For the past several years eminent University of Chicago law professor Cass Sunstein seems to have devoted a significant part of his professional activities to devising ways and means of helping the Democrats block the appointment of judges nominated by President Bush.
In a hearing on one of the first judges the Democrats opposed, Charles Pickering of Mississippi, Sen. Orrin Hatch (R, Utah) described one of Prof. Sunstein’s better known contributions:
I am concerned about the tenor and tone of the attacks that intolerant left-wing special interest groups have launched against Judge Pickering because they indicate to me a broader agenda at work here. I see these attacks as part of an organized campaign by the usual suspects to “change the ground rules” for the confirmation of federal judges. This is precisely what Professors Laurence Tribe and Cass Sunstein and activist Marcia Greenberger advocated to 42 Democratic Senators who attended a retreat last year in Pennsylvania as reported by the New York Times. The goal of that retreat was to plot a way to hinder confirmation of President Bush’s judicial nominees. The conclusion they reached, according to someone in attendance who was quoted by the Times, was “for the Senate to change the ground rules.”
Today’s hearing is the culmination of nearly a year of effort to change the ground rules by injecting a political litmus test into the confirmation process….
One of the staples of Prof. Sunstein’s recent writings is his attempt to make a distinction between good conservatives and bad conservatives. For example, from a recent New Republic:
or a quarter-century, American conservatives have been split between two camps. The first camp favors the sort of conservatism represented by Justice Felix Frankfurter, the great conservative on the Warren Court. Frankfurterian conservatives like to proceed in small steps. They want to minimize the judicial role in American life. They respect democratic prerogatives. Frankfurterians despise Roe v. Wade, but they are also reluctant to use the Constitution to strike down affirmative action programs, environmental regulation, or campaign finance reform laws.
The second camp favors the sort of conservatism once represented by Robert Bork and now by Clarence Thomas. Thomistic conservatives believe that the Supreme Court should enforce the “original understanding” of the Constitution, and that radical steps are necessary to restore the Lost Constitution. They do not want to minimize the role of judges in American life. They are perfectly willing to strike down affirmative action programs, gun control legislation, environmental regulations, restrictions on commercial advertising, campaign finance laws, and much more. And if it turns out that their Constitution overlaps with the platform of the Republican Party, well, so much the better.
And, almost the same thing, from today’s Chicago Tribune:
Ever since the election of President Ronald Reagan, American conservatives have been sharply divided about what was wrong with the liberal activism of the Earl Warren court era of the 1950s and ’60s. The division has led to two radically different views about the proper role of the U.S. Supreme Court in American life.
The first view reflects the principled conservatism represented by Justice Felix Frankfurter, the great conservative on the Warren court. Frankfurter thought that the Supreme Court should respect the decisions of elected officials. He despised the court’s willingness to enter what he called the “political thicket.”
Frankfurter was a judicial minimalist, in the sense that he wanted the court to proceed in small, incremental steps. To minimalists, Roe vs. Wade symbolizes judicial hubris; they do not want to create new rights or to expand on the right to privacy. But minimalists disapprove of right-wing judicial activism no less than they disapprove of its left-wing sibling. They are reluctant to use the Constitution to strike down affirmative action programs, gun control laws, environmental regulation or campaign finance reform. They think that questions of this kind should be resolved democratically, not by the judiciary.
The second camp embodies the brand of conservatism once represented by Robert Bork and now by Antonin Scalia and Clarence Thomas. Conservatives of this kind reject minimalism in favor of a kind of fundamentalism, in the sense that they believe that the Supreme Court should discover and enforce the “original understanding” of the Constitution. In their view, liberal activists have failed to pay attention to the Constitution itself. The real question is what the text, read in light of its history, asks courts to do.
Fundamentalists think that radical steps are necessary to restore what they now call the Lost Constitution or the Constitution in Exile. They are perfectly willing to strike down affirmative action programs, gun control legislation, environmental regulations, restrictions on commercial advertising, campaign finance laws and much more.
