did you happen to miss minty’s response above which quoted several specific examples over time?
Perhaps you missed it, december, so I’ll quote it again:
Also, you don’t get to write a whole lot of majority opinions when your vote is to abandon precedent. Bork wrote a lot of concurring and dissenting opinions in his time on the D.C. circuit, and those opinions were completely immune from review.
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*Originally posted by wring *
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Yes, I had missed it. Thanks for pointing it out.
Minty’s points are indeed interesting. What are we to do with establilshed decisions that work well in practice, but which are based on terrible judicial reasoning? Roe v. Wade and Griswald are examples. I, for one, like those laws a lot, but their Constitutional reasoning could equally well justify killing 1-year old babies in private.
Actually, Griswold was a natural extension of the long-recognized substantive due process right to raise your children as you see fit. I don’t think it was bad legal reasoning at all. Roe was a bit more of a stretch, although still defensible. But that’s getting way far away from the OP. I’d be happy to contribute if you want to start a new thread on the topic, however.
As to the OP: I agree with most of my co-counsel, who really don’t give a rat’s ass if the ABA has an “official” role in the judicial selection process or not.
I do agree that the ABA takes too many “political” positions, and I think it’s inappropriate for a professional organization regardless of the position taken. They still get money on my behalf (the firm pays for it), but it’s only because of the many professional resources they provide. With the law’s reach into all corners of modern life, it has proven far, far too easy for the Bar to arrogate to itself the right to comment on everything. It undermines the Bar’s ability to have its opinions heard on issues that matter most to the profession, such as attorney qualification, access to counsel, and (drumroll) judicial selection.
Now then, as to Bork: I was happy when his selection was defeated, but I thought much of the rhetoric was intellectually dishonest - particularly the part about “disrespecting precedent.” “Respect for precedent,” as applied to the Supremes, is something of a humbug, since it begs the question of whether the precedent is worth respecting. The conservative position (with which I often disagree) is that many of the most prominent decisions of the last fifty years are as illegitimate as Plessy v. Fergunson, and as deserving of overruling. “Precedent respecting” became a rhetorical device whereby Bork’s liberal opponents attempted to bootstrap their political disagreement a loftier, more neutral-sounding realm.
Griswold is a case that suffers from particular conservative derision. Douglas wrote the Court’s opinion, but the copy I can find on the web (the Legal Information Insitute at Cornell) doesn’t allow me to tell exactly how many Justices signed on. Regardless, three justices concurred and two dissented, and it appears there were five separate opinions. My law-school recollection is that no opinion commanded a majority, scarcely surprising since Douglas’s prose remains among the most unfortunate ever to have emitted from the Bench:
“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
To which conservatives (and many non-lawyers who actually agree with Griswold’s conclusions) inevitably reply: Penumbras? Emanations? WTF? Who the hell are you to harness some sort of nebulae into force of law?
And everyone’s fought about it ever since.
BTW, the fact that Bork’s appellate decisions were rarely overturned isn’t revealing of much of anything. Although there are appellate benches that get a bit out of hand (the 9th, covering California and much of the West, goes a bit wacky-left, and the 4th, covering the territory from Maryland to South Carolina, goes a bit wacky-right), there just aren’t many opportunities for appellate judges to attempt Grand Philosophic Changes, at least in consitutional law. When controversy arises, it’s usually because of statutory interpretation (the meat-and-potatoes of appellate court activity), over which they do exert quite a bit of influence.
xtnjohnson:
According to Peter Irons, there were six opinions: Douglas writing for the Court (and joined in full by Clark), finding a penumbra of rights in the First, Third, Fourth, Fifth, and Ninth Amendments; Harlan concurring based on the Fourteenth Amendment, rather than on Douglas’s “emanations”; Goldberg (joined by Warren and Brennan) resting his concurrence entirely on the back of the Ninth Amendment, opening the door squarely for Roe; White joining the majority (but not Douglas’s opinion) in striking down Connecticut’s law based on its “total nonenforcement”; and Black and Stewart writing separate dissenting opinions (and joining in each others’).
