April 13, 2005

Congress and the judiciary -- with a response from Justice Kennedy.

Here's the latest NYT report on Congress and the judiciary. Here's a passage about the attacks on Justice Kennedy:
At a House Appropriations subcommittee hearing on the court's spending request, Representative Todd Tiahrt, Republican of Kansas, veered from the budget issues to press Justice Kennedy.

"Lately we've had rulings that seem to go beyond the rule of law" and that reflect "outside influence," the congressman told the justice. He pointed to a Supreme Court decision last month barring the execution of those who were juveniles when they committed their crimes. That decision, which was written by Justice Kennedy and which cited international treaties and practices abroad, appeared to reflect "pressure put on by the United Nations and other agencies," Mr. Tiahrt said.

Mr. Tiarht said the court was "not interpreting the Constitution and laws that govern America anymore," and added that his views were shared by people "across the United States."

Justice Kennedy, appearing unruffled, replied mildly that disagreements over the meaning of the Constitution were "a very important part of democratic dialogue." He added, "This give and take is very healthy."
Nice that Kennedy actually responded. So often there's no comment. But I love the cool, measured response that models judicial demeanor. It helps people see that judges function in a different way from politicians, even though the politicians are pushing the proposition that they don't.

There are also cooler heads among the politicians:
Both Mr. Specter and Mr. Frist said the tone of the Senate fight over judicial nominations and the intense lobbying by outside groups interested in the issue were complicating their efforts to strike a compromise with Democrats and avoid a showdown.

"We need to lower the rhetoric," Mr. Frist said. "For the life of me, I can't understand how we benefit moving America forward and we have the other side of the aisle talking about shutting down government."
And by the way, I thought Senator Schumer did a great job of defending the filibuster on "Meet the Press" last Sunday, even while sitting next to Senator Cornyn, whom you could tell he did not like.

UPDATE: Schumer was on "Fox News Sunday," not "Meet the Press." No wonder I couldn't find the transcript.

ANOTHER UPDATE: Reading the article more carefully, I see that Justice Kennedy was actually there being confronted, which explains the relatively temperate remarks by Tiahrt (as one of the commenters noted). Intemperate remarks targeting Kennedy for impeachment were made over the weekend, and obviously Kennedy is aware of them. His response when directly confronted was a typical judicial response for that setting, so it actually isn't extraordinary at all. Had he not been there, I don't think he would have offered a comment, and the comment that he did make is really quite close to no comment at all.


Gerry said...

Schumer's defense would probably have impressed me more if he had not taken a diametrically opposed stance back in early 2000.

Ann, I am more than willing to stipulate that judges do not function the same as politicians. I'll more than stipulate, actually. I'll flat out agree.

However, I have gotten the impression from many of your recent posts that you extend that sentiment further; that you feel that they do not function in a political manner at all. If that does represent how you see things, then I do not share that view. I don't think it is even possible.

Gerry said...

By the way-- wasn't that on Fox News Sunday, not MTP?

Ann Althouse said...

Gerry: No, I've never said that. Judges are human beings and human decisionmaking is a complex enterprise. I do think that the judges at the Supreme Court level are working very hard to follow what they believe is proper constitutional interpretation -- which they may see as containing an element of political reasoning. And I think they are incapable of completely excluding intuitions about where the best result is even if they think it is inappropriate. I don't think we could tolerate the work of judges if that were not so.

Gerry said...

Thanks for the clarification-- I know you had never said it, but I had inferred it and was not sure if that meant you had implied it.

What? You wouldn't support the creation of super-impartial machines o' justice? And here I was hoping to have a hand in designing its control computer code...

twwren said...

Clearly, some recent attacks against the judiciary have been beyond the pale. But I do not believe that Mr. Tiarht's comments as quoted by the NYT even come close to rising to that level. Frankly, Justice Scalia's comments on CSPAN last month were just as scathing, and Justice Kenedy's responses were just as gracious. There is nothing inherently wrong with a member of Congress critizing, and even scolding, a Supreme Court Justice. After all, if enough voters agree, it is certainly easier to remove representative Tiahrt for his opinions that Justice Kennedy for his.

Steven Taylor said...

All those shows run together after a while...

JohnF said...

I didn't think Schumer's "defense" of the fillibuster was effective at all. His point was that it was needed to protect the "rights" of a substantial minority.

Assuming the "right" he speaks of is that to block presidential appointments, that right certainly is not conferred by the Constitution upon minority senators--it exists by convention only, within Senate standing rule XXII, the interpretation of which is for the presiding officer, subject to his being overruled by majority vote.

Standing Rule XXII provides in section 2, "Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Thereafter no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate,..."

