12:00: The grilled chicken salad–no arugula–has been served and we’re getting ready to start the panel examining the Bush administration’s take-no-prisoners approach to judicial selection.
12:06: We spoke too soon regarding the service of the salad. We should be under way in just a few more minutes.
12:14: The panel officially begins. Nan Aron notes that two themes seemed to develop over the course of the morning. 1: The critical role the courts play in our lives and 2: What the human costs are when a court system is not responsive to litigation brought to redress problems. This panel will more closely examine the role judicial appointments play in this broader question and where we go from here.
12:17: Olatunde Johnson, our moderator has taken the podium. We’re blushing from her praise of AFJ, but we’ll err on the side of modesty and not go too into detail. Nevertheless, thanks for the kind words Olatunde. She notes that fundamental questions of access to justice happen at all levels. She jokes that when she clerked for Justice Stevens, they felt that the job of SCOTUS was to review the Ninth Circuit, chuckles abound. She then explains that the court was taking fewer and fewer cases because of an increasing ideologically unanimity on the circuits due to the success of courtpacking–no more circuit splits that need to be resolved by the Supreme Court.
12:21: More from Olatunde Johnson. She loves teaching her students at Columbia about access to justice since it is the core of our legal system. She then poses the question of how we can address judicial selection in the next administration. Bush made it quite clear from the get-go that the courts were very important to him and that he put forward nominees that made good on his ideological promises. We’re now being introduced to this session’s panelists. Both have experience covering the courts for the media and a popular audience, so they can address the issue on both the academic level, but on a more mainstream plane, as well. We are joined by Linda Greenhouse, formerly of the New York Times and Steven Wermiel of Washington College of Law.
12:25: Question 1: How have the Bush nominees shaped the courts, and has there been a change in the tenor of the courts?
Linda Greenhouse is the first panelist at bat. She notes that the Ninth Circuit is the only one that is majority-Democratic appointed and by a very slim major. 10 are majority Republican-appointed and 1 is split. This is critical in how cases come up to Supreme Court review because there are far fewer circuit splits, just as Prof. Johnson observed. Also, the SG’s office isn’t filing as many petitions because the government is having great success in most circuits, so there is no need to file for review by SCOTUS.
12:29: Observations from an article on assessing the Rehnquist Court that now-Chief Justice Roberts clerked for. With the Rehnquist Court, when there is a conflict between state and citizen, state will win. Conflict between state and federal, state will win, question of whether a person can get access to the court, the decision will be no access.
12:31: The Seattle school case is really the marker of the Roberts Court for Linda Greenhouse. There was no circuit conflict, the plans had come about through democratic means at the local level. The Court gratuitously took the case without a circuit conflict. What she thinks is so interesting and indicative CJ Roberts’ plurality opinion: any government counting by race is unconstitutional and there is no predicate for any school district to fix. He lost Justice Kennedy. Before, Kennedy had never voted to uphold any counting by race, but the Roberts opinion went too far even for Justice Kennedy. The Chief Justice was so unwilling to move off his agenda-driven holding to get the gettable Justice Kennedy to speak as a unified court is indicative of what CJ Roberts really wants to do.
12:35: Linda Greenhouse on the al-Marri case. The 4th Circuit shows how split the circuits are internally with the two different approaches, approaches that seem to be demarcated along appointment lines. She also sees the 8th Circuit’s decision on the SD informed consent law as indicative as the change. The 8th is one of the most conservatively dominated of any. Doctors argued it was compelled government speech and got an injunction. 6 of the 7 judges who overturned the injunction on the 8th were W. Bush appointees saying that the law was okay because of their views on when life begins, and not based on the law.
12:37: Prof. Wermeil also wants to discuss the Seattle/Louisville school cases. His particular point of interest that will forever define CJ Roberts: the end of his opinion is so anti-historical it is astonishing. The CJ quotes arguments from the NAACP from Brown v. Board, cavalierly saying that the current programs are no different from the decades of racial animus and bigotry that marked the segregation era, an astonishingly anti-historical approach. The professor says that more than anything else made him sorry he ever thought that he took a “Well, CJ Roberts is probably the best we’re going to do.”
12:43: George W. Bush’s legacy–a bench that is less diverse by metrics of either race or gender than it was when he took office. We’ll be giving you updated statistics when we release our judicial selection report next week.
12:47: Hallmark of the Bush courts is a hostility to standing–the ability of people being able to have their grievances heard, particularly in environmental, civil rights and employment cases. Another hallmark is to look at what happenes when lower courts go to en banc review–the full appeals court redecides the case after a three judge panel has decided the case. There is a group of judges that disagree with the panel and couldn’t get their colleagues to hear the case, so there are more dissents from the process itself because they are not satisfied with the outcome. The sole purpose of these dissents is to move the Supreme Court to action–it’s subtle and technical, but it highlights what is happening.
12:51: Linda Greenhouse: There has been a shift–it is now de rigeur for conservative appointees to be incredibly ideological.
12:54: Question two from Olatunde Johnson: Where does the selection and appointment process go from here? CJ Roberts dodged so many questions in order to avoid giving his views. He was asked about Brown, but gave vague answers. And, of course, we now know exactly his view. How can we improve the process to get more about judges’ views?
