You are equating “requirement” with “line of inquiry.” Judicial philosophy has been a line of inquiry; it has never previously been a requirement.
I’ve read both these books. I agree that they do lay out detailed judicial philosophies. However, Bork and Scalia were both law professors. They published in journals. They are noted for having well-developed, well-thought-out judicial philosophies.
I think Bork and Scalia are exceptions. I suspect that most lawyers do not have that kind of well-developed personal judicial philosphy. That’s why I invited you to describe what it would look like for Breyer or O’Connor. I suspect that it can’t be done.
Spare me. Bork was denied his seat precisely because of his philosophy.**
Don’t you think having a well-thought out vision of how the Constitution should be interpreted is important for an appellate judge? Especially for one sitting on what is easily the second-most important appellate court in the US behind the SCOTUS?
Imagine this exchange:
SENATOR: Mr. Candidate, what is your view of how the commerce clause should be interpreted?
CANDIDATE: Golly gee, I’ve never given it much thought!
**
Breyer and O’Connor both had judicial experience in the state courts of New Hampshire and Arizona, respectively. Their views could be gleaned from there.
On the contrary, the Bork won easy approval from the Senate as an appellate court judge, although his philosophy was already well-known from his publications. It was only at the SC level where his philosophy was a problem.
Furthermore, I didn’t say that certain extreme philosophies might not invalidate a candidate. I said that not having a philosophy or not divulging one had never invalidated a judicial candidate, especially below the SC level.
Well, no. I’d rather have an appellate judge who sets out to follow precedent, the Constitution and the laws.
First of all, AFAIK Estrada wasn’t asked this question. If he had been, he would have said (and perhaps he did say) that he would interpret the commerce clause in the light of existing SC decisions. No doubt he could have reviewed those decisions in detail, if asked. That’s the “right” answer, but it wouldn’t provide any real understanding of Estrada’s views. The way to get real insight would be to ask Estrada how he would rule on various pending cases involving the commerce clause. FBOFW that’s a question that ought not be answered.
You’re ducking my point. I claimed that Breyer and O’Connor don’t have well-developed, specific judicial philosophies, like Scalia’s and Bork’s. The fact that Breyer and O’Connor had lower court judicial experience in addition to their SC experience should make it even easier for you to describe their judicial philosophies, but you can’t do it.
Are you seriously going to cling to the position that judicial philosophy is not important for appellate court judges? Especially for one appointed to the D.C. circuit?
Look, the circuits are powerful. They interpret the Constition every bit as much as SCOTUS. They are bound by SCOTUS precedent, yes, but those precedents can be read expansively or narrowly.
Consider the busing decisions of the 1970s. Those were almost exclusively the product of appellate court jurisprudence. Don’t you think it might have been valid to ask a nominee “do you think the equal protection clause can be used to mandate busing for integration purposes?” **
Again, I must ask: should it? If it’s OK to vote down a nominee because he’s an extremist, it should certainly also be OK to vote down a nominee on grounds that he hasn’t given you enough data to determine whether or not he is an extremist.
(And again, spare me the “it’s never been done before” line; post-Bork, this is the way things are, plus most nominees have enough publications/opinions that the determination can be made without direct questioning.)**
And I like politicians that support mom, baseball, and apple pie. :rolleyes:
Saying you’ll “follow precedent” is meaningless. Any given precedent can be distinguished or applied to a new set of facts, as the judge’s philosophy allows. **
To hell it wouldn’t. A review of Estrada’s views on how a given case should be applied (narrowly contrued? broadly applied?) would provide tremendous insight into his philosophy. **
That obviously isn’t true. You can glean a lot about Scalia’s philosophy from his book, and he doesn’t say how he would rule on pending cases.**
I can’t do it without exhaustively reviewing their prior history. Sorry, I have a life, and that data is irrelevant since they aren’t up for nomination. The question was whether one can reveal one’s philosophy without violating the judicial canons of ethics regarding pending cases. I provided two very clear examples of how that might be done – Bork and Scalia’s books. Thus, I think I’ve demonstrated that such inquiry is possible without violating ethical norms.
