Convictions: Slate's blog on legal issues

Fondly Remembering Tim Russert—Death of a Partisan

On that Sunday, it was my task to defend the proposition that it was improper to deny John Roberts' nomination to the court on the basis of his Catholic faith. Prominent scholars and senators had argued that Roberts was unsuitable for the bench given his Catholicism and the church's well-known opposition to abortion. This line of questioning was contrary to the prohibition of religious-test oaths and the spirit of the free exercise clause, I argued. Moreover, I contended, Catholic teaching treated those who stand for judicial post differently from legislators and the executive.  Gov. Cuomo insisted that the questioning was both proper and that the church made no such distinction, with highly conservative prelates even insisting that Catholic public figures be denied communion if they didn't toe the church line.

Several things were immediately apparent: Tim likely knew as much or more about the topic than either of his guests, and he was not about to let either of us dodge the more difficult nuances of the question. Indeed, somewhat ironically now, in light of my own recent denial of communion for endorsing Sen. Obama, Tim would ask us about such threatened refusals of the sacrament. The colloquy went like this:

MR. RUSSERT: Professor, many Catholic politicians are faced with the following prospect, that individual bishops in different dioceses can refuse them Communion if they are seen as proponents of abortion. If, in fact, as you said, the Supreme Court in effect formulated the law in Roe vs. Wade, if a Catholic justice of the Court doesn't take assertive steps to undo that law, could they be denied Communion in respective dioceses and is that an appropriate pressure from the Catholic Church?

PROF. KMIEC:  ... Cardinal McCarrick here in Washington said it the best. This is a question of pastoral counseling. It's not something that really should be dealt with at the Communion rail. ... The sacraments shouldn't be used as a weapon. ... But again, the Supreme Court of the United States really needs to [re-] examine [abortion] as a matter of law ... not as a matter of Catholic faith ... not as a matter of any other personal philosophy. It's a question of whether abortion ... can be found in the text and history and structure of the Constitution.

At that point, I decided to interject a bit of Kmiec interpretive theory on the Constitution that is not presently shared by the court itself: namely that constitutional text ought to be interpreted in light of the declared "self-evident truth" of the Declaration of Independence that we are "created equal" with an "unalienable right to life."

"There's no conflict between John Roberts' faith and this constitutional system," I argued, "because this constitutional system is premised upon the dignity of the human person." As a matter of his own Catholic faith, I speculated that Tim would let my advocacy pass without rebuttal. Silly me. Of course, Tim would not personally inject his Catholic view. Rather, in fidelity to the high standards of journalism that by disciplined mind and hard work became part of Tim when he left politics, he adroitly questioned the governor, illustrating that the way Catholic jurists like Justice Scalia avoid an irreconcilable conflict between faith and law is not with my fancy professorial theory but simply by sticking to the text of the Constitution, which says nothing about the subject.

Cuomo affirmed the Scalia position, and in one masterful move, Tim brought the conversation back to its original focus, illustrating in a unique way some common ground. Whether Cuomo realized it or not, his affirmation of Scalia underscored my original contention that if judges follow their intended role, they have no moral complicity in the laws they interpret. But it also allowed Cuomo an opening to reaffirm his longstanding view that Catholics cannot just impose their doctrine on their non-Catholic American neighbors—at least without extended and respectful argument in the democratic process (or, I might add, persuading jurists that the Constitution has an intended and inescapable natural law foundation).

One thing I know for sure, St. Peter is in no position to give Tim a hard time at the gate. If there is any delay whatsoever, look for Tim to sit the onetime fishermen and early church organizer down at the table and with that smiling but tenaciously prepared look ask, as heavenly PowerPoint goes up on the screen of judgment: "Isn't it true, Peter, that earlier on the night before he died, you denied him three times, and yet here you are today the keeper of the gate of the kingdom. How do you explain that?" Like so many other guests on Meet the Press when confronted with the thoroughness of Tim's preparations revealing an undeniable inconsistency of their own words, I suspect Peter might be tempted to bob and weave his way to some sort of answer. Advice to the first pontiff: Don't try it. Just wave Tim on through—he more than deserves it.

