Everyday Politics Blog

The Changing Nature of Judicial Appointments

By Scott Lemieux

Given the age and health of Justices Stevens and Ginsburg, there is a very strong possibility that President Obama will nominate two more Supreme Court justices.  (Or, given the changes in the political climate, perhaps one should say that he will nominate as many justices as are necessary to fill two slots.)   This returns us to the question of what kind of justices Obama is likely to nominate.   Another way to examine the question is through the typology put forward by the political scientist Sheldon Goldman.    Goldman points out that presidents have three different major agendas when they make Supreme Court nominations:

• Policy.  Presidents usually want to advance certain substantive policy, legal, and constitutional ends.   While even justices who presidents are strongly confident share their basic orietnation may not agree with every substantive outcome a president may desire, but justices selected on ideological grounds (contrary to what you hear from some pundits) tend to be quite predictable.
• Partisan.   As with cabinet appointments, presidents use Supreme Court appointments symbolically, to signal support to important constituencies.    Part of the reason some observers assert that Supreme Court justices can be highly unpredictable is that they forget that some appointments are made primarily to advance partisan rather than policy agendas.   Eisenhower's appointment of William Brennan to appeal to Roman Catholic voters and Reagan's appointment of Sandra Day O'Connor to fulfill a campaign promise made to women are important examples of a president priveleging partisan goals over policy goals.
• Personal.   In some cases, presidents will use judicial appointments to reward friends and political allies.   Most of Truman's appointments fall into this category, as do JFK's appointment of Byron White and Lyndon Johnson's appointment of Abe Fortas.    

These agendas are not, of course, mutually exclusive.   Presidents can be fairly confident that personal allies will support them on the issues most important to their appointer, although they may (White being the classic example here) be less reliable on other issues important to a President's constiuencies.    A shrewd political pick can allow the president more leeway in terms of ideology.

Recent presidents -- and Obama seems likely to follow this trend in general -- seem to have largely abdandoned the third category.    Obama's nomination of Sonia Stotomayor was a good example of a contempoary nomination in that it attempted to advance both partisan and policy agendas at the same time: appeal to two increasingly important Democratic constituencies with a historic appointment, while also advancing important policy goals.   

In future appointments, of course, Obama may have to make tradeoffs between various goals.   Particularly in light of an increasingly recacitrant Senate, it will be interesting see if he attempts to put forward a clear liberal candidate at the risk of a fight, or if he chooses a more moderate candidate in the hope of better serving other partisan interests.  

OBAMA AND THE COURTS II: THE STATE OF THE UNION CALL-OUT

By Scott Lemieux

I recently wrote about the possibility that Obama, facing a Supreme Court with a majority appointed by the previous Republican regime, might ultimately be embroiled in public conflict with the Court. I did not necessarily it expect to happen this quickly, but at last week's State of the Union Address President Obama expressed disagreement with the Court's recent Citizens United decision:

There is some disagreement about how unusual Obama's actions were. Certainly, there's nothing unusual about a President criticizing a Supreme Court opinion, and nor is it unprecedented for the President to engage in criticism of the Supreme Court during a State of the Union address. Other commentators have argued that the context of modern media -- having the Supreme Court in attendance on a live national television broadcast -- makes Obama's criticism of the Court new (and potentially disturbing.) The appropriateness of Obama's actions is, of course, a question of judgment. What will be more interesting to students of American government is whether or not conflicts with the Court will be a recurring pattern. It will also be interesting to see if Congress takes up Obama's suggestion to pass new campaign finance regulations to at least partially replace the legislation the Court struck down. But it's not surprising that some friction has emerged.

OBAMA AND THE COURTS

By Scott Lemieux

In my last post, I discussed the possibility that the Obama administration could represent a new, "reconstructive" era in American politics.   The political scientist Keith Whittington has noted that one characteristic of Reconstructive presidencies is clashes with the judicial branch.   Jefferson initiated substantial reductions in the power of federal courts he perceived as hostile, Jackson and Lincoln essentially ignored unfavorable Supreme Court rulings, FDR floated a court-packing plan to overcome a judiciary that struck down much of his first term's legislative agenda, and Regan promised to appoint judges hostile to many of the landmark rulings of previous Courts.  