Prof. Sunstein repeated the same mantra in his very enlightening debate with Prof. Randy Barnett in Legal Affairs. For example:
[The judicial philosophy of the bad conservatives] invalidates some or many affirmative action programs, campaign finance reforms, gun control laws, environmental laws, congressional grants of standing to ordinary citizens, and restrictions on commercial advertising. It contains no right of privacy. It invalidates independent agencies, forbids regulatory agencies from exercising broad discretionary power, and bans many post-New Deal exercises of congressional power. It might even throw civil rights laws into question.
I will leave it to others to comment about gun control, environmental regulations, campaign finance, etc., etc., but I would like to say something about Prof. Sunstein’s repeated assertion that to challenge “affirmative action” a judge must be some sort of irresponsible radical fundamentalist Thomistic ideologue, so unlike the good conservatives who “respect the decisions of elected officials.”
It seems to me that Prof. Sunstein ignores the most important contribution of “elected officials” in the history of civil rights law, the Civil Rights Act of 1964. Take a look, again (since I’ve quoted it so many times), at Title VI of that Act:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. [42 U.S.C.
” judge must be some sort of irresponsible radical fundamentalist Thomistic ideologue, so unlike the good conservatives who “respect the decisions of elected officials.””
The problem is that Cass doesn’t say “radical” or “ideologue,” or even “good” or “bad.” At least not in the quotes you provided.
I have heard someone say that a thomistic court would strike down the civil rights act. Is that “bad” or “good”?
actus – If you think I’ve misrepresented Sunstein’s position, give specific examples. Yes, “good” and “bad” were my terms to describe his position. You can’t really think that’s unfair. Can you?
“You can’t really think that’s unfair. Can you?”
I think its an oversimplification that he avoids. For the most part, the quotes you gave are rather value neutral. “principled” and “fundamentalist” being the exception. But the rest of it makes no value judgements. I certainly doubt he would use the words “bad” and “good.”
I, however, have no problem with saying that a bad judge would strike down the civil rights act.
actus – If you really think that the Sunstein piece “makes no value judgements” as between good conservatives and bad conservatives, then you didn’t read the piece that I cited. By the way, I never said or implied that Sunstein used the words “good” and “bad” himself. What I said is that, those words or not, that’s what he meant. And I submit that no reasonable reading of what he said could reach a different conclusion.
“actus – If you really think that the Sunstein piece “makes no value judgements” as between good conservatives and bad conservatives, then you didn’t read the piece that I cited.”
No i read the parts you quoted. His description of what these judges want is rather neutral. The extent of activism that a Thomas would deploy is a feature to some people, not a bug.
Like I said, I don’t think Cass’s opinion is fairly reduced to bad/good, when its much more than that.
John,
Carl Cohen, a contemporary advocate of the CRA of 64, often talks in excrutiating historical detail in his speeches about the irony of how the racists who argued against the CRA on those grounds were right.
I should say Carl talks about how they were right on that one prediction — its clear from Carl’s speeches that he despised(s) the then-contemporaneous opponents of the CRA of 64.
Chetly – Prof. Cohen is absolutely right. And, as I’ve argued here before, today’s preferentialists are the current expression of a position that not only affirms the accuracy of the predictions of the racist opponents of the CRA. They also agree with the majority in Plessy that Justice Harlan was wrong, that the Constitution is not colorblind and with the “moderate” (and not a few racist) Republican leaders during Reconstruction who defeated the efforts of the radical former abolitionists to have the 14th Amendment outlaw all forms of racial discrimination. It’s a sorry ancestry, and one can see why the preferentialists must be glad that most people aren’t aware of it.
“They also agree with the majority in Plessy that Justice Harlan was wrong, that the Constitution is not colorblind ”
To be fair, don’t we have that affirmative action faces strict scrutiny like other constituional violations? Ie, the constitution is color blind? if it wasn’t, we wouldn’t need strict scrutiny.
