Category: Supreme Court


The Unbearable Lightness of Empathy

As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts’s umpire analogy. The more I think about empathy and judging, however, the less I think that it has any substance at all.

In the case of Sotomayor, empathy was associated with identity politics. There was some ineffable something about being a wise Latina that gave Sotomayor special insight into the way that the law effects “ordinary people.” In Sotomayor’s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into “ordinary people” outside of her legal expertise.

Not so with Elena Kagan.

There is nothing in her biography to suggest any special insight into the lives of “ordinary people.” The Upper West Side (my experience with native New Yorkers is that some non-trivial percentage of them take a positive pride in NOT understanding America beyond the five boroughs), prep school, Princeton, Oxford, Harvard Law School, a Supreme Court clerkship, work at an elite law firm, the University of Chicago, the Clinton White House, HLS again, and the Solicitor General’s office. There’s nothing in there that screams, “Special connection with the poor and the downtrodden, or even with the middle class and doing fine.” From what I’ve seen, Kagan is an intelligent and decent person. She may well be able to see the world from the perspective of “ordinary people,” but if she does so it is by an act of imagination rather than memory.

None of this will keep folks from lauding Kagan’s “empathy.” If empathy is no longer tied to biography and identity politics is there anything left of it? The answer, it seems to me, is “Not much.” When empathy is invoked in contemporary debates about the judiciary, I think it’s best to simply see it as a gesture toward a set of substantive positions. To be empathetic is to be solicitous of the state in its role as regulator but less so in its role as defender of national security. It means a somewhat more pro-defendant position on criminal procedure. It means a preference for national rather than state government. Above all else, I suspect that it means holding the kinds of opinions that we all expect Elena Kagan to hold on the various cultural arguments — gay rights, abortion, etc. — that form the detritus of the sexual revolution. None of this, however, really has to do with empathy. Rather, it simply strikes me as a substantive vision of the relationship of the state to individuals, businesses, and local communities.


Looking Good for Kagan

On Monday, I suggested that the military recruiters/Solomon amendment issue had the potential to cause problems for Kagan’s nomination because of the hot-button issues it evokes — support for the military and gay rights. The issue has not gained significant momentum among Republicans, which is, of course, a positive sign for Kagan going forward. As Tom Goldstein noted yesterday:

Three days into the nomination, not much has changed.  No Democrat has opposed Elena Kagan; no Republican has endorsed her.  No Senator or serious commentator has suggested that she won’t be confirmed, or that the nomination should or would be filibustered.

Moreover, in yesterday’s The Caucus (New York Times), Carl Hulse reports on positive impressions of Kagan from two key Republican senators — Scott Brown and Susan Collins. Regarding the military recruiters flap, Brown stated (quoting from Hulse’s article), “It was very clear to me after we spoke about it at length that she is very supportive of the men and women who are fighting to protect us and very supportive of the military as whole. I do not feel that her judicial philosophy will be hurting our men and women who are serving.”

Senator Collins also spoke highly of Kagan and suggested that the chances of a Republican filibuster would be low. Collins specifically invoked the “extraordinary circumstances” standard for filibustering judicial nominees that was brokered by the Gang of 14 a few years back, stating, “At this point, I do not see the extraordinary circumstances that I use as a standard to determine whether to filibuster a nominee.”

With these remarks from two key Republican senators, you would have to think that Republicans will likely leave the Kagan nomination alone. There is always the possibility that another issue will arise or that existing potential problems will gain traction with Republicans. But given the lack of “buzz” over controversial issues in elite discourse, things are looking good for Kagan.


Immigration Federalism: Red and Blue

In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of “renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.


The Case for Judicial Experience

The debate over Elena Kagan’s lack of judging experience is heating up. The current justices, of course, are quite homogeneous in their career paths. In particular, for the first time in the Court’s history, all of the sitting justices served previously on the U.S. Courts of Appeals. Some argue that the Court needs more diversity in background experience. The normative argument is that lack of diversity in experience leads justices to view cases and legal issues through a similar lens — one that some consider narrow. Diversity in experience, on the other hand, promotes a broader, more multifaceted view of legal matters. For instance, those with experience outside of the judging realm have a greater appreciation for how “law…affects the lives of ordinary people,” to quote the sentiment emphasized by President Obama in his announcement of Kagan’s nomination. (“That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career — including her service as Solicitor General today.”)

