Sen. Arlen Specter, of Senate Judiciary Committee infamy, has apparently pledged to review the “record” of Chief Justice John Roberts and Associate Justice Samuel Alito during their first full term on the Bench, in an attempt to devise whether their nomination testimony supporting the concept of stare decisis has been borne out in practice.
Where to begin with this stupidity? Everywhere but Pennsylvania apparently, it goes without saying that it would be entirely improper (and asinine) if SCOTUS nominees could somehow be expected to bind their future votes on issues before the Court by the testimony they give at a nomination hearing, no matter what the topic. How could it not be unconstitutional if the Legislative Branch could control the actions of the Judicial Branch via the nomination mechanism?
I really just wish that Sen. Specter would stop pretending to be a great jurist (which he has never been—great, nor a jurist, that is), and instead simply accept the fact that the ones he presumes to “know better” of, operate on an intellectual plane traveling at both higher altitude and greater speed than Specter’s cognitive Cessna.
Thx to the Politico
Sophistic Miltonian Serbonian Blog © 
July 27, 2007 at 8:55 pm
i think you have senator specter all wrong. he is just wanting to see how the testimony lines up with their performance so that he will be a better evaluator of nominees in the future. you know, ask better questions and stuff like that.
July 27, 2007 at 10:20 pm
Let me start with the caveats: I’m no Specter fan, and I agree with you if you mean that no one believes that any challenges to votes in specific cases could be made, based on the justice’s previous testimony at their confirmation hearing.
But I’m not sure that’s all there is to this. Certainly there’s nothing wrong with the folks who make the ‘advise and consent’ decision (the Senators) taking a look at how potential nominees testified, and then how they voted, since those same folks will be expected to make future decisions about other nominees.
You could hypothetically learn something from this. I say hypothetically, because, while I haven’t figured out the angle, this is probably just some form of political grandstanding by Specter (although, I don’t know what he gets out of it).
Lemme give you a quick example of what I mean though: you might learn that nominees who reply “I can’t give you an answer because that issue might be decided in a future case”…actually have very strong opinions about the particular issue, and vote for the rest of their lives in an ideologically driven results-oriented way about those types of cases, notwithstanding whatever the actual legal issue in front of the court was. (I know, I know…that covers everyone who has testified since Bor, but I hope you see my point.)
Off topic: nice blog. I’m adding you to my RSS reader. I’m assuming you are an Austin lawyer – I ask, because that’s the folder I put you under. Do I need to move you to “Texas Lawyers”, or did I guess right?
July 28, 2007 at 10:46 am
Russ,
I understand the point you’re making, but I think that even if all Sen. Specter were trying to do was ensure nominees’ “testimony lines up with their performance,” he still would be overreaching his constitutional authority.
Art. II, section 2 of the U.S. Constitution allows that the President “shall nominate, and by and with the Advice and Consent of the Senate … Judges of the supreme Court.”
So after Sen. Specter gave his advice and consented to the nomination of Chief Roberts and Justice Alito, his Constitutional role is complete. He has no authority to inquire if their testimony at their nomination hearings, in his (rusty at best) estimation, matched their subsequent writings from the bench.
Moreover, the whole endeavor is silly because, every SCOTUS nominee will profess and genuinely believe in the concept of stare decisis for that is what our common law system is built upon.
However, just because you recognize the limiting effect prior decisions have on subsequent ones doesn’t mean that, on any particular set of facts and merits, a somewhat different result may be called for. This is how we came to enjoy many of the constitutionally-derived freedoms we now enjoy.
Further, just because a judge appreciates the role of stare decisis can’t also mean that he or she will never write or join an opinion where the majority is limiting, modifying, or even overruling a prior holding of the court.
For Sen. Specter to pretend that is the case just further reveals either his constitutional ignorance, or his willful obfuscation of simple and undeniable constitutional precepts.
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July 28, 2007 at 11:28 am
Jamie,
Many thanks for the compliment, and thanks for adding my little corner of blogdom to your RSS reader. I am indeed a Texas lawyer, but more than that, I cannot say.
To your point though, I do believe that both sides of the aisle in the Senate are obligated, as part of their advice and consent function, to ensure that ideologically-driven judges of any stripe are not appointed to the Bench.
That is not to say that judges who adhere to a certain concept of jurisprudence or statutory construction (textualists versus legal evolutionists) are to be barred. Indeed, every good judge follows some path of legal interpretation, and any that didn’t adhere to a well-defined concept of one approach or the other would make a truly awful judge, able to be swayed and bent by any political or emotional breeze. Only those judges who would sacrifice their judicial integrity in order to rule according to their personal beliefs are, in my view, unfit to serve on SCOTUS.
But this is where Sen. Specter’s entire thesis is revealed to be fraudulent and inane. Both Chief Roberts and Justice Alito favor a more originalist juristical approach. By the same token, Justices Breyer and Ginsburg favor a more evolutionary approach. Both of these theories of jurisprudence will lead the judge adhering to them to either be more or less likely to recognize a constitutional right to abortion, or an individual’s right to keep and bear arms, or to declare the death penalty cruel and unusual.
None of these views can be pigeonholed into a simpleton’s view of stare decisis however. Of course stare decisis guides a judges willingness to replace or supplant prior decisions, but the complex matrix of rights and case-specific facts must be the ultimate arbiter of the outcome.
Stare decisis is not a constitutionally-enshrined right or process. It is merely a tool–developed over centuries–of building the latticework of the common law. Accordingly, stare decisis must yield if it is the only impediment to the recognition or reaffirmation of a constitutional right.
Stare decisis is the brake pedal, not a constitutional brick wall.
Merely because a previous holding may be modified or even abrogated doesn’t mean that the judges joining the majority opinion have no regard for stare decisis, only that their regard for stare decisis was tempered by the case-specific facts and law in the subsequent case.
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