The nullification of Supreme Court opinions by the States

You ought to read “Nullification, Now Coming to the Supreme Court? Mike Huckabee suggests that if the justices rule that gay-marriage bans are unconstitutional, states don’t need to listen” by David A. Graham in the Atlantic (January 21, 2015).* I don’t know much, but I do know that former Governor Huckabee is wrong on the law, and, what’s worse, his argument threatens the very foundation of our federal government.

I have a rather simple question for Mr. Huckabee to illustrate the poverty of his nullification argument, and that is:

If the State of New York were to say that the Constitution, the Second Amendment and the Fourteenth Amendment did not mean what District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010) proclaimed, would you agree that the State of New York could as a federal constitutional matter pass a law banning all guns in New York save for those used by the police since New York had no responsibility to follow Heller or McDonald?

I am willing to presume that Mr. Huckabee is a serious and well-intentioned person. That being so, he ought to seriously grapple with the implications of his argument if he wants serious people to give serious consideration to him and to it. At this point, the former Governor is merely throwing rotten meat to a hungry but lunatic fringe.**

RGK

*As always, thanks to Howard Bashman and How Appealing for keeping me informed.

**One would have hoped that Mr. Huckabee, who hails from Arkansas, would have learned from President’s Eisenhower’s decision to enforce Brown v. Board of Education by nationalizing the Guard and sending 1,000 U.S. Army paratroopers from the 101st Airborne Division into Little Rock. See Transcript of Executive Order 10730: Desegregation of Central High School (1957).

Bad news for the Justices (and the rest of us)

As I have written before, I don’t like the idea of “term limiting” the Justices. I have even provided a “top ten” list of the ways to address the polarization problem without term limits. Now, with a tip of the hat to Howard Bashman, I see that Norm Ornstein, writing in the Atlantic, has concluded that: “The best solution to the increasingly politicized and unseasoned Court is to limit justices to 18-year terms.” Mr. Ornstein’s opinions matter in Washington.

While it is cheeky almost beyond imagining, I remind the Chief Justice that he once told Jeffrey Rosen, writing in the Atlantic, about the importance of the Court speaking with one voice. Rosen provided this cutline in January of 2007: “In an exclusive interview, Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas.

He added that:

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

Roberts suggested that the temperament of a chief justice can be as important as judicial philosophy in determining his success or failure.  . . . .

I will be dead and buried before term limits, once imposed upon the Justices, “trickle down” to lowly Article III district judges, but it becomes inevitable once imposed at the top. Kopf’s cry to the Gods (and the Chief): Don’t make me roll over in my grave.

RGK

The “nuclear option,” the Senate Judiciary Committee and no bozos

Photo credit: Michael Tutton per Creative Commons license.

Photo credit: Michael Tutton per Creative Commons license.

I really don’t care much one way or the other about the Senate using the “nuclear option” and changing the rules to allow a simple majority of the Senate to confirm (or not) the nomination of a person to become a federal district judge or a judge of a court of appeals. If I had a position, I suppose it would be this:  We already have a House of Representatives, and we all know how well that body works! But, I digress.

With the rule change, we are now confronted with a new reality in the confirmation process. I have a selfish interest. With Judge Joe Bataillon, a most able colleague, taking senior status in less than one year, President Obama will get to nominate his successor. There are plenty of really good candidates and it is not my job to weigh in about who is selected. But, I do have a legitimate interest in seeing to it that my next colleague is not a bozo. And this brings me to Andrew Cohen’s fascinating essay in the Atlantic on November 21, 2013, entitled “The Filibuster’s Demise Is Great News for Judicial Confirmation Hearings.

Cohen’s essential point is that the party-opposite now has a strong incentive to really probe the competence of judicial nominees during the Judiciary Committee hearings.  That is, if the opposition party has any sense, members of that party who sit on the Judiciary Committee will probe and put forth substantive criticisms of judicial nominees because the record of those proceedings will provide the last, best chance to convince loyalists that their President’s choice was the wrong one. It also means that the President needs to be certain that his or her nominees have the qualifications that will be necessary to survive intense grilling. He writes:

By the time you read this, a million words will have been read or spoken about what the new limits on the filibuster mean to Washington politics and to the American people. You will have heard all the screeds and justifications from the politicians and the advocates and the lawyers and the lobbyists. Let me just briefly add this note: The coming era means that Senate Judiciary Committee hearings for federal judges now will be consistently more intense, partisan, and revelatory than they have ever been before.

This, folks, is rockin’ good news.

. . .

Knowing they can no longer hold up nominees for no good reason on the Senate floor, Judiciary Committee Republicans instead will be forced to seek substantive ways to justify a decision to vote “no” on Obama nominees. They will ask tougher questions of the nominees and require those nominees to provide more candid and complete answers. They will complain if and when candidates fail to do so. Republicans, in other words, will seek to elicit information about these candidates during hearings that can be used against those candidates when their nominations come up for a vote. And when Democrats become the minority again in the Senate they, too, will employ these tactics.

This is not remotely a bad thing. Judicial nominees should be evaluated more in public on the merits of their work and the arcs of their careers. They should have to reveal more about their judicial ideologies, to the extent they have any. As now-Supreme Court Justice Elena Kagan famously said in 2010 during her love-in with the Judiciary Committee, judicial nominations have become “vapid and hollow” affairs in which the senators (of both parties) prattle on with prepared speeches while the candidates try to offer as little insight as possible about their judicial philosophies.

. . .

So the next judicial appointees to come before the Judiciary Committee are far more likely to face far more hostile questions than their immediate predecessors did. They had better be ready—for their own sake and for the sake of the administration that nominates them. In a perfect world, this would mean that the president, and future presidents, would work harder to nominate only the most qualified candidates and that the confirmation hearings become more substantive affairs.

More candor aimed at the American people? More insight into life-tenured judges? Political battles over the merits of people’s careers rather than over the size of our courts? If that’s the end result here, there is reason to applaud today’s historic change, no matter what side of the aisle you call home.

I do not generally agree with Mr. Cohen, but, on this matter, I hope against hope that he is right. Experience, competence, judgment, temperament and especially work ethic should be thoroughly and substantively (but fairly) probed during Senate Judiciary Committee hearings when a person has been nominated to become a federal district judge. If that happens, going “nuclear” was OK and the next federal district judge from Nebraska won’t be a bozo.

RGK

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