While I think there are benefits to background diversity on the Court, I want to make the case for the importance of judicial experience, particularly U.S. circuit court experience, as I do not think this case has been succinctly articulated throughout this debate. To do so, I draw on David Brooks’s very thoughtful column, written in September of 2008, stressing the importance of experience in governing. The column was written in the context of the debate over whether Sarah Palin was qualified to be Vice President and, perhaps, President. Quoted below is Brooks’s core argument:

It turns out that governance, the creation and execution of policy, is hard. It requires acquired skills. Most of all, it requires prudence.

What is prudence? It is the ability to grasp the unique pattern of a specific situation. It is the ability to absorb the vast flow of information and still discern the essential current of events — the things that go together and the things that will never go together. It is the ability to engage in complex deliberations and feel which arguments have the most weight.

How is prudence acquired? Through experience. The prudent leader possesses a repertoire of events, through personal involvement or the study of history, and can apply those models to current circumstances to judge what is important and what is not, who can be persuaded and who can’t, what has worked and what hasn’t.

Of course, there are differences between the importance of experience in the strictly political realm as opposed to the judicial realm. But Brooks’s basic template is applicable to the debate over judicial experience.

Is prudence, as Brooks discusses it, attainable without prior judging experience? Of course. And there are many justices who are considered “great” justices who had no prior judging experience. But those with prior experience, particularly as U.S. Courts of Appeals judges, are accustomed to thinking about, wrestling with, and deciding federal legal questions containing constitutional and statutory issues — the same issues that come before the Supreme Court. They are more likely to possess a firm intellectual foundation for deciding a wide variety of legal issues that come before them. They are more well-versed in applying legal rules and standards to the facts of a given case. They have processed and decided a diverse set of cases that constitutes this rich “repertoire of events” of which Brooks speaks.  Judicial experience, and particularly U.S. Courts of Appeals experience, matters because it best prepares one for the work that a Supreme Court justice does on a day-to-day basis.


Book Review: A Giant of American Law (Reviewing Urofsky’s Louis D. Brandeis)

Louis D. Brandeis: A Life, by Melvin I. Urofsky.  Pantheon, Sept. 2009.  976 pp.

The politics and jurisprudence of Supreme Court justices have always been  spread broadly across the legal spectrum. Depending upon the descriptive phrase in vogue at the time, court members have been portrayed as conservatives, liberals, moderates, activists, strict constructionists, pragmatists, originalists and countless other terms that often attempt to oversimplify and label judicial beliefs. At any given moment in its history, the members of the Supreme Court have rarely found themselves in philosophical unanimity.

The nine justices currently serving on our highest court do share one common trait on their distinguished resumes. All came to the court from service on the federal courts of appeal. Indeed, to a man and woman, their judicial and federal experience far outweighs any legal background outside of the judiciary. While some of the current justices had private practice experience during their legal careers, it was their judicial background that was perhaps the most influential factor in their nomination and confirmation to the Supreme Court.

Depending upon one’s personal viewpoint regarding federal judicial experience as a sine qua non for selection to the Supreme Court, reading Melvin Urofsky’s Louis D. Brandeis: A Life, one cannot help but be struck by the undeniable fact that the political climate of the 21st Century means that a man like   Brandeis would have great difficulty being nominated and confirmed to any vacancy on the Supreme Court. Because Brandeis was an outstanding and passionate advocate for causes both popular and unpopular he had a lengthy legal record that would certainly give opponents of his nomination substantial ammunition to battle his occupying a seat on the Court.

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The Irrelevance of Kagan’s Modest Scholarly Record

How many scholarly articles (five, four or three) has Elena Kagan, the President’s Supreme Court nominee, published? How many years had she been an academic before becoming Solicitor General last year (eight, eighteen or something in between)? What does it matter?

