August 8, 2007
Supreme Court Confirmation Hearings and the Senate
By Clarice Feldman
For most of our history, despite the Supreme Court's important role, Justices nominated by a President were subject to little scrutiny beyond character and ability. As several Senate Judiciary Committee members noted in the confirmation of Chief Justice Roberts, before 1955 nominees almost never appeared before the Committee. The nomination was simply voted on in the Senate. Indeed, Justice Minton (a Truman appointee) was confirmed despite his having turned down an invitation to appear before the Committee.
"[T]here have been 15 recess appointments to the Supreme Court. The first was John Rutledge, who was given a recess appointment to be Chief Justice by President George Washington in 1795. As noted in this report, President Eisenhower made three recess appointments to the Court - Earl Warren, William Brennan, and Potter Stewart. Brennan, in particular, was placed on the Court in the midst of the 1956 Presidential campaign, arguably for political reasons."
Of course, all the interim appointments had to be confirmed eventually by Congress, but in these days it is easy to imagine how much political fuss there'd be were such an interim appointment made by a President. Today, these appointments are subject to extreme scrutiny, with the George Soros/Peter Lewis-sponsored People for the American Way leading a variety of special interest groups attacking mercilessly the character and ability of nominees, themselves almost always very well-respected and accomplished members of the bar who make substantial sacrifices to take on these positions .
The reason for this increased and increasingly uncivil and unfair politicization of the confirmation process is hardly secret: As the federal government's size and scope increases, so does private interest in the outcome of these hearings. Moreover, it is clear that some rulings have in recent decades provided the Left with victories unattainable to it through the political process and unsustainable except outside the political process. Therefore, it is critically important to leftists that these decisions, particularly Roe v. Wade, remain in force. As it would be unacceptable to ask nominees how they'd rule in any particular matter, the hearings are a kind of minuet where questions such as those about the nominees' views of the importance of adhering to precedent are the cover for efforts at detecting their views on specific matters. With the most recent nominees on the Court have come some minor shifts in the Court's rulings on these very matters-matters of considerable concern to the most organized of the Democrat's base, and to the extent that the Senate Judiciary which must pass on the nominees, can hold up the nominations or force candidates to withdraw their nominations, the longer they can retain hope that the next Democratic President will have an opportunity to undo the work of this Court. That the shifts were minor was admitted by Linda Greenhouse, who in a June 28 editorial critical of the latest appointed justices, concedes:
"The court explicitly overturned only three precedents, two obscure cases from the 1960s that permitted excuses for missing court filing deadlines and a foundational antitrust decision from 1911 that prohibited manufacturers from imposing minimum retail prices."
That's not exactly the massive rollback of activist rulings that "conservatives had long yearned for" and "liberals feared." Greenhouse continued: "Other precedents were left standing, at least for the time being."
Having failed to block the last two most intellectually and personally formidable nominees to the Court, Senator Schumer has indicated that he will block from Senate consideration any further Administration appointments to the Court, claiming that Chief Justice Roberts and Justice Alito "hoodwinked" the Committee and, in particular have, once confirmed, undone the work of earlier courts in violation of the doctrine of stare decisis.
Justice Breyer, too, has reportedly claimed in a private conversation with Senator Specter that Roberts and Alito are not giving the doctrine adequate weight.
Senator Leahy has joined in with a criticism which reveals his own utter ignorance of the law:
Leahy also said that though he voted to confirm Chief Justice Roberts, Leahy now regrets that Roberts was ever nominated.
"I think in his actions and the actions in which he has joined, he has made the court an arm of the Republican Party," Leahy said.
I think it worthwhile to compare their testimony at their hearings on this issue with Justice Breyer's. Here is what Justice Breyer said on the issue of stare decisis during his confirmation hearings:
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 that decision was. 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 [snip]
"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)
As I noted about Justice Breyer in an earlier article:
-Justice Breyer has authored opinions explicitly overruling precedent;
-On several other occasions he has helped form a majority to overrule precedent;
-He has joined at least one dissent advocating overruling precedent:
-He has joined a dissent indicating that he (and others) won't hesitate to overrule the
decision from which they are dissenting.
Judge Roberts underwent very extensive questioning by the Senate Judiciary Panel in which most of the Democratic members showed a laughable fixation with themselves coupled far too often with a minimal understanding of law.