The reason these patterns recur, of course, is that reconstructive presidents generally enter office facing a judiciary dominated by members affiliated with the previous regime.   This is, in substantial measure, true of the Obama administration --  before the retirement of Justice Souter 7 of the 9 members of the Supreme Court were Republican nominees, and the federal courts as a whole tilt strongly towards conservative Republicans.   And yet -- despite Democratic control by both branches -- Obama has moved more slowly on judicial appointments than his predecessor (who also faced an opposition party determined to slow the flow of nominees onto the courts.)

There are several explanations.   One is that Obama simply will not be a reconstructive president.    Another is that he may see fights as the federal courts as better resting on the back-burner until the debate over health care legislation has been resolved.    A final -- and to me, perhaps most convincing -- explanation is simply that the stakes for judicial appointments is less than it was for some previous presidents.   As Whittington notes, the increase of judicial power (that makes the kind of outright defiance more common in the 19th century all but inconceivable today)  has its source in the deliberate empowerment of the courts by the political branches.   One result of this is that the Supreme Court, while theoretically more powerful than it's ever bin, has avoided the kind of direct challenges to central parts of a current regime's agenda that the Court last tried during FD'Rs administration.    The Court's Raich v. Gonzales decision seems to signal that what some had called the Court's "federalist revolution" would be limited only to legislation of the most marginal importance.    Courts may be a low priority for Obama because he doesn't see them as a threat to the most important parts of his legislative agenda -- and despite the current Republican majority on the Court he may well be right. 

What Kind of Justice Will Sotomayor Be?

By Scott Lemieux 

The confirmation hearings for Barack Obama's first Supreme Court nominee, Sonia Sotomayor, begin today. The hearings are unlikely, however, to produce a great deal of useful information.    Since the defeat of Robert Bork -- who had been all too candid about his views on specific constitutional issues, particularly Roe v. Wade, which he would have been the fifth vote to overrule in 1992 had he been confirmed -- successful nominees have mastered the art of sounding smart while saying nothing.     As a result, in his very useful  recent book about the confirmation process, Christopher Eisgruber persuasively argues that the "Senate should evaluate nominees on the basis of their record and reputation, just as presidents do." 

But how to evaluate this record?   One method used by political scientists is Segal-Cover scores, which use newspaper editorials to predict the ideological direction of a future justice's votes.    Despite the relative simplicity of the method, it's quite effective at predicting future judicial votes.   According to her Segal-Cover scores, we should expect Sotomayor to be liberal by the standards of the current Republican-dominated Court, but a moderate liberal by historical standards:

  

Jeffrey Segal, who helped develop the system for grading nominees' perceived ideological leanings, told NationalJournal.com in early June that Sotomayor would likely have a similar score to Ginsburg -- around 0.68 on the 0-1 scale, with 0 being most conservative. If that's the case, Sotomayor would rank as one of the more liberal judges to be nominated since 1937, but she would hardly approach figures such as William Brennan or Thurgood Marshall, both of whom rate at 1 on the scale. Ginsburg currently ranks as the court's 17th most liberal nominee going back to the FDR administration. The 10 most conservative nominees during that period include four current justices: Antonin Scalia (he tops the list with a score of 0), Samuel Alito (0.10), Chief Justice John Roberts (0.12) and Clarence Thomas (0.16). Former Chief Justice William Rehnquist comes in third, with a score of 0.05, and President Reagan's failed nominee Robert Bork is up there as well, with a score of 0.10.

To reiterate what I said in my last post, I don't mean to suggest that Segal-Cover scores can, in themselves, provide all the necessary information. Dichotomous characterizations of Supreme Curt decisions leave out many possible nuances in individual cases, and how a justice is perceived before his or her hearings is a good but far from perfect indicator. Still, these scores have been useful in the past, and are likely to provide more useful information about Sotomayor than the hearings == at least if she's been well-coached.