In her career, Kagan has written a total of about 350 pages of legal scholarship that has been cited a total of about 600 times. People seem to disagree about what this scholarly oeuvre adds up to: close to nothing (e.g., Paul Campos), something quite substantial (e.g., Eugene Volokh), or not particularly remarkable in either direction (e.g., Erin Miller).

People also disagree about which of her various pieces count as major articles (the foregoing commentators count three, four and five, respectively) and even disagree about how to define her years in the academy (eight, netting out all government and decanal service, or as many as 18, dating from her first appointment).

There is no mystery about what Kagan has published—a full list including every sort of piece appears at the SCOTUS site; a more selective one appears at the Harvard Law site; another appears below. Disagreement concerns what it means—like the couple receiving marriage counseling in Woody Allen’s Annie Hall.

In my view, as a scholarly record, though it warranted awarding promotion and tenure to a junior faculty member, it would not warrant offering Kagan a lateral tenured appointment at most national law schools in the country today.  But that opinion and the record are simply irrelevant to the question of her qualifications to serve as Associate Justice of the Supreme Court of the United States. Read More


Is Judicial Neutrality Possible? A Response to Lawrence Solum

Earlier today, I posted my thoughts about how to fix the Supreme Court nomination process, and I wrote:

We all know that no judge is neutral or a mere umpire. We all know that the Supreme Court doesn’t divine some objectively true meaning of the Constitution or the laws it interprets. We all know that ideology has some effect on judicial decisions. And we all know that judges don’t find the law but make it.

I also repeated the frequently stated epithet, “we’re all legal realists now.”  Professor Larry Solum has taken issue with my argument:

Judges can choose whether to decide cases on the basis of their own first-order normative beliefs about how cases should come out–or they can choose to adhere strictly to the directives contained in authoritative legal texts.  Legal cultures can encourage and reward an instrumentalist approach to law, or they reinforce formalist practices and values.  Judges can choose to exploit and expand legal underdeterminacy to create space for the expression of their own preferences through the law–or they can attempt to cabin the zones of underdeterminacy by acting on the basis of the widely shared and deeply held norms of the political communities that produce the laws.

Not all of us believe that “no judge is neutral.”  Not all of us believe that judges should make the law rather than apply or discover it.  Not all of us are legal realists now.

When I say that no judge is neutral or that ideology has some effect on judicial decisions, I’m not making the simplistic Jerome-Frank-style legal realist argument that all law is ideology and politics.   Rather, I’m claiming that pure neutrality isn’t possible.  Solum proposes a choice between (1) deliberately injecting preferences into law (instrumentalist) or (2) trying to act on the basis of widely-shared norms (neutrality).  But this isn’t the choice I have in mind.  I don’t think that judges should be purely instrumentalist.  I think that neutrality is a laudable goal and judges should avoid overtly deciding on the basis of their ideology.  So like Solum, I believe that (2) is the better choice, and I hope most judges strive for (2).

But it is also the case that ideology does play a strong influential role even in (2), and pure neutrality isn’t possible.  This doesn’t mean that neutrality shouldn’t be a normative goal and that judges can be better or worse in this regard.  But it does mean that judicial ideology matters, that it has an influence no matter how neutral a judge tries to be.

Rhetoric by judges that they’re “neutral” or being an “umpire” doesn’t seem to correlate particularly well to whether they are in fact really neutral or an umpire.   It is easy to master the rhetoric of formalism, but the rhetoric is empty.  So are the terms “activism” and “restraint.”

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How to Fix the Supreme Court Justice Confirmation Process

There are few defenders of the Supreme Court Justice confirmation process.  Every time it occurs, we go through a charade of hearings, where candidates are coy about their positions on most issues and talk about “neutrality” and being a mere “umpire.”

Who are they kidding?  We all know that no judge is neutral or a mere umpire.  We all know that the Supreme Court doesn’t divine some objectively true meaning of the Constitution or the laws it interprets.  We all know that ideology has some effect on judicial decisions.  And we all know that judges don’t find the law but make it.

The fact that “we’re all legal realists now” makes the Supreme Court Justice confirmation process a political morass.  It has also resulted in presidents picking candidates for the Court who are young and who lack an extensive paper trail on hot-button issues.

