Legal Theory Blog

Gulati & Benjamin on Disclosure of Nominations by Presidential Candidates

G. Mitu Gulati (Duke University - School of Law) & Stuart Minor Benjamin (Duke University School of Law) have posted Mr. Presidential Candidate: Whom Would You Nominate? on SSRN. Here is the abstract:

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election: we do not expect candidates to compete on naming the better slates of nominees. For the candidates themselves, not having to compete over nominees in the pre-election context has personal benefits - in particular, enabling them to keep a variety of supporters working hard on the campaign in the hope of being chosen as nominees. But, from a social perspective, this norm has costs. We propose that candidates be induced out of the status quo. In the modern era of candidates responding to internet queries and a vocal public asking questions via YouTube, it is plausible that the question - "Whom would you nominate (as Secretary of State or for the Court)"? - can be asked in a public setting. And maybe, if one candidate is behind in the race, he can be pushed to answer the question.

I very much enjoyed this very interesting paper.  On the implementation side, I wonder what would be done about FBI background investigations?  If not done pre-announcement, there would be the possibility of a huge political cost--in the event that damaging information were discovered post-announcement.  If done pre-announcement, there might be logistical problems.  FBI checks for all primary candidate picks seem impractical.  FBI checks post-convention would run into a very narrow time frame.

Thornton on Merit, Gender, and Judicial Selection

Margaret Thornton (Australian National University - ANU College of Law) has posted "Otherness" on the Bench: How Merit is Gendered (Sydney Law Review, vol. 29, No. 3, pp. 391-413, 2007) on SSRN. Here is the abstract:

This paper focuses on the construction of merit as the key selection criterion for judging. It will show how merit has been masculinised within the social script so as to militate against the acceptance of women as judges. The social construction of the feminine in terms of disorder in the public sphere fans doubts that women are appointable - certainly not in significant numbers to the most senior levels of the bench. It is argued that merit, far from being an objective criterion, operates as a rhetorical device shaped by power. The paper will draw on media representations of women judges in three recent Australian scenarios: an appointment to the High Court; the appointment of almost 50 percent women to Victorian benches; and the scapegoating of a female chief magistrate (resulting in imprisonment) in Queensland.

Choi, Gulati, and Posner Rank State Courts

Stephen J. Choi , G. Mitu Gulati and Eric A. Posner (New York University - School of Law , Duke University - School of Law and University of Chicago - Law School) have posted Which States Have the Best (and Worst) High Courts? on SSRN. Here is the abstract:

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.

A bit more from the paper:

In earlier work, we showed that the relationship between institutional design and judicial quality is complex, and does not lend much support to the conventional wisdom. Appointed judges write more frequently-cited opinions than elected judges do, but elected judges are more productive, while there seems to be no difference between their levels of independence.18 Judicial pay has little effect on judicial quality, except among elected judges, who are more productive when paid more.19 It is not the purpose of this Article to review or reproduce these findings. Our goal instead is to generate a ranking of the state high courts on the basis of the data that we collected for the earlier studies. We will argue that our ranking overcomes many of the defects of the U.S. Chamber of Commerce study, as well as those of earlier academic work.

Rankings make people uneasy. They seem to trivialize activities that are of public importance, and they may stimulate the ranked agents or institutions to engage in destructive competition or demoralize those that have no ability to escape from the bottom. The most serious objection to rankings is that they unavoidably rely on measures that neglect hard-toobserve but important aspects of performance. If nonetheless those who achieve a high ranking are rewarded with resources or public esteem, institutions will distort their missions so as to do well on whatever measures are used.20

We address this objection by making our rankings as transparent and flexible as possible. Readers might disagree about how to weight the different measures that we use, and we show how such disagreements may lead to different rankings of the state courts. The alternative to rankings is, as a practical matter, virtually no information, and public institutions that are not carefully monitored and evaluated will rarely have strong incentives to perform well. Rankings, however imperfect, serve an important information-forcing function.21 Institutions that do poorly on rankings should have the burden of coming forth with an explanation for their performance; but if the explanation is plausible, then the ranking should be discounted. Better still, if the stakes are high enough – and the amounts of money spent by institutions like the U.S. Chamber of Commerce on commissioning rankings suggest there are22 – competitor rankings should emerge that improve upon the prior ones.