This is what Irons has to say about Douglas’s language:
Irons then goes on to mention that Douglas did not rest any part of his opinion upon the Fourteenth Amendment because he was fearful that an invocation of the Due Process Clause would resurrect the “substantive due process” doctrine of Lochner, enabling future conservative majorities the justiciable latitude to strike down New Deal activism.
Interesting stuff.
Is the American Bar Association some sort of government organization? If not then I don’t see why their endorsement should be required.
Marc
Missing from the various accounts of the ABA’s perfidy in evaluating judicial candidates is a listing of all the supposedly deserving but ideologically impure would-be judges who were blackballed, based on biased ABA opinions. Bork seems to be the poster child for the anti-ABAers, but his fringe views made him a legitimate target.
The only bad thing about ending the ABA’s semi-formal role in advising on judicial appointments would be if the Senate became even more squeamish than it already is about deep-sixing bad appointments. But they’ll still have ABA opinions to point to as backup, should they decide to show a little backbone.
Good point. Also missing is a listing of non-deserving judicial candidates who were given favorable ratings by the ABA. Conservatives often complain about certain liberal judges. It would be interesting to review how the ABA rated them.
The ABA has been given a unique status to review and rate judicial nominees. Ideally, a decision about whether to whether to continue their status would would be based on an independent evaluation of how accurate all their ratings have been. In the real world, I dunno…
What’s the big deal here? The ABA does not have institutional power over the selection and nominating processes; they only give ratings with which anyone may disagree with impunity. For Bush to say he’s going to ignore them has the same meaning as the Oscars committees saying they’re going to ignore Roger Ebert’s thumb. If the ABA ratings have had a particular ideological slant to them, that has already been taken into account by those who DO have institutional power here. All Bush seems to be doing is expressing pique over a group he doesn’t like.
Pity - I’d like to see the ABA back in action. The multi-colored ball, the huge Afros, the ridiculous uniforms, franchises moving every year … it was fun while it lasted.
All I can say is “Bah!” It is not something of a humbug, and it is easily proven - how many times have the Supremes overturned one of their own precedents? I can think of Brown v. Board of Education, that New Deal wheat case (Wickman?), and that’s all I can recall. I’m sure there are more, but my point is that it is extremely rare. A common characteristic of almost every Justice, past and present, liberal and conservative, is respect for precedent. Hell, the reason that mean old conservative O’Connor gave in Casey for not overturning Roe was stare decisis.
And precedent is just as important to conservatives as to liberals. For every Roe, there is a Lopez. Or, do you want a liberal majority on the Court overturning the Rehnquist Court’s Takings Clause jurisprudence?
Both sides think that there have been atrocious Supreme Court decisions, and both sides are right. Both sides want the decisions they consider “bad” overturned. Both sides forget that if overturning precedent becomes acceptable, their “good” decisions are also vulnerable. And for the rest of the country, instability in the law is bad, period.
Sua
According to the President of the ABA, between 1960 and 1997, the ABA had rated 26 nominees for various federal courts as “not qualified”. 23 had been nominated by Democratic presidents, and 3 by Republican presidents. Nasty liberal bias there.
I’m not changing my position - the ABA need not, and probably shouldn’t, be officially involved. But y’all should base it on the fact that lawyers are self-interested (outside of ideology) in the selection of judges, not because of an alleged liberal bias in the ABA’s evaluation process.
Sua
Actually, I regret having made the hypothetical comparison between the ratings that would be given to Tribe and Bork. The Bork nomination was unique in that a huge battle was launched over it by liberal interest groups and politicians. (Actually, not so unique, considering Thomas, Tower, Ashcroft et al.) This had the effect of riling up partisan passions, and skewing the result. I suspect that were either Bork or Tribe to be nominated in a less heated atmosphere they would be unanimously given the highest qualifications. (I think one of the sitting SC Justices at the time - a liberal, IIRC - said that he didn’t think he didn’t think there was any standard by which Bork was unqualified, or something to that effect).