Among the many hours' worth of questions, Roberts frequently was asked about stare decisis. Here are excerpts from his statement and of those answers:
...the principle [of stare decisis] goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, ``To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.'' So even that far back, the Founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, the appearance of integrity in the judicial process.[snip]
The principles of stare decisis look at a number of factors, settled expectations one of them, as you mentioned. Whether or not particular precedents have proven to be unworkable is another consideration on the other side; whether the doctrinal bases of a decision have been eroded by subsequent developments. For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent. [snip]
I do think the considerations about the Court's legitimacy are critically important. In other cases--I'm thinking of Payner v. Tennessee, for example--the Court has focused on extensive disagreement as a grounds in favor of reconsideration. In Casey, the Court looked at the disagreement as a factor in favor of reaffirming the decision. So it's a factor that is played different ways in different precedents of the Court. [snip]
I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough--and the Court has emphasized this on several occasions. It is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis. [snip]
An overruling of a prior precedent is a jolt to the legal system. It is inconsistent with principles of stability and yet-- [snip] the principles of stare decisis recognize that there are situations when that's a price that has to be paid. Obviously, Brown v. Board of Education is a leading example, overruling Plessy v. Ferguson, the West Coast Hotel case overruling the Lochner era decisions. Those were to a certain extent jolts to the legal system, and the arguments against them had a lot to do with stability and predictability. But the other arguments--that intervening precedents had eroded the authority of those cases, that those precedents that were overruled had proved unworkable--carried the day in those cases.
A careful reading of his statements on the question of the deference to be paid prior decisions of the Court seems remarkably consistent with (though often more precise and detailed) those remarks made by Justice Breyer years earlier. That is, because both have expressed the generally accepted parameters-though, of course, not all of the longstanding exceptions -- to the doctrine.
Justice Sam Alito also underwent questioning (pdf text here) by the posturing character assassins on the Senate Judiciary Committee:
He, too, was grilled at length and explained his views on the value of honoring past precedents of the Court and the circumstances in which precedent must give way.
Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system, and it's the principle that courts in general should follow their past precedents, and it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interest, and it's important because it reflect the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. It's not an inexorable command, but it is a general presumption that courts are going to follow prior precedents, and as you mentioned [snip]
[R]eliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests, and people can rely on judicial decisions in a variety of ways. There can be concrete economic reliance. Government institutions can be built up in reliance on prior decisions. Practices of agencies and Government officials can be molded based on reliance. People can rely on decisions in a variety of ways. [snip]
Well, I think that the Court, and all the courts, the Supreme Court, my court, all the Federal courts, should be insulated from public opinion. They should do what the law requires in all instances. That's why they're not-that's why the members of the judiciary are not elected. We have a basically democratic form of Government, but the judiciary is not elected, and that's the reason, so that they don't do anything under fire. They do what the law requires. [snip]
Mr. Chairman, I think that the legitimacy of the Court would be undermined in any case if the Court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not be- it should not sway in the wind of public opinion at any time. [snip].
I agree that in every case in which there is a prior precedent, the first issue is the issue of stare decisis, and the presumption is that the Court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent. [snip]
I think the Constitution is a living thing in the sense that matters, and that is that it is-it sets up a framework of Government and a protection of fundamental rights that we have lived under very successfully for 200 years, and the genius of it is that it is not terribly specific on certain things. It sets out some things are very specific, but it sets out some general principles, and then leaves it for each generation to apply those to the particular factual situations that come up. [snip]
Well, I think that when a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis, and when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.
Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not, but it is a judgment that has to be based, taking into account all of the factors that are relevant and that are set out in the Supreme Court's cases. [snip]
Just speaking in general, not talking about abortion at all, in general, in deciding any legal issue, I think courts should be receptive to any information that has a bearing on the decisions that they are making. There is no such thing in general as bad knowledge, and I think that is relevant to the decision making process that judges go through. They should be receptive to information that is relevant, that the parties want to bring to their attention, and then decide how it figures in the application of the legal standards that they are applying in the particular case. [snip]
The first is a question of tort law, or maybe it is a question of-well, it is a question of tort law, and decisions are made by State legislatures. Maybe in some instances it comes about through the development of common law through the State courts regarding the scope of State tort law and protection-a tort can be created that applies in the situation of the auto accident you mentioned or a legislature may choose to structure the tort law differently. But that has been a decision that has been left for the State legislatures to decide, and they have taken a variety of approaches in doing that, I believe.
The second, of course, is the issue of Roe and the cases that follow after it, and those are based on an interpretation of the Fifth Amendment and the 14th Amendment of the Constitution, and they are not the result of decisions-of legislative decisions made at the State level or at the Federal level. [snip].
Stare decisis takes different forms. There is what some people call horizontal stare decisis, which means a lower court has to follow the higher court-I am sorry, vertical stare decisis. And then are various forms of horizontal stare decisis, which means a court either must or should follow its own prior precedents. And on the Supreme Court, of course, when we are talking about whether the Supreme Court is going to follow a prior Supreme Court precedent that is horizontal. There, it isn't an absolute requirement to follow a prior precedent-
Senator BIDEN. It is not an absolute-
Judge ALITO. It is not an absolute requirement, but it is the presumption that the Court will follow its prior precedents- [snip].
