Miers, getting over Bork, legitimacy of courts

Mark Graber mgraber at gvpt.umd.edu
Thu Oct 13 04:39:50 PDT 2005

To address all of this briefly.

1.  There is a good deal of political science and now law literature
suggesting that judicial review is less a product of a national
commitment to impartial judging, whatever that means, but a means by
which factions in power advance political interests, whether those
interests be in entrenching constitutional visions or ducking
responsibility for those issues.  See Ran Hirschl's work, Gillman's APSA
article, and Whittington's forthcoming APSA article (and book), among
numerous other examples.

2. The general public insists on non-ideological decisions, but probe
the data a bit and you tend to discover that non-ideological decisions
are those that agree with people's constitutional vision.


>>> Carrese Paul O Prof USAFA/DFPS <Paul.Carrese at usafa.af.mil> 10/12/05
8:08 PM >>>
In reply to those who defend legal realism ("high politics," or low)
regarding constitutional law and confirmation for Supreme Court
justices, or, who think a conservative president should only appoint
Bork-like judicial theorists (the originalist Hercules?) to conduct a
national debate: I suggest these views, whatever differences they have
otherwise, don't adequately address three issues:


a) how did Article III judges ever become truly powerful, and establish
judicial review, unless they were seen as capable of being impartial,
non-ideological, oracles of the law and the Constitution - not espousers
of a philosophy or conductors of a national seminar, but judges fairly
arbitrating disputes under law?  Sure, there is judgment involved, it is
not mechanical; sure, not all judges live up to the standard; but if
judging was understood to be essentially ideological, or requiring a
philosophy or grand theory, why would the other branches or the
citizenry allow judicial review to arise? And why respect its exercise

 b) isn't the empirical confirmation of this view of our constitutional
system evident in the great controversy of recent decades about judicial
power becoming too powerful BECAUSE too philosophical or ideological,
too theoretical, too much like the other branches and parties in making
first-order moral and policy judgments of their own?  Isn't it evident
in the fact that both liberals and conservatives make this charge about
outspoken theories, philosophies, isms of the other camp, and that not
only the recent ABA survey but also the PEW survey (reported this
summer) register declining popular legitimacy for the courts?  And if
this trend continues, what will judicial review and courts be like in
another generation? For those advocating a grand national seminar about
various isms, how does the to-be-expected brawl restore legitimacy or
reinforce a moderate role for the judiciary in our system?

c) haven't the presidency and Senate finally have reacted as one would
expect in our constitutional system, partly in response to popular
reaction via elections and partly to defend (as Fed 51 anticipates they
would) their own powers -- to signal that courts should not be engaged
in transformative policy making or philosophical lessons about the
constitution, but in a more modest but still robust enforcement of
rights and duties and limit on powers under law?  How else to explain
the actions of the 14 Senators re: filibuster and the nuclear option, or
the nomination to the highest court not of Bork or Scalia jurists but of
traditional stealth nominees, Roberts and Miers?  Some may think GW Bush
merely appointed a crony for crony's sake with Miers, but, apart from
overlooking her mainstream credentials relative to the previous 109
nominees, does that make any sense given the prior appointment of


I do not claim that this "old institutionalist" thinking explains
everything happening with courts and confirmations at the moment, but I
think it explains quite a bit.


I close with a word of thanks to Mark, Matt, and others who bother to
comment on my occasional contributions to these lists.  And to Matt, I
pose the concern that the writings of Scalia and Thomas, like the
earlier writings and testimony of Bork, too often mirror or get pulled
into the "ideological" tone and stridency of the progressive views they
criticize.  Perhaps this is why Roberts stated he did not hold a single
doctrine or interpretive philosophy -- that collegial judging on an
appellate court in the common law tradition is more complex.  I think
Montesquieu and Marshall would agree, as would Lincoln.  Thus the
concept of a national seminar or debate through a confirmation hearing
concedes too much to the agonistic, quantum-theory view of the
constitution advocated by the progressives.  Perhaps the corrective Matt
seeks has already happened, and constitutional equilibrium has begun to
restore itself - in part thanks to the arguments of Matt and many others
- and this would be put at risk by giving legitimacy to grand agonism
and theory?