How Unpredictable Are Judicial Appointments?

By Scott Lemieux

During the confirmation hearings for Sonia Sotomayor, President Obama's first Supreme Court nominee, you're almost certain to multiple pundits say that judicial appointments are unpredictable and often surprise the presidents who nominate them.    But is this true, especially in the modern era?   Consider this data from Lee Epstein and Jeffrey Segal's Advice and Consent, a very useful political science analysis of the judicial confirmation process:

I grant that no characterization of judicial or presidential ideology is beyond dispute -- certainly, if I were evaluating the expected ideology of presidents subjectively I would characterize Johnson as substantially more liberal than Kennedy or Clinton (which would actually make the fit between presidential and judicial ideology tighter.)   Similarly, with judges there may be room for dispute in close cases: whether one considers, say, White or Breyer more conservative requires judgments in coding opinions and weighting different aspects of judicial ideology that reasonable scholars could make the other way.  

Still, I think this is persuasive evidence that judicial appointments are in fact quite predictable, and countervailing anecdotal examples will tend to be exceptions that prove the rule.     It's true, for example, that Eisenhower picked two liberal icons (Brennan and Warren) and two relatively moderate conservatives (the second Justice Harlan and Potter "I know it when I see it" Stewart.)   But this is easily explained by the fact that Eisenhower was 1)a very moderate Republican 2)who didn't particularly care about the ideology of his judicial appointments.   There was certainly no reason to believe that Warren and especially Brennan would be conservative justices; they can't be considered "unpredictable."    I think the same can be said for President Reagan's pick of O'Connor or Bush's pick of Souter -- nether had records that would expect them to have been conservative justices in the mold of Thomas or Rehnquist.     And in a couple cases Republicans presidents made moderate picks not because they thought these picks were staunch conservatives but because the Senate rejected more conservative choices (Harry Blackmun wrote Anthony Kennedy a note early in his tenure welcoming him to the "#3 club" as they both were the third choice of their nominating president.)

I don't mean to overstate the precision of the conclusions that can be drawn from this data.   Especially since Sotomayor has spent most of her career as a federal appellate judge rather than in the executive branch or academia, there is some uncertainty about what kind of judge she will be.   She might be, if not a Douglas or Mashall, surprsingly liberal, perhaps to the left of Ginsburg.   Or she could be quite moderate, if perhaps not as centrist as Breyer.    But it would be an unprecedented upset if she were anything but a consistent member of the current Court's liberal wing.

Should They Look Like Me?

By Laura McKenna

In 2001, at the University of California at Berkeley, Sonia Sotomayor said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Sotomayor has been nominated for the Supreme Court by President Obama. She is under much scrutiny as the public tries to guess how she will rule on hot button issues, such as Affirmative Action, abortion, immigration, and church-state issues. That 2001 statement has been the focus of much controversy in the past couple of weeks.

In that speech, Sotomayor seems to say that her background enabled her to have a unique understanding of the nuances in cases that involved minorities and women. A judge with a different background would not be as sensitive. 

Rush Limbaugh has been quick to call her a racist for those remarks, but her comments can not be brushed off so easily. It taps into an old debate in America. Does race and gender influence decision-making?

In political science, we use the terms, descriptive representation and substantive representation.

Descriptive representation is the belief that political representatives should reflect the ethnic and gender composition of their constituency. A representative from the Harlem district should be black, while the representative from Utah should be white and Mormon. In addition, the entire body should be 50% female.

Substantive representation is the belief that representatives should reflect the political preferences of their constituencies, and their skin color and gender are irrelevant. An old white guy can effectively advocate for the needs of a poor, minority population.

In one study, Carol M. Swain explored this issue by looking at Congressional voting decisions. She found that liberal white members of Congress represented black interests as strongly as did black representatives. Liberal white Congressmen had nearly the same voting records as their black counterparts.