Different Justices and different judges have different views about stare decisis, but my view is that you need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important. But I have also said it is not an inexorable command. In the area of constitutional law, there has to be the ability to revisit a case like Plessy v. Ferguson. I don't think anybody would want a system of stare decisis that made that impossible. [snip]
Acts of Congress are presumptively constitutional, and I don't think that's just-that saying that is just words. I think that means something. Members of Congress take an oath to support the Constitution, and I think that the presumption of constitutionality means a lot. And I think that judgments that are reached by the legislative branch in the form of findings of fact, for example, are entitled to great respect because of the structure of our Government, the fact that the basic policy decisions are supposed to be made by the legislative branch and carried out by the executive branch, and also for the practical reason or the functional reason that Congress is in a better position to evaluate conditions in our country and conditions in our society and to make findings and to determine what's appropriate to deal with the social and economic problems that we face.
So I would certainly approach the question of determining whether an Act of Congress is constitutional with a heavy presumption in favor of the constitutionality of what Congress has done.
Now, ultimately Marbury v. Madison decided the question that when a case or controversy comes before the Supreme Court and the constitutionality of an Act of Congress is challenged, it is the duty of the Court to decide the question. Unless we were going to back to 1819, then that's the practice that the Federal courts have to follow. But they should always do that with an appreciation of their limited role and the role that the legislature is supposed to play. [/quote]
As did Chief Justice Roberts before him (and Judge Breyer before Roberts) all three nominees correctly noted the limitations of the doctrine. As I will show in the next article in the series, the attacks on Roberts and Alito are baseless. Each man acted in the disputed 8 cases on the basis of sound law on the deference to be paid to prior cases, law as to which they clearly stated their views during these lengthy and contentious confirmation hearings.
Clarice Feldman is an attorney in Washington, DC and a frequent contributor to American Thinker.
 The Congressional Research Service has a web page detailing cases where the Supreme Court overruled precedent. It appears that the Court overruled precedent 21 times during his tenure (not counting this term which is not yet included in the chart). Of those cases Justice Breyer voted to overrule precedent 15 times.
Hubbard v. United States , 514 U.S. 695 (1995).
United States v. Bramblett, 348 U.S. 503 (1955).
Adarand Constructors Inc. v. Pena, 515 U.S. 200 (1995).
Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990);
Fullilove v. Klutznick, 448 U.S. 448 (1990) (in part).
United States v. Gaudin, 515 U.S. 506 (1995).
Sinclair v. United States , 279 U.S. 263 (1929).
Fulton Corp. v. Faulkner, 516 U.S. 325 (1996).
Darnell v. Indiana, 226 U.S. 390 (1912).
Seminole Tribe of Florida v. Florida , 517 U.S. 44 (1996).
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
44 Liquormart Inc. v. Rhode Island , 517 U.S. 484 (1996).
California v. LaRue, 409 U.S. 109 (1972) (in part);
New York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981) (in part);
City of Newport v. Iacobucci, 479 U.S. 92 (1986) (in part).
Agostini v. Felton, 521 U.S. 203 (1997).
Aguilar v. Felton, 473 U.S. 402 (1985);
Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) (in part).
State Oil Co. v. Khan, 522 U.S. 3 (1997).
Albrecht v. Herald Co., 390 U.S. 145 (1968).
Hudson v. United States , 522 U.S. 93 (1997).
United States v. Halper, 490 U.S. 435 (1989).
Hohn v. United States , 524 U.S. 236 (1998).
House v. Mayo, 324 U.S. 42 (1945).
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).
Ward v. Race Horse, 163 U.S. 504 (1896) (in part).
College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999).
Parden v. Terminal Ry., 377 U.S. 184 (1964) (in part).
Mitchell v. Helms, 530 U.S. 793 (2000).
Meek v. Pittinger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977).
United States v. Hatter, 532 U.S. 557 (2001).
Evans v. Gore, 253 U.S. 245 (1920).
Lapides v. Board of Regents, 535 U.S. 613 (2002)
Ford Motor Co. v. Department of Treasury of Indiana , 323 U.S. 459 (1945)
Atkins v. Virginia , 536 U.S. 304 (2002)
Penry v. Lynaugh, 492 U.S. 302 (1989)
Ring v. Arizona , 536 U.S. 584 (2002)
Walton v. Arizona , 497 U.S. 639 (1990)
Lawrence v. Texas , 539 U.S. 558 (2003)
Bowers v. Hardwick, 478 U.S. 186 (1986)
Crawford v. Washington , , 541 U.S. 36 (2004)
Ohio v. Roberts, 448 U.S. 56 (1980)
Roper v. Simmons, , 125 S. Ct. 1183 (2005)
Stanford v. Kentucky , 125 S. Ct. 1183 (2005)
Central Virginia Community College v. Katz, , 126 S. Ct. 990 (2006)
Hoffman v. Connecticut Dep't of Income Maintenance, , 492 U.S. 96 (1989)