A must read.  And even if these rankings are imperfect, they are certainly a huge improvement over the status quo.  Bravo!

Dillard on Judicial Independence

Amy Dillard (University of Baltimore - School of Law) has posted Separate and Obedient: The Judicial Qualification Missing from the Job Description (38 Cumberland Law Review 1 (2008)) on SSRN. Here is the abstract:

The national debate about the role of judges, their qualifications and ideologies consumes news coverage, as evidenced by the recent appointment hearings of Chief Justice John Roberts and Justice Samuel Alito and the aborted nomination of Harriet Miers. The American Bar Association is in the process of re-evaluating and updating its Model Code of Judicial Conduct. The poverty of the quality of the debate, with legislators on both sides of the aisle discussing a few political issues and largely ignoring issues of ethics and temperament, leaves the public with little helpful information about whether judicial candidates will abide by the Canons of Judicial Ethics, which may be the most reliable and pertinent standards for evaluating judicial temperament and aptitude. Legislators demonstrate discomfort with the power of judges, and they boldly seek to limit the power of the judiciary and to circumscribe the offices of Article III judges. Congress has at least threatened legislation to impeach judges, create term-limits, and reduce the number of appeals judges. Despite the rhetoric to abandon the use of a litmus test for judicial candidates, it remains apparent on the federal stage that legislators are, even if subconsciously, using one.

In Virginia, legislators openly apply a litmus test in the selection and reappointment processes for judges. With absolute control over the selection and reappointment process for all judges in the Commonwealth, members of the Virginia General Assembly, in session with no oral or written record and no method for capturing legislative history, increasingly ask pointed ideological questions to scrutinize judges who are carrying out their jobs ethically, in accordance with the law, and with courage. Virginia's original constitution granted control of the judiciary to its General Assembly. Throughout the 19th century, during two significant revisions of the Virginia Constitution, the General Assembly retained its complete control over the selection and reappointment of every judge in the Commonwealth. Today, the General Assembly maintains absolute control of the Commonwealth's Judiciary. As recently as 1970, the Commonwealth reviewed and retained her unique practice of granting absolute control over the judiciary to the General Assembly.

The problem of selecting and applying a litmus test is not exclusive to Virginia, but the unique appointment process creates a vortex of power for legislators to disable judges who take unpopular stands. If the point of appointing judges is to free them from populist criticism at the ballot box, then Virginia has not accomplished her goal. In fact, legislators confront judges in closed hearings with no transcript for their constituents, thus making it easier to confront judges with frank and base political criticism, bypassing the need for true assessment of performance and criteria based on judicial ethics, ability, and temperament.

The General Assembly maintains no legislative history or record of its proceedings. The history and process of judicial selection are entirely secret in Virginia, save for a few tenacious reporters' recollections. Accordingly, the data for this article is generally ephemeral, comprising newspaper articles and interviews with judges and other direct participants. Though my methodology is somewhat unconventional, it is the only approach I have discovered to obtain the information.

McLeon on Judicial Selection & Parisan Divisions on State Supreme Courts

Aman Liev McLeod (Rutgers, The State University of New Jersey - Rutgers University, Camden) has posted The Red-Blue Divide on the Bench: An Examination of the Effects of Selection Systems on Partisan Divisions in State Supreme Court Decisions on SSRN.  Here is the abstract:

This study explores at a very basic level how the partisan behavior of judges manifests itself on courts that use different judicial selection systems. Specifically, it examines how different reselection systems affect judges' propensity to form partisan coalitions in criminal cases, by looking at the voting habits of the justices on several state supreme courts over five years. The evidence indicates that partisan elections appear to promote the appearance of party line divisions, while systems that require judges to be reappointed have no effect on the incidence of party line votes. The evidence also indicates that although retention elections do not appear to have any significant effect on the incidence of party line votes, and that nonpartisan elections actually tend to decrease the incidence of party line votes.

