Congressional influence on SCOTUS ideology
 

Following is an article I wrote about whether and to what degree Congress should attempt to influence the ideology of the Supreme Court. My footnotes, alas, are not included. If you would like to know the sources of my quotations, I would be happy to provide them.

The article is RATHER LONG, but nothing you can't read start to finish in five minutes or so. Do you agree or disagree with my position?

EDIT: Come on guys, it isn't that long. Where's the love? :p

:hmm: :hmm: :hmm: :hmm:

:hmm: :hmm: :hmm: :hmm:

:hmm: :hmm: :hmm: :hmm:

First off, from a technical standpoint I have a small problem with this article: it doesn't seem to actually support your conclusion. You never exactly say why Congress shouldn't influence the ideological makeup of the court, except for in your conclusion. And then, it's not strongly supported. You say that allowing an ideological confirmation would make Congress have too much influence, but fail to comment on the fact that by not looking toward ideology you may allow the executive branch to have too much power.

Also you list 3 ideological criteria that supposedly should restrict Justices from being nominated and confirmed, each of which at one time or another has been supported by the Supreme Court (or in the case of private property protection, a lesser Court of Appeals).


As to the conclusion, I don't think there's a definitive answer. Ignoring ideology entirely turns a blind eye to the reality that personal ideology can and does influence judicial rulings. However, I tend to agree with you not so much to lessen the influence of Congress, but more because I tend toward strict constructionism of the Constitution. And I think it is much easier for a justice who is a strict constructionist to ignore any personal ideological bias, simply because there tends to be less ambiguity.

edit:hmm, there was an article here...

edited for redundancy

EDIT: Sorry for the delay, everyone - I think that I finally have it the way I want it... Firefox was crapping out on me, so I had to fall back to Explorer...

Adam, I found your thesis very well written and I applaud your work. My knowledge of the constitution doesn't rise to your level of scholarship, so I can't offer the critique you have requested.

Would you be willing to give me two concrete examples in the nominations of Roberts and Miers and how they apply to your argument?

Thank you for the compliment, Elphaba. Perhaps it will offset the less enthusiastic review I expect from my Con Law prof next week! :icare:

In the way of examples, I can only point you towards the testimony of Senators on either side of the issue, so here we go!

My former employer, Senator Susan Collins said the following:

Link to Collins' Press Office

This is precisely the correct attitude to have when it comes to the nominations process. Senator Collins looked at Roberts' qualifications and his "commitment to the rule of law", which is another way of saying his faithfulness to the Constitution. Now, the Senator is very strongly pro-choice: she was one of a handfull of Republicans to vote against the Partial Birth Abortion Ban Act of 2003, as an example. Even so, she voted to confirm John Roberts, a man who could very concievably vote to overturn Roe v. Wade. If only all Senators understood that the President is the one who decides the ideology of Federal Judges and the Senate simply makes sure he doesn't appoint Mier-, uh, cronies or otherwise unqualified people.

Dianne Feinstein, the sole woman on the Judiciary Committee, saw things differently:

Link to Senator Feinstein's Press Office

The very, very obvious translation of this statement is, "I don't think Roberts will uphold a woman's right to an abortion, so he doesn't 'cross my bar'." This is the danger I highlight in my thesis above: Senator Feinstein is saying that SCOTUS nominees must agree with her on the issue of abortion or she will vote against them. If enough Senators adopted this position, then the Court would no longer operate as a check on the legislative... I'll let you fill in the rest of the argument, but you see where this is going.

I hope that is a satisfactory set of examples. If you were looking for something else, by all means, tell me and I'll try to provide it.

Thanks, Politico. That clarifies it very well for me. It doesn't change my confusion about nominating Miers though. :D

Yeah, so nobody seems interested in reading my article, I gather. It actually isn't all that long: just under six pages double spaced in Word.

I highly encourage you to read the article, but if you feel you don't have the time, just answer the following question:

Should the Congress attempt to influence the ideology of the Supreme Court? If so, to what degree?

I say no, simply because SCOTUS is the interpreter and marshall of the constitution, not the long arm of congress. congress can initiate a change in the constitution but they can't interpret the constitution for SCOTUS.

Well written article. You have gone much deeper into the nomination process than I have ever attempted.

Unfortunately ideological differences seem to be very much a part of the "advice and consent" game today. This is resulting in President's having to find appointees who have never really let their true opinions about the important issues of the day be known. This probably eliminates quite a few very qualified people from consideration.

I find it hard to accept that smart people like Roberts and Miers have been able to operate so long without a clear understanding of where they stand on some important issues. But as it turns out, maybe they are/were very smart to do so, as it makes them much more likely to be nominated and confirmed.

I guess the lesson to be learned by anyone who hopes to be nominated is to keep your opinions on the important issues of the day to yourself.