The point is that the Constitution is more important than jurisprudence. We shouldn’t have judges adding to the Constitution. See Bork’s book Slouching Towards Gomorrah (the chapter on the supreme court) for more details.
The justices should be interpreting or striking down law, not creating it. There is no balance to the SC if they legislate from the bench. And judicial fiat is just as dangerous to liberal ideals as it is to conservative ideals.
IMO Roe v. Wade should be overturned, because it is based on finding things in the Constitution that aren’t there. If an amendment is needed to fix that, then so be it, but the SC shouldn’t be creating law.
Sua: West Coast Hotel overturned Lochner, in practice if not explicitly. And many decisions have modified previous decisions with the effect of blunting or changing their effect–were you looking specifically for decisions which state, “This overturns such-and-such v. whosit?”
OK. Rich white guys come to your mind. Do you have any support for your proposition that the ABA is conservative? Or that it’s liberal, for that matter? Or the average age of an ABA member? What, exactly, do you know about the ABA? This thread is an interesting debate, but you’re just throwing out assumptions.
And Bork, through his application of original intent, wouldn’t be legislating from the bench?! As we all learned in Florida, discerning intent is a highly subjective thing. Furthermore, the whole basis of this discussion is an example of the Supreme Court adding to the Constitution - in Marbury v. Madison, the Supreme Court created, without constitutional support, its own authority to interpret the Constitution. Does Bork think that Marbury was wrong? If yes, then he would be ineffective, recusing himself from all Supreme Court cases involving constitutional interpretation. If no, then he is, er, um, inconsistent.
I disagree slightly - Roe shouldn’t have been decided the way it was. However, the principles of stability and consistency now mandate that it not be overturned by the Supremes.
Gadarene - yes, many Supreme Court decisions have been abrogated in practice. However, at least in theory and usually in fact, the facts of the later case were sufficiently different from the earlier one to allow, or at least justify, a different result.
Sua
Damn that Marbury v. Madison! Where the hell did the Constitution say the Supreme Court could interpret the Constitution anyway?
Hmm, is that the same Bork who wanted to tack the words “but only if the speech or press is about politics, or possibly morality and science” onto the First Amendment guarantee of freedom of speech and the press? :rolleyes:
Examples, please? I’ve read many of the cases I suspect you’re upset about, and I ain’t taking your unsupported word for it.
Hey Sua, I like your Marbury example. 
Opposite statistics come from an article by Melissa Seckura:
http://www.nationalreview.com/nr_comment/nr_comment032101b.shtml
“Ratings from the Committee show exactly how politically and ideologically divided the ABA evaluation process is. Out of fourteen judges nominated by Republicans, only three received a “Q for qualified” ranking: Ralph K. Winter, Clarence Thomas, and Alice Batchelder. The other 11 judges received a split rating of “Q for qualified/NQ for not qualified”: Richard Posner, Frank Easterbrook, John Noonan, Deanell Reece Tacha, Laurence Silberman, James Buckley, Stephen Williams, Jerry Smith, Alex Kozinski, J. Michael Luttig, and J.L. Edmondson. Out of 14 judges considered Democrat, eight received a “WQ for well qualified” ranking: Diane Wood, William Fletcher, Mary Beck Briscoe, Patricia Wald, Abner Mikva, Judith Rogers, M. Blaine Michael, and Martha Daughtrey. Three received the “WQ/Q” ranking: Guido Calabresi, Karen Nelson Moore, and Harry Edwards. The three remaining judges received the “Q” ranking: James Dennis, Stephen Reinhardt, and Charles “Bud” Stack. Not one Democratic judge was deemed unqualified. Even the most distinguished GOP-nominated judges received split ratings.”
I have no idea how to reconcile these two opposing sets of statistics.