However, these findings may not necessarily be applied to Supreme Court justices. Decision making may be more simple for members of Congress than Supreme Court judges. They are able to mirror decision making of their colleagues, and they have case work and the need for reelection to keep them very attuned to their constituency's needs. A Supreme Court has few colleagues and no regular contact with the public. In that case, perhaps the need for descriptive representation is more critical.

This matter is far from settled. It will be interesting to see if this matter is discussed during the confirmation hearings over the summer.

Iowa's Same-Sex Marriage Ruling and Judicial Power

By Scott Lemieux

Earlier this week, the Iowa Supreme Court held in Varnum v. Brien that the state's denial of marriage rights to same-sex couples violated the state constitution.   This decision has, of course, generated hope among supporters of same-sex marriage rights and fear from opponents.   It is worth considering, however, that the power of courts to generate social change can sometimes be overstated.   Power and Purpose includes this data about school desegregation the Deep South after Brown v. Board of Education from Gerald Rosenberg's classic The Hollow Hope:

The Supreme Court's opinion had almost no effect on segregation in the Deep South before the Civil Rights Act was passed in 1964. Is it possible that the Iowa court's ruling will have similarly limited impact?

Probably not. As Rosenberg's data also indicates, Brown did have some impact when it came to desegregating border states where opposition to integrated schools was much less intense. His data indicates, in other words, not that the Court is powerless but that the Court needs either some collaborators in the political branches, or in some cases public officials who will not obstruct enforcement of a court's directives. The Iowa court will need collaboration, in that both houses of the Iowa legislature can vote in consecutive terms on a constitutional amendment that would go to a public referendum. Legislative leaders, however, are already indicating that such an amendment will be not on the table in the near future. It is therefore unlikely that the Court's decision will be overturned, and almost certain that it could not happen until at least 2014. (Massachusetts, although a somewhat more liberal state, could not get even 25% of its legislators to approve a similar amendment being put to a vote.)

The decision is unlikely to create an immediate wave of support for same-sex marriage, but it is also likely to confer such rights on Iowa's citizens for the foreseeable future. In the right institutional circumstances, courts can have (for better or worse) a significant policy impact.

Exceptions to the First Amendment

Last week, the Obama administration reversed an 18-year ban on news coverage of the return of war dead, allowing photographs of flag-covered caskets when families of the fallen troops agree.

The ban was put in place during the first Gulf War, because the administration felt that these images were too powerful. No Americans would agree to go to war, they argued, if they were forced to view those powerful images. Since national security requires that the public is willing to defend its nation, the press has not been able to publish these photographs for 18 years.

The First Amendment clearly states that Congress shall make no law abridging the freedom of speech or the media. The United States takes its First Amendment very seriously and, as a result, we have one the freest presses in the world. Yet, the Supreme Court has ruled that there are certain important exceptions to these freedoms.

Freedom of speech and the press does not permit libel. If a newspaper publishes lies about you that damages your reputation, you have the right to sue them in court and seek monetary compensation. The Courts have clearly ruled that obscenity is not permitted free speech. However, the language regarding the definition of obscenity is so broad that, in effect, there are few regulations on pornography.

The other exception to the freedom of the press involves national security. The press can be prevented from publishing information that could result in harm for our troops or endanger the nation as a whole. No newspaper would be permitted to publish the  coordinates of our troops in Afghanistan or provide information about our defense systems. However, the courts have had stated that the government must be careful to not overstep this right to withhold sensitive information. (See the Pentagon papers and The New York Times v. United States (1971).)

The images of dead coming home from war in flag draped pine boxes is  a powerful image. There's no doubt that that there is a dead person inside, and it resonates much more with the public than abstract casualty numbers. Some say that had the public seen the images of dead soldiers coming back from Europe, we would have never fought WWII.

Other say that the public has a right to see these images in order to better understand all the facts of the war. If the press is prevented from publishing these pictures, then they may be prevented from publishing other relevant facts. They also say that the photographs have no direct impact on national security, and therefore these restrictions endangered the First Amendment.