Give it up, Dewey. Whether a judge has, or is capable of articulating, a coherent philosophy of constitutional interpretation, something that English and engineering students in my junior-year class in constitutional law for laymen 30 years ago were capable of doing, and doing clearly, doesn’t matter. What matters is that “W” nominated him and a bunch of people wrote him letters of endorsement, and, oh, by the way, from people who oppose affirmative action and such, he’s a minority, so any opposition to him must be racial discrimination.
Tell you what – I’ve got your résumé on file, and your real name suggests ethnicity of a sort. How about I take that around to half a dozen Raleigh law offices, state you’re not available to answer any questions, and when they reject you, you can sue them for discriminatory practices, on the basis that what’s sauce for a Federal appellate court judge is sauce for a transactional lawyer. Sound good to you?
Now we need letters of endorsement – think Cajun Man would help? December, I presume the principles you’ve espoused in this thread will lead you to furnish one.
I acknowledge that judicial phihlosophy is important. Will you acknowledge that judicial philosophy has not been required for confirmation at the appellate court level. Not even for the D.C. circuit.
Of course it is. My point is that for most nominees, that sort of thing is all one can do.
I agree. However we do adequate information to know that Estrada is not an extemist. He spent 4 years in a Democratic SG’s office. He got high recommendations from every Democrat there, except for one individual. Clinton would hardly have chosen a right wing extremist as his point man to represent him before the Supreme Court.
Your examples show that it can sometimes be done in certain special cases.
Philosophy has been increasingly viewed as important post-Bork, even at the appellate level. But most nominees have a body of work that allows their philosophy to be known long before nomination, much less confirmation.
Even if the Senate has been derelict in the past in viewing philosophy (a criteria you admit is important), that is no reason for them to continue in their dereliction.**
Special cases? Like what? Where the nominee has actually thought about the constitution and how it should be applied?
I would hope we would only nominate those “special cases.”
Can you prove this? Over half of the members of the D.C. circuit had no prior judicial experience. Please correct me if I’m wrong, but ISTM that lower court judicial experience wouldn’t necessarily display a judge’s philosophy. It might only provide a few clues. Bork’s experience as an appellate judge gave little or no clue as to extreme judicial philosophy divulged in his writings. I would assume that most nominees have not been law professors, either. So, what body of work could be used for this purpose?
Scalia and Bork are special cases because they were top law professors and each is a leader in promoting his particular school of constitutional interpretation.
Please. You don’t have to be a “top law professor” or a “leader in promoting [a] particular school of constitutional interpretation” to expound on your own view of the constitution in the same manner as Scalia or Bork. The fact that Bork and Scalia have described their philosophy in a way that does not violate the rules of judicial ethics proves that other candidates can do so as well.
Sorry, december, but Clarence Thomas’s position on abortion was indeed hidden - at least to the extent of trying to overturn Roe v. Wade. Do you not remember the hearings?
And frankly (once again), for you to suggest that the Dems are racist, and that this is a racist issue, is dirty politics of the lowest degree and reflects very poorly on you.
And finally, you brought up Bender…over and over and over again. So I suppose his “views” are biased and racist, too?
You know, you can’t just use sources when they support your views and then dismiss them when they don’t.
Yes, he never admitted a position. Nor did any other Supreme Court nominee that I can think of, except maybe Bork. But, Thomas was pretty well known to be a conservative. It’s unreasonable to think that Kennedy was comparing Thomas to Estrada because they both had unknown judicial philosophies. He was comparing them because Estrada is another minority Republican who could be a Supreme Court nominee.
Give me a break. This is politics. Republicans held up a number of Clinton Hispanic judicial nominations. Now Dems are filibustering Bush’s Hispanic nominee. Both sides are angling for the Hispanic vote.