If the Constitution were “colorblind,” we wouldn’t even have “strict scrutiny.” I’m not sure I’d go so far as to say that there should be no situation in which equal treatment should be suspended – but the Grutter court didn’t apply the same type of strict scrutiny that most would expect (I believe it was Kennedy’s dissent that acknowledged educational diversity as a hypothetically compelling interest, but dissented on the grounds that the implementation was by no means narrowly tailored or even for the purposes U-Mich. asserted, and Kennedy lambasted the court for not engaging in strict scrutiny).
John’s statement was a bit less inclusive than that though. I think he meant Harlan’s general principle was sound – not that the 14th Amendment is configured differently than others (although parts of it are).
John writes:
>>>But note that Prof. Sunstein is quite consistent in one important respect: notwithstanding his criticism of the bad conservatives who would run roughshod over the work of “elected officials,” he himself apparently believes that judges should be no more bound by the text of legislation or the original intent of its authors than they should of the text of the Constitution or the intent of its framers.”
This is where I have a difficult time with conservatives who favor “originalism.” The framers of the Constitution created a living document, IMHO, that could be amended. In other words, the framers knew that their decisions in 1787 may not be the correct ones for their descendants.
When Justice Thomas, an originalist, writes:
>>>”When interpreting the Constitution and statutes, judges should seek the original understanding of the provision
Cobra:
The framers of the Constitution created a living document, IMHO, that could be amended.
Yes, but the amendment process, the “living Constitution,” plainly was reserved to the initiative of the federal legislature and the consent of a supermajority of state legislatures — not the judiciary’s interpretation and redefinition of words.
And 27 amendments (really 18 or fewer events, since the Bill of Rights and the 13th-16th came in clusters) is a remarkably small number of changes. There are that many proposals in two or three election cycles to amend California’s Constitution. Personally, I’d prefer an easier amendment process (not as easy as California for the federal Constitution, but perhaps one that allowed initiatives to start in more and different ways, but with still stringent adoption requirements), but I don’t think judges should abrogate that power from the people or other branches of government.
Your correct that a judge subscribing to strict construction and a “framer’s intent” interpretation of the Constitution WHO WAS STUCK IN 1787 would rule the 1964 CRA unconstitutional. I don’t think though that “framer’s intent,” which is a well-embodied judicial doctrine to interpret unclear language (here in Michigan, case law has courts analyze judicial intent if the legislative language is ambiguous or its “plain meaning” isn’t readily ascertainable), means that one goes back in time and ignores all changes. One would understand the intent of each change that has occurred, and interpret them all in a coherent way. For example, the Civil Rights Act would be legal under the 14th Amendment adopted in the 1860s even though it wouldn’t have a constitutional place the way the Constitution was written in 1787. The “framer’s intent” that Thomas would analyze is the intent of the individuals in the 1860s had when fighting for and amending the Constitution – not the intent of the moronic three-fifths compromise that predated it by four score and seven years. Of course, I’m not saying that I’m in either camp – just that it would be possible to be a a strict constructionist and original intent judge and still interpret the Constitution in a modern way (I agree that if Thomas’ quote as you have it is correct, and he is referring solely to the construction at the time of 1787, then he’s off-base). I’m more into the plain language interpretations that many state courts try to stick strictly with – and that original intent is more often too hard to divine. Interpret the law as it reads, not as you think it should read.
cobra:
The framers of the Constitution created a living document…,
Actually, they created a text document.
…IMHO, that could be amended.
Right. Article V lays out how to do this. The procedures therein are the only ways the Constitution can be amended. It can of course be interpreted by presidents, states, Congress, courts, etc., but it can only be amended via the procedures provided in Article V.
Actus correctly points out that the CRA of 64 would be unconstitutional if “originalism” was applied.
No, he didn’t, and it wouldn’t. Note Section 5 of the 14th Amendment:
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The CRA did that. The Court, in Bakke and Grutter, ignored it.