Just What Is a Lawyer's Lawyer?

Diane, Adam, I wonder if the difference between you is more about the meaning of the term "lawyer's lawyer" than about Chief Justice Roberts.

As I have heard the term used, a "lawyer's lawyer" is a lawyer whom the top members of the bar see as a top member of the bar. If that's the definition, then I agree with Adam about John Roberts. Roberts was not only a lawyer's lawyer, he probably was the lawyer's lawyer of the Supreme Court bar of his generation. I clerked for Justice Kennedy in OT2003, and Roberts was already a legend as an advocate. People used to say that Waxman and Clement were good, but too bad you missed John Roberts (who by then was already on the D.C. Circuit). According to rumors circulating among the Supreme Court bar, the justices of the Rehnquist Court generally saw him as the finest advocate of his generation. 

My sense is that Diane's definition is different. Diane, please correct me if I'm wrong, but my sense is that you see a "lawyer's lawyer" as more of a skilled legal technician who lacks a clear ideological agenda. Under that view, as I understand it, a lawyer's lawyer is someone who is interested in the law as law and is not on any particular ideological "team"—and, perhaps implicitly, would follow that law faithfully without bias if confirmed as a judge. I tend to agree with you that this lack of an agenda is part of the term "judge's judge," but I don't see as implicit in the term "lawyer's lawyer."

I don't know if either definition is necessarily correct or more common. But I wonder if the disagreement between Adam and Diane is mostly about finding the right definition of the term. Also, perhaps it's worth noting that both Roberts and Stevens pass the "lawyer's lawyer" test with flying colors under the first standard, but that there would be sharp ideological divisions today about both Roberts and Stevens under the second one.

Heller's opportunity to put Law over Politics

 Stopping the Justices from voting before they know the answer –

Douglas W. Kmiec

Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court.  That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.

When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome.  With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court.  In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote.  Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law.  By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity.  Those witnessing this morning's oral argument know that task will be difficult.  The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison's expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer.  If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion.  Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment.  No one would buy a common appliance not knowing if it could be constructed to perform its intended task.  Why ask Justices to accept opinions that have yet to be fully formed?

Who would write the opinion if a preliminary vote were not taken first for purposes of assignment?  Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work.   Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern.  Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.

Guns and Roberts

Dahlia and Akhil Amar just posted great pieces in Slate about D.C. v. Heller, the guns case to be argued on Tuesday at the Supreme Court. As lots of commentators have already said, this case is irresistible because the court will be writing on a practically blank slate: The relevant precedent is from 1939, and it didn't definitively hold that there's no individual right to bear arms in the Second Amendment, though the court certainly waved in that direction. As Dahlia points out, by staying out of the gun control fray, the court has been practicing a form of judicial restraint for the past 69 years. The big question now is whether it will stick to that path by issuing a decision that recognizes an individual right to bear arms but allows for a lot of gun control regulation, as Solicitor General Paul Clement is urging, or whether it will burn down a whole lot of gun laws in the wake of resurrecting the Second Amendment, as the brief that Vice President Cheney signed, and that David flags for us, would have it. (The court could also cling to the old interpretation of the Second Amendment as speaking only to having a gun for the purpose of serving in a state-run militia, but in light of the recent revisionist scholarship on the subject, I doubt it.) In any case, since this moment is a huge test for judicial restraint and modesty, isn't it also a huge test for Chief Justice John Roberts? Modesty was his mantra during his confirmation hearings. I've argued that he didn't deliver on that promise last term. Is Heller likely to be the big fat data point on this question from 2007-2008? I'm especially intrigued by the question since there's ostensibly a way to duck the looming constitutional question altogether, by treating D.C. as its own oddball scenario since it's not a state. Anyone think that's a likely resolution, or want to weigh in on the Clement v. Cheney face-off?