It used to be possible for the truly great jurists of their generation to be appointed to the Supreme Court, a capstone to their careers.  But now it’s no longer possible because they are likely to be older and have taken positions on too many controversial issues. I think this is a shame.

How do we fix the process?

1. We need term limits for Supreme Court justices.  Kagan could conceivably be on the bench for 40 years.  That’s an absurd amount of time.  Nobody should be in a position of power for that long.  Term limits will prevent the trend toward picking younger people for the Court, and allow more seasoned jurists to serve on the Court as a capstone to their careers. I suggest a term limit of 10-15 years.  That’s more than enough time.

2. The Constitution is too hard to amend.  It’s virtually impossible.  Of course, we don’t want to make it too easy to amend (i.e., we don’t want to emulate California).  But now it is so difficult that trying to amend it is a fool’s errand.  This makes the Supreme Court have too much power, for it really becomes the final word on many issues.  Making the Constitution easier to amend will make Supreme Court decisions less powerful.  If a supermajority doesn’t like a Court decision, the Constitution can be amended.  But right now, the best chances of reversing a Court decision are to hope for a change in Court personnel.

With term limits and a Constitution easier to amend, the appointment of Supreme Court justices will lack the titanic stakes that the process currently has.   Right now, there simply is way too much power in the hands of people who can sit on the Court for an entire generation and make decisions that are effectively impossible for the People to reverse.


Mike Allen Predicts 65 Yes Votes for Kagan

In today’s Playbook, Mike Allen (of Politico) predicts that Kagan will receive 65 votes in favor of confirmation. Part of the basis for his prediction comes from the roll-call vote on her nomination for Solicitor General. Seven Republicans voted in favor of her SG nomination:  Coburn (OK), Collins (ME), Gregg (NH), Hatch (UT), Kyl (AZ), Lugar (IN), and Snowe (ME). The vote was 61-31 (7 senators — 4 Dems, 3 Repubs — did not vote).

While the vote on Kagan’s SG nomination can help guide a prediction on the vote for her Supreme Court nomination, let’s remember that voting for a lifetime appointment on the Supreme Court and voting for a political appointment in the executive branch are two entirely different beasts. In short, we should not assume that because a senator voted for Kagan for SG that s/he will definitely vote for her Supreme Court nomination. To be fair, Allen does not automatically assume that all 7 Republicans who voted for her SG nomination will vote for her Supreme Court nomination. But of the 7, he predicts that Coburn, Hatch, and Kyl will vote no and the remaining 4 will vote yes.

Christopher Snow Hopkins of the Ninth Justice has written a compelling article on this topic. Sen. Hatch’s and Specter’s remarks — quoted from the article below — are particularly relevant:

Sen. Orrin Hatch, R-Utah, promised a thorough evaluation of Kagan’s legal career, as well as her judicial philosophy, which he identified as “the more important qualification.” But he cautioned that his support for Kagan’s nomination to solicitor general last year was no guarantee of “her qualifications for the Supreme Court or my obligation to support her.”

Sen. Arlen Specter, D-Pa., who voted not to appoint Kagan as solicitor general, said that he would consider voting for her this time around depending on her testimony on such issues as executive power, warrantless wiretapping, voting rights, congressional rights and a woman’s right to choose.

“I voted against her for solicitor general because she wouldn’t answer basic questions about her standards for handling that job,” he said. “It is a distinctly different position than that of a Supreme Court justice.”


Kagan and Executive Power

Much of the elite discourse regarding Kagan’s nomination has centered on the military recruiters/Solomon Amendment issue, Kagan’s lack of judicial experience, her scholarly record (some calling it rather thin), and her views on executive power. SCOTUSblog has summarized (see here as well) many of the immediate reactions. Conservatives are critical of the first two items, while many liberals are concerned about Kagan’s views on executive power, worrying she is too willing to grant the executive branch broad discretion in areas such as questioning terrorism suspects. In short, liberals worry that Kagan will propagate the Bush-Cheney vision of executive power.

David Fontana has written an interesting opinion piece in Politico about what we might expect from Kagan on issues of executive power. Fontana’s article will certainly not alleviate concerns that liberals have about Kagan.