I think there is a radical difference between using this provision to block some proposed legislation--its traditional use--and to block the effort to fill vacant governmental posts on the other. While the rule on its face does not differentiate the matters on which it may be used, surely there must be some limits. To take one example, Senators present their credentials at the start of a session under Rule II, which notes that "all questions and motions arising or made upon the presentation of such credentials shall be proceeded with until disposed of."

If a minority group of Senators mount a challenge to the credentials of a Senator they regard as too far out of the mainstream, are we to believe that it will take 60 senators to demand a vote on the credentials? That a minority cannot just block a vote on judges but can block a vote on the credentials of other senators?

Why not? As Senator Schumer has opined, the rule that allows this has been around for a long time, thereby, I assume he would say, conferring inalienable rights on any minority to control legislation, presidential appointments and the composition of the senate itself.

Sounds like what the framers must have had in mind.

Too Many Jims said...

John says that "I think there is a radical difference between using this provision to block some proposed legislation--its traditional use--and to block the effort to fill vacant governmental posts on the other." Two points.

First, "its traditional use" is kind of like beauty being in the eye of the beholder. There were Republican filibusters of judicial nominees and other appointees.

Second, as John notes, Senate Rule XXII "does not differentiate the matters on which it may be used". If the rule can be abrogated when a majority is tired of suffering the obstructionist tactics of the minority with regard to nominees, what is to stop the majority from getting rid of the rule whenever the majority tires of the minority obstructing whatever (e.g. drilling in ANWR). Once the rule is taken down for this purpose, the rule exists only at the will of the majority. In other words, the rule does not exist.

(John does raise a very interesting question about the interplay of Rule II and Rule XXII and asks "are we to believe that it will take 60 senators to demand a vote on the credentials?" My answer would be a very qualified "yes". It is quite clear to me that the credentials referred to in Rule II are credentials of being properly elected (or appointed as the case may be) by the respective States. If the reason that some Senators were seeking to extend debate on the credentials of a prospective Senator were because of questions regarding the conduct of the election in the State (or, less likely, the appointment) then I would think that Rule XXII would apply and you would need to have three fifths of the the then duly chosen and sworn Senators to invoke cloture. On the other hand, if there were no questions about the conduct of the election and the Senators were seeking to obstruct a Senator from being sworn in because he was regarded "as too far out of the mainstream" (e.g. "We will not accept the Socialist that the people of Vermont have sent here") then I would think that the Courts would be able to step in to enforce Amendment XVII. That would make one heck of a moot court problem. [As a complete aside, I would note that the number that would be needed to invoke cloture would be south of 60.])

Personally, I agree with George Will's position that the appointments should be made, the filibusters be allowed to take place, then if the argument favors the executive, the executive should run against the obstructionist Senators.

JohnF said...

I think Jim's points are well taken, except I would note that the reason the dems are filibustering is simply because of the political views of the judicial candidates. lf you say that is OK, then we get back to the Rule II problem, where blocking a senator's seating by filibustering the credential process would presumably also be OK for purely political reasons. What's good for one filibuster should be good for another, unless you are willing to say the rule should apply in some circumstances (e.g., legislation) but not others (e.g., seating senators or filling vacancies). These really are different kinds of acts for the Senate to perform, with different levels of public importance, and different public expectations. So I adhere to the view that it would make sense, and may be constituionally required, to interpret the rule's applicability differently in different settings.

And by the way, the courts would not intervene on a question of qualifications of members of either chamber of Congress. Art. I, Section 5 of the Constitution says, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,...."

Too Many Jims said...

John is right about Art. I, Section 5 of the Constitution more than being wrong, I am embarassed.

Personally I think there is something to the distinction between the Senate acting with respect to legislation and the Senate acting in its "advice and consent" capacity. However, that distinction is not written into the Rule. Accordingly, I don't see how one would come in after years of having the Rule being used to filibuster Presidential nominees (of both parties) and say "AHA!" the rule does not apply to presidential nominees.

JohnF said...

Jim is certainly right that the rule doesn't distinguish between its use for legislation and its use for "advice and consent" purposes. And I do run the risk of confusing (a) how I'd like the rule to have been written in the first place with (b) how the way it is actually written should be interpreted. I could be an activist judge!

But conceding, as I must, that the plain meaning of the rule leads to Jim's conclusion that it is applicable equally on its face both to legislative disputes and advice-and-consent disputes (and seating-fellow-senators disputes), there remains the point whether the Constitution permits any rule to thwart the advice-and-consent function. I think that is the way the issue is framed in the "nuclear option" debate, and that argument will itself turn on whether the Constitution sees something different between (mere) legislation and filling governmental vacancies.

I confess the Constitutional argument does not seem all that powerful. But at the same time I am much more troubled by the Senate's inability to fill vacancies than I am by any inability to pass some new law. Whether Mr. Constitution feels the same way will probably be decided by a majority of our elected scholars in the Senate.