Today Senator Lindsey Graham (R-SC) spoke like a person prepared to defer to the President's choice of Judge Sonia Sotomayor and vote for her confirmation despite his disagreements with her judicial philosophy. While I disagree with Graham on the Senate's role regarding judicial appointments, I must credit him with consistency on this issue. Graham said:
“My inclination is that elections matter…President [Barack] Obama won the election, and I will respect that.” He criticized Obama’s rationale, when a senator, for voting against the nominations of Chief Justice John Roberts and Justice Samuel Alito, but he added, “We’ve got a chance to start over. I hope we take that chance. . . . My belief is that you will do well. Whether I agree with you on the big things in life is not relevant here. My question is whether you have earned the right to be here. . . .
(Emphasis supplied.) With due respect to Senator Graham, I disagree with him both on the "big things" regarding judicial philosophy and the fact that if he disagrees with Judge Sotomayor on those "big things," he should still vote in favor of Judge Sotomayor. He should not. He abdicates his responsibility as a Senator. More . . .
On the question of judicial philosophy, a remarkable thing happened today in the hearings - a Senator presented a coherent and substantive view of the role of the Supreme Court (and all courts) in our political system. that Senator was Sheldon Whitehouse:
I particularly reject the analogy of a judge to an "umpire" who merely calls "balls and strikes." If judging were that mechanical, we wouldn't need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction.
The "umpire" analogy is belied by Chief Justice Roberts, though he cast himself as an "umpire" during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that "[i]n every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Some umpire. And is it a coincidence that this pattern, to continue Toobin's quote, "has served the interests, and reflected the values of the contemporary Republican party"? Some coincidence.
For all the talk of "modesty" and "restraint," the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman's health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Over and over, news reporting discusses "fundamental changes in the law" wrought by the Roberts Court's right wing flank. The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito. Some "balls and strikes."
So, Judge Sotomayor, I'd like to avoid codewords, and look for a simple pledge: that you will decide cases on the law and the facts; that you will respect the role of Congress as representatives of the American people; that you will not prejudge any case, but listen to every party that comes before you; and that you will respect precedent and limit yourself to the issues that the Court must decide; in short, that you will use the broad discretion of a Supreme Court Justice wisely and in keeping with the Constitution.
Let me emphasize that broad discretion. As Justice Stevens has said, "the work of federal judges from the days of John Marshall to the present, like the work of the English common-law judges, sometimes requires the exercise of judgment – a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision."
Look at our history. America's common law inheritance is the accretion over generations of individual exercises of judgment. Our Constitution is a great document that John Marshall noted leaves "the minor ingredients" to judgment, to be deduced by our Justices from the document's great principles. The liberties in our Constitution have their boundaries defined, in the gray and overlapping areas, by informed judgment. None of this is "balls and strikes."
It has been a truism since Marbury v. Madison that courts have the authority to "say what the law is," even to invalidate statutes enacted by the elected branches of government when they conflict with the Constitution. So the issue is not whether you have a wide field of discretion: you will. As Justice Cardozo reminds us, you are not free to act as "a knight-errant, roaming at will in pursuit of [your] own ideal of beauty or of goodness," yet, he concluded, "[w]ide enough in all conscience is the field of discretion that remains."
The question for this hearing is: will you bring good judgment to that wide field? Will you understand, and care, how your decisions affect the lives of Americans? Will you use your broad discretion to advance the promises of liberty and justice made by the Constitution?
(Emphasis supplied.) In a ten minute presentation, Senator Whitehouse brought forth a coherent and compelling visions of the role of the judiciary, particularly the Supreme Court. If I may be so bold, it echoes my own views of constitutional interpretation:
My view is that a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented. I believe that the proper function of Constitutional interpretation does not entail reading the Constitution as one reads a statute - it requires more than a formalized reading of the text and search for specific findings of the original understanding of the specific text in question and the applicability to the case at hand. It requires a unifying approach, one that seeks to read the Constitution as a whole, harmonizing the component parts of the Constitution, the empowering provisions, the limiting provisions, the individual rights created and preserved. It requires understanding the purpose of the creation of a third coequal branch, the judicial branch, with the attendant common law judicial powers and restraints.
The first great Chief Justice, John Marshall, did yeoman work in establishing this role and approach for the Supreme Court. I argue that Marshall's jurisprudence established that Constitutional interpretation requires both respect for the original purpose and application of Common Law principles to discern the proper application of original purpose to the specific case presented.
The phrase "Living Constitution" is often used to disparage this approach. But I think, properly understood, the phrase is very appropriate - the purpose of the Constitution lives and grows - and the original PURPOSES are essential to that growth - by understanding the WHY the Framers wrote what they wrote and serving the original PURPOSE by transposing that purpose upon the specific case.
In a later post, I buttressed my argument with support from two great constitutional thinkers, Yale University Law Professor Jack Balkin and Chief Justice Joseph Story, who succeeded John Marshall:
Professor Jack Balkin, of Balkinization, issued a paper recently that had similar thoughts, much better expressed of course:
This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse "original meaning" with "original expected application."
Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of "text and principle." This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.
Chief Justice Story wrote:
[A] constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. No interpretation of the words, in which those powers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects. That would be to destroy the spirit, and to cramp the letter. It has been justly observed, that "the constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specification of its powers, or to declare the means, by which those powers should be carried into execution. It was foreseen, that it would be a perilous, and difficult, if not an impracticable task. The instrument was not intended to provide merely for the exigencies of a few years; but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen, what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require."21 Language to the same effect will be found in other judgments of the same tribunal.22
If, then, we are to give a reasonable construction to this instrument, as a constitution of government established for the common good, we must throw aside all notions of subjecting it to a strict interpretation, as if it were subversive of the great interests of society, or derogated from the inherent sovereignty of the people. And this will naturally lead us to some other rules properly belonging to the subject.
