Can Ideology Constitute Extraordinary Circumstances? Some Scenarios.

[Gadarene]

The Senate should not focus on ideology. By “ideology” I refer to the specific political leanings of the nominee, and the nominee’s choice of which of the generally accepted judicial constructions and philosophy he follows.

“Generally accepted” is an interesting qualifier. I’ll explore that below.

*A) At his confirmation hearing, the nominee states his personal belief in an international Zionist conspiracy …

…and…

B) At his confirmation hearing, the nominee states that he is a member of the American Communist Party, but says that his personal views will not affect his jurisprudential philosophy.*

What does his prior judicial history reveal? If his previous judicial work reveals hints of bias, of course he should be rejected. Because these views are both extreme, and outside the realm of mainstream judicial thought, it seems to me that either they have influenced earlier work, or the nominee is truthful in saying his personal views do not affect his judicial work. I don’t believe in a stealth candidate waiting years for an outside shot at a Supreme Court nomination and carefully biding his time until then.

Let’s say the candidate has a limited prior judicial record, and that record reveals no hint of bias. Is it wrong to oppose the anti-Zionist or the Communist in that instance?

C) At her confirmation hearing, the nominee states her belief that men are biologically inferior to women, and calls for an expansive reading of the equal protection clause to rectify two centuries of gender inequity.

This is a basis for rejection, since the nominee has indicated that her personal view (objectively and demonstrably weak) WOULD influence her judicial views.

What if she doesn’t say anything about believing men to be inferior? What if she simply says that she believes the equal protection clause should be read expansively to treat gender as being as suspect a class as race? Is that so entrenched an area of constitutional law as to render her opinion wildly impractical?

D) At his confirmation hearing, the nominee states his firm belief that the Court, in the Slaughterhouse Cases, grievously misread the intent of the framers of the Fourteenth Amendment with regard to the privileges and immunities clause. Being a devoted originalist, the nominee states his intention to overturn the Slaughterhouse Cases at the first opportunity.

This is a basis for rejection. Respect for stare decisis is not required to be absolute, but a judicial philosophy that would overturn that many years of settled law - no matter how flawed the original ruling was - is wildly impractical.

Here’s where we start probing for the bright line, if one exists, between permissible bases for rejection (a wildly impractical judicial philosophy) and impermissible bases for rejection (ideology and generally accepted judicial philosophy). Take the above nominee and omit his stated intention to overturn precedent. The nominee simply says “I consider myself an originalist and I’m convinced, based on my research, that the Court got it wrong in the Slaughterhouse Cases as regards the intent of the framers.” When asked whether that means he would seek to reinsert the p & i clause into the constitutional dialogue, he says, “Precedent is precedent. My job is to interpret the law, not make it.”

Still a basis for rejection?

E) At her confirmation hearing, the nominee – a strong advocate of federalism and states’ rights – presents her learned belief that the Thirteenth, Fourteenth, and Fifteenth Amendments were not passed with the legitimate consent of three-quarters of the states. Therefore, she says, as a Justice she would treat these amendments as dead letters until they could undergo the Article V process anew.

Rejection justified under the wildly impractical standard enunciated above.

Same deal. The nominee says, “Look, I believe in the consent of the governed. Amending the constitution is the most difficult thing in the American political system, and for good reason. And the fact of the matter is that the Civil War Amendments were not passed according to proper Article V procedure, and states were unfairly bound by them as a result. But you know what? I’m down with Bruce Ackerman, what’s done is done, and it was a good outcome.”

Any problem there?

F) At his confirmation hearing, the nominee states his belief, in accordance with the constitutional text, separation of powers, and his personal principles of limited federal government, that the Administrative Procedures Act (the organizing and empowering statute for all modern administrative agencies) is an unconstitutional delegation of legislative and judicial powers to the executive branch. As a Justice, he would refuse to give any deference to agency adjudications, and would construe regulations as narrowly as possible, overturning all of them that strayed beyond the strict letter of congressional statute.

Rejection justified under the wildly impractical standard enunciated above, but with a personal round of applause from Senator Bricker.

Same deal. Everything goes except for the last sentence. (Rehnquist, you know, was a proponent of the non-delegation doctrine even into the 1980s.) Is it permissible to oppose someone based on their belief that the APA violates separation of powers?

G) At his confirmation hearing, the nominee states his belief in natural law, and says that the framers, who were godly men, intended the Ninth Amendment to be the respository of all natural law rights not explicit within the constitutional text. The nominee’s personal vision of natural law includes inalieable rights to choose whether to bear children, to choose whether to discriminate against others, and to be secure in one’s private property (including the choice whether to be taxed). He would give the Ninth Amendment content, and would rule from the bench, in accordance with these beliefs.

Will the nominee entertain questions about harmonizing his view of the Ninth Amendment with the explicit provisions of the Sixteenth Amendment?

Certainly. A common canon of constitutional construction is that when amendments are contradictory, the most recent is given effect. As to federal income tax, he’s got no quibble. Are his natural law beliefs grounds for rejection?