Stras & Scott on Judicial Appointments

David Stras (University of Minnesota) & Ryan Scott (Department of Justice) have posted Navigating the New Politics of Judicial Appointments on SSRN. Here is the abstract:

This Review Essay explores the new politics of judicial appointments by addressing the important question whether Senate-specific reforms to the judicial appointments process are likely to succeed. In his recent book, The Next Justice, Chris Eisgruber proposes a two-part plan to repair the Supreme Court appointments process. Like many other scholars that have written in the area, Eisgruber's reforms focus primarily on the Senate. First, he proposes that the Senate get smart by asking penetrating questions about the judicial philosophy of Supreme Court nominees in an effort to ensure that the future Justices are moderates, rather than extremists. Second, he proposes that the Senate get tough by standing up to the President and rejecting any nominee who does not prove to be moderate, or who fails to give satisfactory answers at the confirmation hearings.

In this Review Essay, the authors note several flaws in Eisgruber's proposals, many of which are applicable to other, similar reform proposals advanced by other scholars. First, Eisguber offers an incomplete diagnosis of the reasons behind the growing politicization of the appointments process, underestimating in particular the prominent role played by interest groups and the media in shaping the process. The political pressures on Senators make it unlikely that they can become tougher and more assertive in the process, either by adopting a more probing set of questions at confirmation hearings or by rejecting nominees in favor of judicial moderates.

Second, drawing on a rich political science literature, the authors demonstrate why a "get tough" strategy by the Senate in the judicial appointments process is likely to provoke a strong response from the President. Like many other scholars in the area, Eisgruber fails to address the myriad tools available to Presidents to deal with Senate resistance. The basic and most powerful tool for Presidents is the strategic selection of Supreme Court nominees, especially those with excellent qualifications, which can make it difficult for Senators to delay or reject those nominees. In the face of an obstructionist Senate, Presidents can also draw upon their substantial institutional strength by "going public" and touting the qualifications and attributes of the nominee, by making or threatening a recess appointment, and by employing ordinary legislative techniques like logrolling strategies and credible veto threats. Strategic employment of these tools makes it more difficult for Senators of all parties to obstruct Supreme Court nominees and helps to explain why the vast majority of such nominees during the past century have been confirmed by the Senate.

Sunstein Replies to Prakash

Cass Sunstein has posted Of Snakes and Butterflies: A Reply on SSRN. Here is the abstract:

This brief essay, a reply to a forthcoming essay by Radicals in Robes by Saikrishna Prakash in the Columbia Law Review, makes two points. The first is that the abstract idea of interpretation cannot support originalism or indeed any judgment about the competing (reasonable) approaches to the Constitution. Any such judgment must be defended on pragmatic grounds, which means that it must be attentive to consequences. The second point is that the consequentialist judgments that support minimalism also suggest that there are times and places in which minimalism is rightly abandoned. For example, broad rulings may well be justified when predictability calls for it; and the Supreme Court was right to refuse minimalism in the late 1930s. While minimalism is generally the proper approach to “frontiers” issue in constitutional law, its own pragmatic foundations suggest that constitutional law should not be insistently or dogmatically minimalist.

Prakash's review, also on SSRN, is Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors are Wrong for America.

Bruhl on Judicial Selection

Aaron-Andrew Bruhl (University of Houston Law Center) has posted If the Judicial Confirmation Process is Broken, Can a Statute Fix It? on SSRN. Here is the abstract:

Many observers believe that there is something seriously wrong with the current state of the judicial confirmation process, particularly that it features too much conflict and obstruction. This Article does not take sides on whether reform is necessary but instead examines the relatively neglected issue of the vehicle through which reform might take place – that is, the method of implementing whatever reform (if any) is thought desirable. In particular, this paper will take up the question whether the confirmation process could be reformed not through the vehicles that are usually proposed – a constitutional amendment, an change to internal Senate rules, an informal “deal” or norm – but instead through the less discussed mechanism of a statute that would govern the Senate's procedures. The statute might, for example, purport to bar filibusters of judicial nominations. While employing a statute might at first seem peculiar, there is in fact a large, growing, and interesting body of statutory law that governs internal rules of debate.

Is a statute a permissible method of reform in this context? This Article canvasses various potential impediments to employing a statute and concludes that the Constitution would not permit a statute to override the Senate's ordinary power to control its rules of debate. The reason that such a statute could not formally bind is that it would violate a structural principle of cameral procedural autonomy that is critical to the constitutional design. The Article nonetheless suggests that a confirmations statute might still have value to reformers. It might have great practical political effect even if it is not legally binding.

