The Consequences of Misleading the Judiciary Committee
posted by Mike Dimino
Edward Lazarus’s column on Findlaw this week discusses the constraints Chief Justice Roberts and Judge Alito have placed on their behavior on the Supreme Court by their Judiciary Committee testimony. Specifically, Lazarus argues that should Roberts and Alito turn out to be more doctrinaire than the moderate conservatism displayed in the hearings, the consequences would be “longstanding and grave.” (Lazarus does not elaborate on the nature of those consequences, which could range from possible impeachment, to restrictions on the Court’s power by legislation, to a loss of confidence among members of the public, to demands for even more specific promises from future nominees, etc.)
I am not confident that Lazarus is correct as a general matter, though he may be as to his principal example — voting to overturn what is left of Roe v. Wade. I see little evidence, for example, that Justice Ginsburg is suffering any ill effects from Congress though she has done little on the Court to justify her image in 1993 as a “moderate liberal.” Similarly, though all nominees routinely profess to understand that the law is more than their personal policy preferences, once on the Court they routinely break that promise. (As Justice Scalia said in a related context, campaign promises are, by long democratic tradition, the least binding form of human commitment. See Republican Party v. White, 536 U.S. 765 (2002).)
If I am correct, there could be at least three reasons there are few repurcussions thus far for reneging on Judiciary Committee commitments. First, Republicans may lack the guts to use ideology in the way that Senate Democrats do. We’ll see whether this is true the next time a Democratic President nominates a potential Justice, but the Republicans’ acceptance of Ginsburg indicates it might be true. Second, a determined minority can prevent Congress from taking just about any official action, so even opposition to a Court decision can be expected to result in no action so long as at least one committee in one house supports the Court’s decision. And of course impeachment is practically impossible. Third is the most obvious: Because the statements nominees make are so general, no behavior could constitute breaking that “promise.”
January 22, 2006 at 6:18 pm
Posted in: Current Events
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Responses (8)
Dave Hoffman - January 22, 2006 at 7:20 pm
Mike,
I’m a little confused by your description of Justice Ginsburg’s supposed turn away from her promise(s). In terms of the general tenor of her ideology, do you mean that she has been more conservative than the “moderate liberal” label suggests? I’d agree with that, but I can’t imagine that the Republicans in the Senate would complain. If you mean that she is more “liberal” than “moderate liberal,” I’d have to say I disagree.
SCOTUSblog - January 22, 2006 at 8:51 pm
Blog Round-Up – Sunday, January 22nd
In nomination news: Concurring Opinions has this post on the consequences of misleading the Judiciary Committee in the judicial nomination process. The Fix, the Washington Posts’ politics blog has this post on pro-Alito ads targeting two Senate Democra…
SCOTUSblog - January 22, 2006 at 8:52 pm
Blog Round-Up – Sunday, January 22nd
In nomination news: Concurring Opinions has this post on the consequences of misleading the Judiciary Committee in the judicial nomination process. The Fix, the Washington Posts’ politics blog has this post on pro-Alito ads targeting two Senate Democra…
SCOTUSblog - January 22, 2006 at 8:53 pm
Blog Round-Up – Sunday, January 22nd
In nomination news: Concurring Opinions has this post on the consequences of misleading the Judiciary Committee in the judicial nomination process. The Fix, the Washington Posts’ politics blog has this post on pro-Alito ads targeting two Senate Democra…
Mike Dimino - January 22, 2006 at 11:45 pm
If Justice Ginsburg is not a liberal, then the bar for that characterization has been set way too high. I suppose I understand the response that she is no Brennan or Marshall, and that is true — she is far less open than they were about the revolutionary changes they favored in the law. But no area within my realm of study has found her on the conservative side. Perhaps there are some — Dave’s expertise in business law may give him insight into this that I lack.
As far as constitutional law goes, though, calling her moderate is rather like saying the Justices Scalia and Thomas are moderates because they are not as conservative as Justice McReynolds was. Labels are always somewhat artificial, but within early 21st Century jurisprudence, Justice Ginsburg is liberal and Justice Thomas is conservative.
To be clear, though, I do not mean to imply that Justice Ginsburg made any specific “promises” to be moderate-liberal. That was, however, the general understanding of her philosophy among Senators and newspaper editors. For the last point, see the discussion in Epstein & Segal, Advice & Consent.
Maryland Conservatarian - January 23, 2006 at 12:39 am
Misleading? You mean like taking a job as a Supreme Court Clerk and kind of not letting everyone there know you were writing a book about them even though traditionally people didn’t do that sort of thing…is that the kind of misleading Mr. Lazarus means? wonder how “longstanding and grave” the consequences from that would be?…but I agree with Mike – no real promises here to break…..besides, wouldn’t impeachment be off the table – one couldn’t be impeached for how one voted and I don’t think impeachment would be applicable for acts performed before one sits on the Court (i.e. during the hearings)
Armando - January 23, 2006 at 9:22 am
I to am puzzled by your reference to Ginsburg. Your context was a discussion of consequences for dissembling to the Senate Judiciary Committee and your insertion of Ginsburg into that discussion clearly implied dissembling by HER. If your comment disavows such an assertion, I beleive you should edit your post. As it stands it reads as quite a smear against Justice Ginsburg.
As for what qualifies as liberal or moderate, your reaching to Justice McReynolds as the “Conservative” comparable to the liberalism of Justice Brennan is very telling it seems to me. Heck, why not reach back to the Taney Court to really get Scalia off the hook.
In HIS time, McReynolds was an extreme Conservative. Would a Justice Scalia in McReynolds’ time have voted differently than McReynolds? We can only speculate and that is the point of course. Justice Brennan sat on the Court less than twenty years ago. To consider him a benchmark for contemporary Justices makes some sense. And you accept that Ginsburg is more moderate than Brennan.
By contrast, there is no Justice remotely comparable to Scalia and Thomas in modern times. Certainly that is not, in and of itself, wrong. But your defense of your labels by reference to McReynolds surely is specious.
Scalia is an extreme conservative today. Ginsburg is a moderate liberal today. It seems silly to me to try and deny that which appears obvious to me.
no one - January 23, 2006 at 12:04 pm
I confess I’m confused, too. On what issues has she shown herself to be to the left of say, Stevens? And are there more examples of that than the reverse? For example, Stevens and Ginsburg differed in Eldred (the copyright extension case), but there it was Stevens and Breyer dissenting, while Ginsburg wrote for a majority that included all of the conservatives.
And even if Ginsburg were the “most liberal” (however one defines the term) justice on the court, wouldn’t you still need to give separate evidence for the proposition that her views are not those of a moderate liberal? I don’t recall her being alone on any issues that might be defined as far left (e.g., the right to die case from 1997 was unanimous in rejecting the proposition that there is constitutional right — one may suspect that Brennan or Marshall, by contrast, might have found one). What am I (and others commenting above) missing?
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