Confirmation Friendly Fire
posted by Tuan Samahon
It is a meme by now that Republicans will reflexively oppose any nominee of President Obama to fill the Stevens vacancy.
Of course, that observation may too narrowly describe a reflexive response equally applicable to Republicans and Democrats, conservatives and liberals. Consider a few of the left’s prediction bloopers.
1. Margaret Drachsler, the National Organization of Women, expressed her “grave concern” about the nomination of John Paul Stevens to the Supreme Court. NOW opposed his confirmation. See Nomination of John Paul Stevens to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 94th Cong. 78 (1975). NOW apparently has since kissed and made up with Justice Stevens given its latest press release, which calls him a “real champion” of women’s rights.
2. Kate Michelman, Executive Director, National Abortion Rights Action League (NARAL), did no better with her statement during the Souter confirmation hearing. “[I]f confirmed, Judge Souter would destroy 17 years of precedent and cast the deciding vote to overrule Roe v. Wade.” See Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 101st Cong. 363 (1991). Ironically, Souter cast a deciding vote in Casey to preserve the core holding of Roe v. Wade.
3. Jeffrey Levi, then Executive Director of the National Gay and Lesbian Task Force, probably didn’t anticipate a Justice Anthony Kennedy would author Lawrence v. Texas, the opinion that overruled Bowers v. Hardwick, when he opposed Kennedy’s confirmation and said he had “a far too narrow definition of the universe of Americans entitled to the rights guaranteed under the Constitution.” See Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 100th Cong. 426-27 (1989).
Oops. I guess it’s a good thing the justices (apparently) don’t hold grudges.
Perhaps the prediction problem results from the difference between horizontal and vertical stare decisis. Supreme Court justices don’t have to observe the decree of a hierarchically superior court, just the persuasive pull of a prior Court and the need to drum up five willing voters.
Perhaps it is the problem of jurisprudential drift and the effect elite opinion makers have on justices over time.
Or perhaps it is the fact that law is not merely politics by other means and law does have some constraining power.
April 10, 2010 at 5:11 pm
Posted in: Constitutional Law, Politics, Supreme Court
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Responses (11)
Michael Higdon - April 10, 2010 at 10:26 pm
Tuan,
Excellent post — very interesting!
Michael
Seth Finkelstein - April 11, 2010 at 1:30 am
Umm, isn’t there is a reasoning fallacy here? Nobody is right 100% of the time. Therefore, over *decades* of hindsight, one can always find instances of “So-and-so thought this, but they were wrong!!!” So what? What does that indicate about whether they were making a reasonable prediction given the information available at the time?
From another direction – look at all the predictions that were dead-on – Scalia, Thomas, Alito, etc.
TJ - April 11, 2010 at 3:15 am
Not sure how this reflects that “law does have some constraining power,” when the final example you give is the court expressly overruling a prior precedent. Also not sure how the interest group frenzy surrounding a nomination can possibly demonstrate that “law is not merely politics by other means.” Are you suggesting that Stevens, Souter and Kennedy voted the way they did in the cases you cite because they felt compelled by force of text or precedent, and contrary to their real policy preferences? Does anyone actually think that is what happened?
A far easier explanation is that the relevant interest groups simply read the nominee’s policy preferences wrong, or those policy preferences changed over time. That does everything to undermine, and nothing to support, the thesis that “law is not merely politics by other means and law does have some constraining power.”
Steve Parsons - April 11, 2010 at 6:34 pm
Tuan–
Positions taken by a particular liberal interest group that (supposedly) proved misguided are hardly analogous to the current knee-jerk opposition of the GOP to any nominee of Obama. Give us a single example of Democrats ever saying “No” before a nominee is even named. Then we might have some true equivalence.
Moreover, your suggestion that these interest groups were misguided in their initial oppostion is specious. Each of these groups had good reason to suspect the nominees given their track record at the time of the nomination. It isn’t that the interest group got it wrong, it’s that the nominee moved left from earlier positions and proved them delighted!
Back to Logic 101 Tuan.
Tuan - April 12, 2010 at 8:24 am
Seth (@ 1:30 am): Even a stopped clock is correct twice a day, but more to the point, these were the groups’ core concerns and they proved wrong in big ways. Their predictions may have been based on information then available. Thus my suggestion that (among other reasons) predictions may fail due to the difference between vertical stare decisis (i.e. their behavior as circuit judges under the influence of precedent) and horizontal stare decisis (i.e. their behavior as Supreme Court justices where they can overrule prior precedent and/or distinguish it without fear of reversal by a hierarchically superior court).