12:55: Linda Greenhouse: It is important not to forget the Senate’s co-equal role in the process. Things go off the rails when a president decides to press his agenda and the boundaries with his nominees. Robert Bork is an example–some say this shows how the process of confirmation is broken, but it really started with President Reagan. He was told “anybody by Bork” and then defiantly nominated Robert Bork, the ur-conservative ideologue. So, again, this starts with the president.
12:58: Professor Wermeil doesn’t have clear ideas how to fix the process, but there is a need to get real answers. Thomas said he’d never thought or talked about abortion in his hearings, then nine months later wrote that Roe should be overturned. There is focus on CJ’s Roberts’ comment about being an umpire, but that doesn’t mean anything. When was the last time you left the stadium thinking “Gee, wasn’t that a well-umpired game?” It tells us very little.
1:02: There are historically political appointments, but they were more electoral than judicial. Wermeil thinks things changed from electoral to a question of the direction of the court–he notes that our moderator from the last panel, his colleague at AU Herman Schwartz, would disagree with this characterization, and the process has long been about the direction of the courts. Regardless, senators need to worry less about how they appear and more about getting real answers from nominees.
1:03: Linda Greenhouse: The Fifth Circuit is earthmoving. Bush put up very young lawyers with no record so the Senate couldn’t get a handle on them. We shouldn’t be buying a pig in a poke, but in many cases that’s what we get because nominees dodge around views. The Souter hearings were fascinating. He seemed to be a blank slate, but he was forthcoming in his hearings. By the end of the hearings, many saw the David Souter that Justice Souter has become.
1:06: What is the role of the press in getting the word out to the public on judges, legal decisions and the courts? Is there too much focus on process–the fights–than there is on substance? How will this play out?
1:08: Professor Wermeil is disapponted that there isn’t more discussion about the courts as an electoral issue because it is an important conversation to have. He notes a comment from conservative litigator Jay Sekulow–the legacy of the president is judges. In 2007 he said judges would play a big role in the election, and that has not come to pass. The only time there has been significant focus were back-to-back interviews at Saddleback Church when they were both asked. Regardless of where you are on the issue, there really needs to be more focus. He hopes it will come up in debates and that legal publications at the very list will send questionnaires to the candidate.
1:13: Linda Greenhouse on journalism. There has been something of a maturation recently–the journalistic duty is not to just quote both sides, but to give the audience some sense of what is happening. So, in the context of nominations, reporting could take the tack of “nominee refused to answer the question, but the record indicates this.” Vital to take confirmation hearings seriously and hold nominees to account. Some Washington press have gotten jaded as to confirmation hearings, but these hearings can become an opportunity as a window into a nominee depending on how the coverage is framed. Get to the issues, not just the process.
1:16: Wermeil on a good trend: Senate staffs are looking at the first day of hearings in order to really develop meaningful follow-up questions, which was no always the case. When Wermeil covered Rehnquist’s CJ confirmation, a witness was testifying about being a poll watcher in 1964 in Arizona. Senators kept asking the witness “Did you go to the polling place? Did you talk to the people?” Nobody got to the question “Was it Rehnquist?” until a note was passed after a break. This has improved significantly.
1:18: Questions begin. It seems like the sides are playing by different rules. One is following Marquess of Queensbury, the other is looking to Ultimate Fighting. (We here are Justice Watch are ladies and gentleman, if that tells you anything. ) So, how do we move the discourse/get on the same page?
1:20: Answer from Greenhouse–you need a core of committed electeds who are willing to take a real stand. We would add, it is vital that our elected officials hear from all of us in order to help drive this commitment.
1:22: Wermeil on temperment. This extends beyond “bright, thoughtful, honest,” to figuring out whether or not an individual is open-minded and will read the briefs and made decisions based on the arguments, and not coming to the question with a mind already made-up.
1:24: Another question. What about the argument that conservative movement arose in response to so-called liberal overreach, and is a product of balance and not pushing an agenda per se?
Greenhouse says that certainly the rise of the conservative legal movement was the result of decisions that they didn’t like, but the concerted effort starting with the Reagan years to find the law professors and inculcating the young is a new model and they’ve been very successful. Wermeil says that yes, they are reacting to the Warren Court, but no president was responsible for the way that court developed, as the most progressive in modern history. The nomination process in terms of the role of president didn’t develop it, but the justices and the times, but the conservative movement is driving from a nomination process.
1:29: Olatunde Johnson wraps up with another exhortation to make sure to keep thinking about and talking about judges.
1:30: Nan Aron closes the panel with a thank you, and the observation that the courts of appeals are out of whack, and that AFJ will do its utmost to reassert balance back to the courts so they once again become responsive to ordinary Americans. She tells us the story of winning her first argument. Nan was in front of a Republican-appointed judge. She rehearsed, rewrote and practiced her arguments to certify a class action against Hewlett-Packard and the judge heard the case with an open mind and she won. These days, lawyers can know how their case will come out before they make arguments or write a brief just based on who is on the panel. We need to work together to make changes.
Thank you all for reading this, video will be available soon.