises innumerable questions about the media and U.S. politics. As I think about these, I cannot help but return to the one fundamental question: why the obsession with Mr. Ford?

From the moment in early January that we heard that Mr. Ford was contemplating a challenge to Ms. Gillibrand, the attacks began slowly yet relentlessly. They came from all quarters, and even Steven Colbert joined the fray. In fairness, Mr. Ford offered an easy target. It was also great fun to boot, to watch him squirm and defend past positions in light of a changed prospective constituency.

(In the interest of full disclosure, I must note that I am a big fan of the Colbert Report AND loved the Ford interview, the way one loves an impending car crash)

The day Ford announces his decision not to enter the race, Steve Kornacki over at Salon asks "where will Harold Ford Land?" He offers four choices: the governorship of Michigan or Texas, the DC mayor's office, or the U.S. Senate race in Pennsylvania. It is pretty funny stuff, even worth reading.

But the whole story is still puzzling all the same. Certainly Ford is not the first candidate to relocate to New York and run for office there. Surely commentators remember Bobby Kennedy's 1964 successful Senate run, or Jim Buckley's successful run in 1970, not to mention Hillary Clinton's run in 2000. So carpetbagging can't be it.

Another reason often cited is that Harold Ford is a phony. This might be part of the answer, but cannot be all of it. After all, we are talking about politics, an arena where phoniness and flip-flopping are job requirements. It is not as if politicians have just acquired a new persona in the public imagination, yet Harold Ford somehow missed out.

Besides, as I have written before, Ford's "phoniness" is not as simple as columnists like to argue. He is a politician running for office in New York, trying to make his case to a left-of-center electorate. In his last race, for a Senate seat in Tennessee, he had to make his case to a right-of-center electorate. Now, it is obvious that his prior views must change if he stood a chance in the New York race. But the better question is, what exactly do we want to see in our ideal representative? I won't rehash this argument here. Rest assured, the argument is not terribly complicated. Unfortunately, that argument neither sells papers nor amuses readers.

I neither have the time nor the inclination to look back through prior campaigns and compare the media treatment given prior outsiders running in New York. I can sincerely say that I do not remember a similar skewering of Clinton's obvious carpetbagging. I also wonder about Kennedy and Buckley.

As I ponder the questions posed by the Ford "campaign," I think of James Fields, the Alabama state representative featured on the Sunday Times. In reaction to this piece, Guy asks: "what does it cost black elected officials (or would be elected officials) to run for office in predominantly white electoral districts in the deep South." That is a very important question to ask. The treatment of Harold Ford Jr.'s non-candidacy makes me wonder whether the question should be applied across all fifty states.

Harold Ford, Jr., Media Star

A few nights ago, Harold Ford, Jr. appeared as a guest on the Colbert Report, to the delight of columnists and bloggers everywhere. Depending on who you ask, the interview was "painful -- yet strangely captivating;" a "skewering;" and "[t]he most charitable thing to say about it is that it did not go well." In a word: Colbert "destroyed" Ford, Jr.

Undoubtedly, this was not a good interview. Again.

Rather than focus on the limitations of his as-of-yet unannounced candidacy, however, we should focus on the opportunities that his candidacy bring.

Think of it as community service.

I alluded to some of the lessons of his candidacy last week. Are representatives supposed to speak for us, so stand-in and say the very things that we want them to say? Or are they to act as trustees, doing what they deem best and irrespective of what we would want them to do? This is by no means an easy question, nor does it have a definitive answer. In fact, Ford's candidacy amply demonstrates that we hold conflicting views on this important issue.

Sometimes we criticize him for changing his views and pandering to a New York constituency; while other times we criticize him for misunderstanding this constituency in the first place.

Thus the opportunity: rather than criticize him for trying to squirm out of the difficult position he is in, we should engage the larger debate that his candidacy represents. To run for office in Tennessee, after all, is far different than running for office in New York state. I am afraid that it is just too much fun to watch him squirm, so the larger lessons and debates will have to wait for another day.

In fairness, he is partly at fault for this. Rather than try to make his views square up with the the electoral realities of his new state, Ford should just embrace the change and be honest about it. The evidence is clear and unassailable, and trying to re-write it only makes matters worse.

In this, he should listen to Kelli Conlin, President of NARAL Pro-Choice New York. When asked why NARAL had backed Ford initially and even gave him a 100% rating at one time, she answered: "You have to look at it in context. In the South, we're constantly looking for candidates that will be moderate and progressive. It's hard down there."

It is hard down there indeed, not just for NARAL, and context is everything.

This is all to say that Ford should just stop treating New York voters like idiots. This reminds me of President Obama's speech on race during the campaign. This is similarly a teachable moment.

While in the end he might lose all the same, at least he would do so with dignity.

The Sotomayor Confirmation

I tried -- I really, really tried -- to watch the Senate "deliberations" over the Sotomayor nomination.

I really did.

But I could not take it anymore.

First off, who are these people, and who are they talking to? If I hear that Supreme Court justices are appointed for life one more time, and how important their rulings are, I will scream. They could not possibly be talking to one another. Is it C-SPAN viewers? All three of them?

Worse yet, does anybody follow what they are saying, and believe any of it? To some, Sotomayor is a terrific judge, like no other, well qualified, well-rounded experience. To others, she is a judicial activist, an affirmative action baby (this is implied, of course), not fit to serve on our highest court (after some of our more recent nominations, you'd think this argument was no longer availing). Surely they are not talking to the dreaded "independents" of election lore, the types who wait until the last moment, and the last argument, to make up their minds. So what is it? Have these people nothing better to do?

So I finally gave up. Closed my browser and tended to more fruitful things, like cleaning my office.

Call me naive, but this "debate" makes me shudder about the future of our politics.

Gotta love "deliberative" democracy.