July 30, 2007
Judiciary Committee Clown Show
By Clarice Feldman
The left is astir again. From Slate to the op ed pages of the New York Times and the People for the American Way (PFAW) handouts, it is clear that the left is ginning up to replay their war against any judicial nominee this President may yet propose for any forthcoming vacancy on the Supreme Court.
People for the American Way, funded by rich lefties George Soros and Peter Lewis, has consistently been the maestro of the left's judicial nominee opposition. In its most recent press release its president, Ralph Neas says:
"Under Chief Justice Roberts, the Court has turned sharply to the right, and far out of the mainstream of American thought. Rights and freedoms Americans take for granted stand in peril, and the progress that we have made in social justice over the past 70 years is at risk.
"In just their first full term together, a new right-wing bloc on the Court has signaled that it is willing to roll back reproductive choice for women, curb free expression, favor corporations over workers in discrimination cases, limit access to the courts for ordinary Americans, and start to tear down the wall between church and state that protects religious liberty for all Americans.
"While Chief Justice Roberts and Justice Alito gave lip service to respect for the established rulings of the Court in their confirmation hearings, they have not hesitated to tear down or undermine long-held rulings. This Court has shown the same respect for precedent that a wrecking ball shows for a plate glass window.
Senator Schumer, fresh off his outrageous, proven to be unwarranted, suggestions that the Attorney General perjured himself before the Senate Judiciary Committee, has said that he was hoodwinked by the confirmation hearing testimony of Chief Justice Roberts and Justice Alito and, therefore, will block any new nominees to the Court by the Bush Administration.
(I note that this hoodwinking charge seems inexplicable since Schumer voted against the confirmation of both men. How duped is that?)
In other stories an off-hand remark by Senator Specter to the effect that he was going to review the confirmation hearing testimony of Roberts and Alito has been spun to suggest he thinks there's merit in Schumer's claim. But he later indicated this is not the case, and that he was responding to an assertion by Justice Breyer to him at a conference respecting the new justices' fealty to the concept of Stare Decisis, a complex doctrine in application, respecting the appropriate weight to give to prior decisions.
I have reviewed the cases Breyer seems to have referred to and the confirmation testimony of Roberts and Alito and will as soon as time permits detail why I think these charges are unfounded. (Indeed, I think one might say Breyer is projecting, for his dissents in these cases are inconsistent with his views as expressed in his confirmation hearings. In the meantime, here is Justice Breyer's record respecting the judicial deference owed to prior precedent and his own confirmation hearing testimony on the issue.
The Judiciary Committe and American people deserve better than this clown show.
1) Justice Breyer has authored opinions explicitly overruling precedent:
* United States v. Hatter, 532 U.S. 557 (2001)
* Lapides v. Board of Regents, 535 U.S. 613 (2002)
2) On several other occasions he has helped form a majority to overrule precedent. E.g.:
* Atkins v. Virginia, 536 U.S. 304 (2002)
* Lawrence v. Texas, 539 U.S. 558 (2003)
* Crawford v. Washington, 541 U.S. 36 (2004)
* Roper v. Simmons, 125 S. Ct. 1183 (2005)
3) He has joined at least one dissent advocating overruling precedent:
* City of Boerne v. Flores, 521 U.S. 507 (1997) (O'Connor, J., joined by Breyer, J.)
4) He has joined a dissent indicating that he (and others) won't hesitate to overrule the decision from which they are dissenting.
* Carhart v. Gonzales (2007) ("A decision so at odds with our jurisprudence should not have staying power.") (Ginsburg, J., dissenting, joined by, inter alia, Breyer, J.)
5) Excerpts from Justice Breyer's Judiciary Committee hearing:
"I think that the law itself provides ways of departing from past law. There are circumstances in which it is appropriate according to the law to depart from the prior decision. Those have been listed by the Supreme Court recently. You look to the earlier decision and you ask how wrong was that decision. You look to see the ways and the extent to which the law has changed in other related ways. You look to see the extent to which facts have changed. You look to see how much difficulty and trouble that old rule of law that seems badly reasoned has created as the courts have tried to apply it. And then, going the other way, you look to see the extent to which there has been reliance on that old past law." (Hearing Tr. p. 234)
"My view is that stare decisis is very important to the law. Obviously, you can't have a legal system that doesn't operate with a lot of weight given to stare decisis, because people build their lives, they build their lives on what they believe to be the law. And insofar as you begin to start overturning things, you upset the lives of men, women, children, people all over the country. So be careful, because people can adjust, and even when something is wrong, they can adjust to it. And once they have adjusted, be careful of fooling with their expectation. Now, that is the most general forum....
"When I become a little bit more specific, it seems to me that there are identifiable factors that are pretty well established. If you, as a judge, are thinking of overturning or voting to overturn a preexisting case, what you do is ask a number of fairly specific questions. How wrong do you think that prior precedent really was as a matter of law, that is, how badly reasoned was it?
You ask yourself how the law has changed since, all the adjacent laws, all the adjacent rules and regulations, does it no longer fit. You ask yourself how have the facts changed, has the world changed in very important ways. You ask yourself, insofar, irrespective of how wrong that prior decision was as a matter of reasoning, how has it worked out in practice, has it proved impossible or very difficult to administer, has it really confused matters. Finally, you look to the degree of reliance that people have had in their ordinary lives on that previous precedent.
"Those are the kinds of questions you ask. I think you ask those questions in relation to statutes. I think you ask those questions in relation to the Constitution. The real difference between the two areas is that Congress can correct a constitutional court, if it is a statutory question, but it can't make a correction, if it is a constitutional matter. So be pretty careful."
(Hearing Tr. p. 291)