Where the power is granted in general terms, the power is to be construed, as coextensive with the terms, unless some clear restriction upon it is deducible from the context. We do not mean to assert, that it is necessary, that such restriction should be expressly found in the context. It will be sufficient, if it arise by necessary implication. But it is not sufficient to show, that there was, or might have been, a sound or probable motive to restrict it. A restriction founded on conjecture is wholly inadmissible. The reason is obvious: the text was adopted by the people in its obvious, and general sense. We have no means of knowing, that any particular gloss, short of this sense, was either contemplated, or approved by the people; and such a gloss might, though satisfactory in one state, have been the very ground of objection in another. It might have formed a motive to reject it in one, and to adopt it in another. The sense of a part of the people has no title to be deemed the sense of the whole. Motives of state policy, or state interest, may properly have influence in the question of ratifying it; but the constitution itself must be expounded, as it stands; and not as that policy, or that interest may seem now to dictate. We are to construe, and not to frame the instrument.23
. . . It has been observed with great correctness, that although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from the letter. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case, for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one, where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.26 This language has reference to a case where the words of a constitutional provision are sought to be restricted. But it appears with equal force where they are sought to be enlarged.
. . . No construction of a given power is to be allowed, which plainly defeats, or impairs its avowed objects. If, therefore, the words are fairly susceptible of two interpretations, according to their common sense and use, the one of which would defeat one, or all of the objects, for which it was obviously given, and the other of which would preserve and promote all, the former interpretation ought to be rejected, and the latter be held the true interpretation. This rule results from the dictates of mere common sense; for every instrument ought to be so construed, ut magis valeat, quam pereat.27 For instance, the constitution confers on congress the power to declare war. Now the word declare has several senses. It may mean to proclaim, or publish. But no person would imagine, that this was the whole sense, in which the word is used in this connexion. It should be interpreted in the sense, in which the phrase is used among nations, when applied to such a subject matter. A power to declare war is a power to make, and carry on war. It is not a mere power to make known an existing thing, but to give life and effect to the thing itself.28 The true doctrine has been expressed by the Supreme Court: "If from the imperfection of human language there should be any serious doubts respecting the extent of any given power, the objects, for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction."29
. . . Where a power is remedial in its nature, there is much reason to contend, that it ought to be construed liberally. That was the doctrine of Mr. Chief Justice Jay, in Chisholm v. Georgia;30 and it is generally adopted in the interpretation of laws.31 But this liberality of exposition is clearly inadmissible, if it extends beyond the just and ordinary sense of the terms.
. . . In the interpretation of a power, all the ordinary and appropriate means to execute it are to be deemed a part of the power itself. This results from the very nature and design of a constitution. In giving the power, it does not intend to limit it to any one mode of exercising it, exclusive of all others. It must be obvious, (as has been already suggested,) that the means of carrying into effect the objects of a power may, nay, must be varied, in order to adapt themselves to the exigencies of the nation at different times.32 A mode efficacious and useful in one age, or under one posture of circumstances, may be wholly vain, or even mischievous at another time. Government presupposes the existence of a perpetual mutability in its own operations on those, who are its subjects; and a perpetual flexibility in adapting itself to their wants, their interests, their habits, their occupations, and their infirmities.33
. . . And this leads us to remark, in the next place, that in the interpretation of the constitution there is no solid objection to implied powers.37 Had the faculties of man been competent to the framing of a system of government, which would leave nothing to implication, it cannot be doubted, that the effort would have been made by the framers of our constitution. The fact, however, is otherwise. There is not in the whole of that admirable instrument a grant of powers, which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.38 There is no phrase in it, which, like the articles of confederation,39 excludes incidental and implied powers, and which requires, that every thing granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies, which had been excited, omits the word "expressly," (which was contained in the articles of confederation,) and declares only, that "the powers, not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people;" thus leaving the question, whether the particular power, which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument. The men, who drew and adopted this amendment, had experienced the embarrassments, resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions, of which its great powers will admit, and of all the means, by which these may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredient which compose those objects, be deduced from the nature of those objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why, else, were some of the limitations, found in the ninth section of the first article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term, which might prevent its receiving a fair and just interpretation. In considering this point, we should never forget, that it is a constitution we are expounding.
Extreme reactionary conservatives like Chief Justice Roberts and Justices Scalia, Alito and Thomas are certainly free to demur from the views of constitutional interpretation that were espoused by Chief Justice Jay, Marshall, Story and for most of the history of the Supreme Court. But it would be a brazen lie to pretend that they are judicial moderates and restrained jurists. Quite the opposite - they are extreme and radical activists.
It is clear that this is the judicial philosophy embraced by the Republican Party and by GOP senators like Jeff Sessions and Lindsey Graham. It is a philosophy of right wing judicial activism. They have every right to espouse it, advocate for it, vote for judges who support it and against judges who do not.
It is for that reason that I disagree with the pronouncements of both Senator Graham (who criticized then Senator Obama's approach regarding his Senatorial responsibilities), who refuses to assume his constitutional responsibilities of advice and consent, and Senator Sessions, who does exercise such responsibility, but in favor of an extreme right wing philosophy of judicial activism.