Very interesting and highly recommended.

I've written about one of Bruhl's issues--the relationship between executive and Senate power over the advice and consent function, see

The President's Power to Call Congress Into Executive Session as a Remedy for the Senate's Breach of its Constitutional Duty to Render Advice and Consent

and

Is the filibuster of judicial nominees unconstitutional? And if it is, what can be done?

The President's Power to Call Congress Into Executive Session as a Remedy for the Senate's Breach of its Constitutional Duty to Render Advice and Consent

Introduction In a post on Friday, I argued that President Bush may possess the long-dormant power to call the Senate into executive session and ask each Senator for advice and consent on judicial nominations. Michael Rappaport replied here, and I offered further thoughts here. Now Michael has an extremely well-written and thoughtful reply. I have interspersed some updating comments in my Saturday post. I would like to emphasize that my thoughts on this topic are still in the gestation stage, although my thinking has been substantially clarified by Rappaport's very cogent pointsReading the History: Washington's Letter and Historical Practice One important question concerns the question whether the Senate has recognized the President's power to convene the Senate as an "executive council." Senate Rule XXIX has long provided that the President may call the Senate into executive session. Rappaport notes that this rule does not, by itself, give the President the power to modify the Senate's other rules of procedures, and he is surely correct. My argument that the President has the additional power to ask individual Senators for advice and consent relied on President Washington's letter. To that Rappaport replies

My point was that there are two possible (but conflicting) interpretations of the SenateÂ’s role as to appointments: the Senate could be an executive council that is subject to the governance of the President (as Washington suggests) or it could be an legislative body that is independent of any presidential control. While WashingtonÂ’s view was plausible as an original matter, so was the opposite view and that view has been followed for more than 200 years. Given the 200 years of legislative precedent, one cannot lightly go back to the alternative, contradictory interpretation. I invoke no doctrine of desuetude here.This is a powerful point! If I may ask you indulgence again, here are some thoughts by way of reaction:

First, Rappaport and I seem to agree that the constitutional text in light of the relevant history was ambiguous at the time of the framing. In this regard, I would emphasize this sentence from Washington's letter: "It seems incident to this relation between them, that not only the time but the place and manner of consultation should be with the President." This passage offers strong support for the proposition that what we might call the executive council interpretation was, at the time of the framing and ratification, at least a reasonable interpretation.

Second, Rappaport believes that the subsequent history points unambiguously to the view that the President lacks the power to convene the Senate as a legislative council. My tentative reading of the history is more nuanced. In response to Washington, the Senate indicated its preference to meet in its own chamber, and Washington acquiesced in the Senate's expression of its preference. This acquiescence can be read in two ways:

The first reading is that Washington and the Senate clashed over the issue of power, and the Senate's interpretation of its own power prevailed.

The second reading is that Washington and the Senate did not reach the point of clash over the issue of power, because the Senate requested that Washington allow the Senate to give advice and consent in a manner of its own choosing.

The second reading of the history is consistent with the notion that the President has a dormant power to call the Senate into session as an executive counsel. The question then becomes whether the Senate's refusal to render advice and consent provides a reason of constitutional prudence for the President to revive the dormant power.

Insofar as Rappaport is arguing that the history does not unambiguously support the notion that the President retains a dormant power to call the Senate into session and ask for advice and consent, I am compelled to agree. But if Rappaport goes further, arguing that the history is unambiguous and the issue has been settled beyond dispute, then I beg to differ.Thought Experiment One Here is another way to think about the history. Consider the following thought experiment:

Imagine that at some point in our history (neither too close to the framing nor too proximate to our own era), the President and the Senate had clashed over the Senate's refusal to render advice and consent on the President's nominations for judicial office. Imagine further that the President had taken the radical step osummoningng the Senate into session in the White House, and that the Senate, pursuant to Rule XXIX, had duly assembled at the appointed time and place. Now imagine that the President speaks first at this assembly, and that he demands that the Senate render advice and consent. And here is the critical assumption: Imagine further that the Senate responds, voting up or down on the pending nominations.