TJ (@ 3:15 am): Pick your theory of why predictions go awry. I offered several. If you dislike Casey and agree with Scalia’s criticism about the stare decisis analysis, perhaps the constraint of precedent theory doesn’t appeal to you.
Dear Steve (@ 6:34 pm): “(Supposedly)” proved misguided? In what ways were these groups not ultimately mistaken about their core constituent concerns?
I think you misunderstood the post when you say that these groups had good reason to be concerned and that therefore my observation is “specious.” I don’t doubt that some of these groups may have had reasons for believing what they did, that’s why I suggested, if you read carefully, one (possible) explanation, among others, for why prediction fails — that there is a difference between vertical and horizontal stare decisis (i.e. their behavior as circuit judges under the influence of precedent versus their behavior as Supreme Court justices where they can overrule prior precedent and/or distinguish it without fear of reversal by a hierarchically superior court).
“Give you a single example of Democrats ever saying “no” before a nominee is even named?” Based on what Republicans have said thus far, I’m not reading any of them as having committed to voting “no” to every nominee. That would also be politically stupid. Republicans are using the fairly standard “nominate someone in the mainstream” rhetoric and then waiting for a nomination before mounting opposition. That said, I’m pretty sure that the Republicans, like the late Senator Edward Kennedy (D-Mass), have floor speeches prepared on particular nominees that they are ready to read at a moment’s notice, say, within 30 minutes of the White House’s announcement. You wanted an example, how about this particularly famous one, the “Robert Bork’s America” speech delivered within minutes of the White House announcement of his nomination? (Before you or anyone else posts the claim that I think liberals were mistaken about Bork, that’s not my claim. My point is the speech could not have been prepared on the fly, it was prepared in advance.)
A.J. Sutter - April 12, 2010 at 9:05 pm
The fact that Democrats (including, among others, those who endorse deregulatory, pro-market, globalizing policies like Clinton, Gore, Summers and the members of Congress who voted to repeal Glass-Steagall) are today referred to as “the left” shows how much more polarized the political climate is today than it was in 1975. In 1975, the left was something very different. Even during the Reagan years, there was better blood between the White House and Democratic leaders in Congress than there has been since the 1990s. For those too young to remember, there wasn’t any Fox News in those days (nor CNN either, during most of the Reagan Administration). Your examples are too historically remote to be comparable to the current Republican intransigence.
A.J. Sutter - April 12, 2010 at 9:10 pm
(Correction: CNN went on the air in 1980. But fewer people had cable at the time, and no one really watched it until the later part of the decade. I associate it with the Gulf War and the Bush I years, whence my error.)
Nate Oman - April 13, 2010 at 9:01 am
Tuan: I’m late to this discussion, but I suspect that in part it has to do with the fact that NOW, NARAL, and other pressure groups have agendas other than policy outcomes, such as increasing support and donations. Sounding the alarm against a plausible demon, even if one is wrong, is a good way of whipping up support among otherwise apathetic donors.
AnonForever - April 13, 2010 at 3:08 pm
I know people supportive of these organizations like to point about times they were right with other justices. But these examples are important, because they devalue the viewpoints of these organizations. When they attack every Republican nomination (and as these examples show, they do), it gives credence to the viewpoint that either (a) their opposition is because the nominee is from a Republican administration or (b) they would oppose any Republican nominee to the Supreme Court, and think George W. Bush should have nominated Pam Karlan to the Supreme Court.
Both of these are equally damning, and the latter especially is probably true for the first part. And these past pronouncements were in fact called out to devalue the statements of NARAL and NOW during the Roberts and Alito hearings.
A.J. Sutter - April 14, 2010 at 8:56 am
FWIW, I don’t think any dire predictions about the Roberts or Alito nominations have been proved wrong so far.
Tuan - April 14, 2010 at 9:15 am
A.J. Sutter (@8:56 am): Yes, but that’s not the point. I’m not saying that interest groups will be 100% wrong. If that were the case, we could rely on the exact opposition of their predictions and therefore predict accurately 100%. The claim is that sometimes they will be very wrong. As for the counterexample re: Roberts, it is not as clear a case as you claim (see, e.g., http://www.slate.com/id/2169344/).
As to your prior post (@4/12 9:10 pm) that “liberal” today isn’t nearly what it used to mean in, say, 1969, you may be correct, but I think it’s fair to observe too (using the examples in the post) that in 1969 state prohibitions on same-sex sodomy were legal and there was no recognized constitutional right to privacy that encompassed abortion.
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