Drawing lines between permissible speech and dangerous speech is a constant challenge for the Supreme Court. Do you believe that the Obama administration made the right decision in this case?

THE OBAMA ADMINISTRATION AND THE COURTS

Scott Lemieux

Supreme Court Justice Ruth Bader Ginsburg was recently diagnosed with pancreatic cancer.    Fortunately, it was caught early and treated, and earlier this week Justice Ginsburg was back on the bench and engaged in spirited oral argument.    Her illness, however, serves as a reminder that President Obama is likely to make a number of appointments to the Court.    If he serves only one term, it is unlikely that his appointments will create a substantial shift on the Court, as those most likely to retire -- Justices Ginsburg, Justice Stevens (who will turn 89 in April) and Justice Souter (who by many accounts is likely to retire to his beloved New Hampshire earlier than the typical contemporary justice) -- are part of the Court's liberal wing.   If he serves two terms, it is possible (although very far from certain) that he would appoint the replacements for Justice Scalia or Justice Kennedy, which could have more far-ranging effects (and are therefore likely to be much more contentious in the Senate.)

The uncertainty about how many appointments President Obama will make, although something Americans tend to take for granted, is in fact a fairly unusual aspect of American constitutionalism.   In most liberal democracies, judges on high appeals and/or constitutional courts serve some sort of fixed, non-renewable term (or at least, as In Canada, have a mandatory retirement age.)   These systems have a couple of advantages: judicial appointments are more evenly spread among political leaders, and the possibility of a judge staying on despite greatly diminished capacity are reduced.   Indeed, some scholars and lawyers have called for instituting judicial term limits in the United States, citing the much longer terms recent Supreme Court justices have served when compared to their counterparts in earlier eras.    However, other feel that such limits limit judicial independence, and it is unlikely (for better or worse) that the issue could be enough of a political priority for such limits to be instituted.

Another question worth considering is what kind of justices President Obama will choose.   Partly because all nine justices on the current Court were either appointed by Republican presidents or by a Democratic president constrained by a Republican Senate, studies have indicated that the justices on the Court's "liberal" wing tend to be relatively less liberal than justices such as William Brennan and Thurgood Marshall, while with the exception of Anthony Kennedy judges on the Court's "conservative" wing tend to be relatively more conservative than Warren and Burger Court conservatives such as John Marshall Harlan and Lewis Powell.    It is unclear if President Obama will try to appoint more ideological liberals in the Marshall/Brennan/Douglas mode, or if he would prefer more cautious liberals such as Ginsburg and Stephen Breyer.   Of course, President Obama's choice will depend on some measure on factors such as Democratic strength in the Senate and which justices he is replacing as well as his own preferences.   

Boumediene and Judicial Power

By Scott Lemieux

In 2007, the United States Supreme Court issued its Boumediene v. Bush decision, arguing that persons being detained as "enemy combatants" were entitled access to habeas corpus relief or an adequate substitute. (The alternative procedures provided by Congress in the Detainee Treatment Act, the Court held, were inadequate.) Recently, in a major ruling in light of the Supreme Court's actions, District Court judge Richard Leon ordered five Guantanamo detainees released "forthwith." The George W. Bush appointee also added interesting comments, urging the government not to appeal his ruling:

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

On one hand, the willingness of a federal judge to issue this kind of ruling, while urging the executive to let his decision stand, could be seen as an example of the power of American courts. But the question is more complex than it first appears. First of all, this decision brings the grand total of "enemy combatant" detainees freed by the federal courts since 2001 to...five. While the courts have not been willing to cede unlimited powers to the executive, the Bush administration has for the most part been able to do what it wants, and even these detainees were held arbitrarily for seven years. Second, it's probably not a coincidence that this ruing was issued at the end of a lame-duck administration with historically low approval ratings. Had the courts issued such a ruling in 2003 or 2004, it would have been better evidence of strong judicial power. In general, however, the courts have played only a very modest role in military policy post-9/11, just as they have always been generally deferential in such situations.