{{{ For those inclined to read further, I elaborate: I am not surprised
that advocates of legal realism -- of importing a soft Machiavellism
into law -- would accuse me of being Machiavellian, of carrying the
President's water, of engaging in low politics; to a realist there is
always low or high politics "behind" every statement or action, and
there is always deconstructing to do.  But if Machiavellism's claim to
fame is explanatory power, I offer a competing explanation of the
Roberts and Miers choices, and suggest that the realist view does not
explain what is happening at the moment.  I did not receive in reply any
arguments, that I could see, as to why my explanation of the
constitutional underpinnings of current events - the old
institutionalism -- is wrong.


As to whether there is room in our constitutional system for "high
politics" and "competing visions" about the constitution through elite
agonism among judiciary, lawyers, and professors, I will not address
here whether such a view is entirely candid or self-knowing ("I'm
engaged in high politics, you are not"), or even whether it is a
sustainable view of a liberal-democratic or republican constitution to
suggest that it contains an implied power for a small guild to
fundamentally change the meaning of the document quite apart from all
the explicitly stated avenues in the document for engaging in high or
low politics.  Rather, my point was to observe the current scene and
suggest that the old institutionalism explains more of what is going on
than we give it credit for.


The Machiavellian or legal realist or living constitution view is that
few if any judges in our constitutional order, from the founding
forward, ever believed in or lived up to the ideal that judges should be
impartial, non-partisan, oracles of the law - training themselves to
avoid policymaking and politics - and, therefore, such an ideal, if it
ever existed, was cheap talk meant to delude those not in the know.
Thus, we in the know should pay it no heed today.  A first reply is that
there is no ideal or principle of human conduct or of thought that is
always honored, e.g., the principle that one should not engage in ad
hominem attacks or emotional rhetoric in academic discourse.  But this
unfortunate fact about humans does not begin to prove that such ideals
are impossible, meaningless, a con job, or not worth striving for.  A
second reply is to repeat my basic question: how is it that judges ever
were granted judicial review in our system, and why should anyone
respect its exercise now, unless judges define themselves as striving to
adhere to the standard that Roberts articulated?  A third point is a
hunch about the future that, given our complex Montesquieuan system, the
judiciary is in for some hard knocks and crises, and significantly
diminished power and legitimacy, unless it begins to show that it will
return to the John Roberts/John Marshall standard.  Not a dumbed-down
view, a traditional one (Holmes did say Marshall was dumb -- his 1901
address sounds much the current dismissal of Miers; Wilson didn't say
Montesquieu was dumb, just out-dated).


Our law, courts, and politics today are stuck between the original
constitution and the new one that Holmes and Wilson sought to put in its
place.  GW Bush need not ever have thought about constitutional or legal
theory in this way; but it is pretty clear that his advisers on judicial
nominations, inside and outside his administration, have thought about
it, and have deliberately sent to him candidates who take the
Montesquieu/John Marshall view of the Constitution and judicial power
rather than the Holmes/Wilson view.  After the controversies of recent
decades the president and Senate have quietly agreed to put the
judiciary (and lawyers, and law and poli sci professors) back in its
place, quietly agreed to restore the tradition of Marshall and the
traditional common law view that Roberts articulated: judges are oracles
of the law, and appellate judges are engaged in the collegial practice
of reasoning and arguing to produce authoritative pronouncements of what
the law commands them to do.  The common uniform of simple black robes
-- the only uniform for American government officials outside the
military -- should be uniformly and plainly black to reflect republican
government and the rule of law.  Principles like these, which Miers had
a hand in putting forward and now has enunciated as a nominee, can sound
like mere platitudes, but they are principles that set a standard for
which to strive and hold each other.  Put another way, the traditional
view rejects the Machiavellian bigotry of low expectations at the core
of legal realism. }}} 


Paul Carrese



Dr. Paul Carrese

Director, Academy Scholars Program

Professor, Political Science

US Air Force Academy

Fairchild Hall, 6L116

USAF Academy, CO 80840-6258

paul.carrese at usafa.edu

719 333-3563




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