Had such an event occurred some decades ago, would it alter our view of the question whether the President has a latent power to call the Senate into session and demand timely advice and consent? I am not sure, but I do have a suspicion. My suspicion is that this event would be viewed as relevant to the constitutional question. My suspicion is that this event would count as strong (but perhaps not decisive) evidence that the President does have the dormant power I have postulated. And here is the kicker. If you share my suspicion about the meaning of this counterfactual historical hypothetical, then I think you ought to share my intuition that in the actual world, the advice and consent chapter of the book of constitutional history is still being written.

The Argument for a Constitutional Duty to Render Advice and Consent from Transparency In my last post, I argued for the proposition that the Senate has a formal duty to render advice and consent that is not fulfilled by mere inaction or silence on the ground that this duty is supported by considerations of transparency and democratic legitimacy. Rappaport's most recent post resulted in my doing a bit of additional research that I would like to share with you. Both James Wilson and Joseph Story have written about the appointments power in ways that lend support to my transparency argument. Let me just quote the passages, and you can draw your own conclusion:

James Wilson, Government, Lectures on Law:

The person who nominates or makes appointments to offices, should be known. His own office, his own character, his own fortune should be responsible. He should be alike unfettered and unsheltered by counsellors. No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view. Instead of the dishonourable intercourse, which I have already mentioned, an intercourse of a very different kind should be established--an intercourse of integrity and discernment on the part of the magistrate who appoints, and of gratitude and confidence on the part of the people, who will receive the benefit from his appointments. Appointments made and sanctioned in this highly respectable manner, will, like a fragrant and beneficent atmosphere, diffuse sweetness and gladness around those, to whom they are given. Modest merit will be beckoned to, in order to encourage her to come forward. Bare-faced impudence and unprincipled intrigue will receive repulse and disappointment, deservedly their portion.

Joseph Story, Commentaries on the Constitution:

Nor is it to be expected, that the senate will ordinarily fail of ratifying the appointment of a suitable person for the office. Independent of the desire, which such a body may naturally be presumed to feel, of having offices suitably filled, (when they cannot make the appointment themselves,) there will be a responsibility to public opinion for a rejection, which will overcome all common private wishes. Cases, indeed, may be imagined, in which the senate from party motives, from a spirit of opposition, and even from motives of a more private nature, may reject a nomination absolutely unexceptionable. But such occurrences will be rare.

I don't want to overclaim the significance of these passages, but both passages do suggest that my transparency argument resonates with concerns that were expressed during periods far closer to the framing and ratification of the Constitution than is our own time.

Thought Experiment Number Two It does seem unlikely, but let's imagine what might happen if George Bush were to start surfing the blogosphere and became convinced that he does, in fact, have the power to call the Senate into executive session. The President then sends a formal notice of the session to the Senate. Given Rule XXIX, it seems most likely that the Senate would agree to appear--although one can certainly imagine that some members of the minority caucus might decide to boycott the executive session. Now imagine that the President speaks to the assembled members of the Senate, stating his view that he has the power to ask each Senator for her or his advice and consent. Surely, at this point, some member of the Senate would object to the proceedings, arguing that the Senate, even when in executive session, must follow its own rules. At this juncture things might go in any number of directions, but here is one possibility. Suppose that the chair, a member of the Senate majority, were to rule that the Senate's rules do not apply when the Senate is in a special executive session for the purpose of giving the President advice and consent. What then? Well surely the ruling of the chair would be appealed to the whole Senate, and such a point of order is not debatable and hence not subject to the filibuster. But how would the Senate vote? It would be a dramatic moment--indeed, one of the most dramatic moments in our constitutional history. Undoubtedly, many members of the President's own party would be reluctant to see the Senate's power eroded by a vote to sustain the chair, but members of the majority would also be under the most intense of pressure to vote with their leadership and their President under these circumstances.

Conclusion Hypotheticals are good clean fun, but surely my second thought experiment is not in the cards. Surely, neither the President nor the Senate would wish to risk a constitutional crisis. Surely, there is room for compromise between the President, the Senate Majority, and the Senate Minority over judicial nominations. Surely there is a resolution of the current conflict that is better than multiple filibusters or mass recess appointments or nuclear options or the President summoning the Senate to the White House as an executive council. Surely.