H) At his confirmation hearing, the nominee states that Brown v. Board of Education cannot remotely be justified by the originalist school of jurisprudence to which he adheres, and thus segregation is perfectly constitutional until an amendment to the contrary can be passed.

Will the nominee entertain questions about harmonizing his view of “originalism” with the explicit provisions of the Fourteenth Amendment?

Certainly. The framers of the Fourteenth Amendment had ample opportunity to desegregate schools in the District of Columbia and chose not to do so. Thus, had they intended the guarantees of the Fourteenth Amendment to encompass desegregation in education, one presumes they would have made it explicit. They didn’t. This nominee hastens to add that he thinks segregation is reprehensible, but that it should be a matter for the states until the Constitution can be amended with clarity. He also admits that he has no votes for his view and no cases or controversies are likely to come to the court that would allow him breadth to express or implement his view, so it’s almost certain to have no practical effect. Nevertheless, it’s what he believes as a legal scholar and he felt it would have been wrong to withhold or shade his sincere beliefs during his confirmation.

Grounds for rejection?

I) At her confirmation hearing, the nominee states that her considered interpretation of the Fifth Amendment’s takings clause (and its extension to the state and local governments through the Fourteenth Amendment) is that all regulations, to the extent that they deprive individuals of economic value, are unconstitutional unless just compensation can be achieved. Thus, a city that passes a zoning ordinance disallowing an adult video store from setting up shop must pay the owner of that store an amount equivalent to the expected revenue he loses as a result.

Rejection justified under the wildly impractical standard enunciated above.

You believe senators would be justified in opposing the brilliant constitutional scholar Richard Epstein, then?

J) At his confirmation hearing, the nominee states his intention to overturn Johnson v. McIntosh (1823), the Supreme Court case recognizing federal land title over Native American land title on the principle that Americans, having conquered the continent, were entitled to the spoils. The nominee says that, until he is successful in overturning this case, he will construe all statutes, regulations, and disputes as broadly as possible in favor of Native Americans, who he believes, as a class, to have been unjustly deprived of their sovereignty, their land, and their civil rights.

Rejection justified under the wildly impractical standard enunciated above.

Yeah, this one’s completely impractical. I just wanted the opportunity to mention McIntosh, which is one of the oddest and most far-reaching cases in American constitutional history.

Is it fair to say that you believe senators can validly oppose any nominee who a) has a political/jurisprudential/philosophical view that is not “generally accepted,” and b) states the intention to act on that view as judge? Would you say a strong minority view would constitute general acceptance? What about a view that few people hold but is no less sound than the dominant view?

Finally, I’d still love to get your take on my questions about a potentially racist nominee.

[Bricker]

@Gadarene

Let’s say the candidate has a limited prior judicial record, and that record reveals no hint of bias. Is it wrong to oppose the anti-Zionist or the Communist in that instance?

The value of an extensive record is that it permits a somewhat objective validation of the nominee’s claim that he will not let his admitted bias interfere with the exercise of his judicial function. The more limited the record, the stronger the case for opposition.

What if she doesn’t say anything about believing men to be inferior? What if she simply says that she believes the equal protection clause should be read expansively to treat gender as being as suspect a class as race? Is that so entrenched an area of constitutional law as to render her opinion wildly impractical?

No, it’s not. It’s obviously not the sort of candidate I’d nominate as President Bricker, but as Senator Bricker, I would not vote down a nominee simply on that basis.

Here’s where we start probing for the bright line, if one exists, between permissible bases for rejection (a wildly impractical judicial philosophy) and impermissible bases for rejection (ideology and generally accepted judicial philosophy). Take the above nominee and omit his stated intention to overturn precedent. The nominee simply says “I consider myself an originalist and I’m convinced, based on my research, that the Court got it wrong in the Slaughterhouse Cases as regards the intent of the framers.” When asked whether that means he would seek to reinsert the p & i clause into the constitutional dialogue, he says, “Precedent is precedent. My job is to interpret the law, not make it.”

Still a basis for rejection?

No. Assuming further questions clarify that “Precedent is precedent,” means a respect for precedent and not a simple truism, then that’s not a basis for rejection.

Same deal. The nominee says, “Look, I believe in the consent of the governed. Amending the constitution is the most difficult thing in the American political system, and for good reason. And the fact of the matter is that the Civil War Amendments were not passed according to proper Article V procedure, and states were unfairly bound by them as a result. But you know what? I’m down with Bruce Ackerman, what’s done is done, and it was a good outcome.”

Any problem there?

Nope. The guy has a point, actually. By the same token, historians may quibble about the precise legality of Ohio’s admission to the Union. As long as the discussion is on the historical level, and does not reflect any serious intent to challenge the Buckeyes’ rights as citizens, no biggie.

Same deal. Everything goes except for the last sentence. (Rehnquist, you know, was a proponent of the non-delegation doctrine even into the 1980s.) Is it permissible to oppose someone based on their belief that the APA violates separation of powers?

Same answer: respect for stare decisis intact, I’m cool with it.

I’ll tackle the remaining hypos in a bit…