Just partisan. All the other Democrats Estrada worked with have glowing praise for him. Even Bender had glowing praise for Estrada when Estrada worked for him. Bender (today) is the odd man out. Here’s the National Review’s discussion.
You may have misunderstood the intent of my post. I didn’t mean to use Bender as a source of praise; I was merely aiming to discredit his criticism.
For Democratic Senators to bring up Bender’s criticism but ignore the praise of all of Estrada’s other Democratic cow-orkers shows their bad faith. They are not trying to understand him. They are not trying to evaluate him. They are trying to defeat him.
No doubt one could find similar hypocrisy on the part of Republicans. Still, it’s an excuse for one more jab when the political and public relations battle resumes next week.
The Senate is back in session and so is the Estrada filibuster. The Democrats are now in deep political trouble, whether they win or lose, or so says the Washington Times.
One of the neat aspects for the Republicans is that they control the timing. They can keep the pressure on as long as it works politically. I suppose they could even withdraw the nomination and bring it back to the Senate floor closer to the next election. Karl Rove must be having orgasms trying to decide just how to best use the weapon he has been handed.
The Democrats whack at Estrada,
Like an overstuffed Christmas piñata.
…But, Latinos are sore,
…So, in two-thousand four,
Dem’s Hispanic vote will be nada.
For news of Bush’s meeting today with the Hispanic leaders, see
Ah, wonderful! So Mr. Bush will get an overwhelming majority of Republicans in Congress. Then, perhaps, they can outlaw all those other parties who must not be loyal Americans – after all, they didn’t support a wartime President (no matter that he was the one starting the war! – and we can have a good old one-party state.
And in God’s mercy, He will allow word of this to get to Stalin, Hitler, and Mussolini in the depths of Hell. And as a break from their tortures, they will share a belly-laugh. And Bob Taft will be grieving softly somewhere.
Seriously, that little excursion into hyperbole was a response to the classic phenomenon known to most GD habitués as “December spin” – after all, the Democratic party as you portray it cannot possibly be doing anything worthwhile for the country, and all good Americans should vote Republican and support GWB without question, or at least that’s the purport I read in the overwhelming majority of your political posts. So, pulling out the old slippery slope, I merely took it to its extreme.
In all seriousness, december, I’ve known some outstandingly good Republican men, a few personally: Congressmen John McHugh and Sherwood Boehlert come to mind, State Senators James Wright and Raymond Meier, and Assemblymen H. Robert Nortz and David Townsend. But the present stance of the party towards issues on which I feel strongly has led me to be very much in opposition to it and to its attempt to arrogate all American values to itself – and to find your attempts to castigate all opposition to it to be reprehensible. So if you want to play spinmeister, I’ll be glad to return your serves with my own spin on them.
With regard to the issue that prompted this thread in the first place, I find it very hard to understand that you have trouble differentiating between (1) the values expected of a competent lawyer and (2) the values expected of a competent judge – related but not identical, and between (3) the application of precedent and jurisprudence to particular issues, on which any candidate for the bench worth his salt will refuse to answer, and (4) the basic jurisprudential philosophy – how one reads the Constitution as foundational law generally, on which there are clearcut schools of thought, and the affiliation of a candidate with one of those schools is something that the authorities charged with naming a candidate to the bench ought to be apprised of. For example, Justice Scalia’s writing is scathing (not an unusual state for his work!:)) on the idea of “a living, growing Constitution adaptable to the changing circumstances of modern life” – and his jurisprudence reflects this. I’m quite confident that Mr. Reagan and his legal advisors took this into account in deciding to nominate him.
And it is my feeling that anyone who would feel that a candidate was rejected on the basis of his ethnicity when he and the President nominating him refuse to make any of his “spectacularly good legal work” available to the people engaged in confirming him and Senators have gone on record as objecting, not to him per se, but to confirming him in the absence of this information, is playing a racist card.
Maybe she spiked the coffee I’m drinking!