What's at Stake: A Look at Mitt's Judicial Record
I suspect many of you agree with me that President Obama has been a disaster for the judiciary, filling up the federal bench with living-Constitution radicals drunk with power and phony "empathy" for the little guy whose rights they are determined to stamp out (see here, here, and here).
And yet, many of you ask: will Mitt be any better? Didn't he appoint liberals to the bench as governor of Massachusetts? One sees this charge leveled on multiple blogs.
Based on my initial research, I think the charge against Romney is unfair. First, a little context. In Massachusetts, all judicial appointments must be approved by the Governor's Council, an elected body not under the Governor’s control. During Romney’s term, Democrats held eight of nine seats on the Council. In that light, it was a victory that about one-fourth of Romney’s appointments were Republican.
Romney never had an opportunity to appoint a state Supreme Court justice, which is virtually the only state court position where political ideology is the decisive factor. Rather, Romney was appointing lower court judges – magistrates and trial court judges. At that level, it doesn’t really matter what the judge thinks about Guantanamo Bay, gay marriage, or the unitary executive. What matters is competence and being tough on crime. Those are exactly the criteria that Romney used. Even the Boston Globe concedes: “Romney was known for seeking prosecutors and other attorneys considered pro “law and order,” and was usually successful in sitting them on the bench.”
Romney reformed the judicial selection process through the creation of a Judicial Nomination Commission, and appointed Christopher Moore – a member of the Federalist Society – to chair the commission. The Federalist Society, as you may know, is the premier conservative legal organization in the U.S., promoting originalism and fighting against liberal judicial activism.
Romney has repeatedly blasted the Massachusetts Supreme Court decision that created – by judicial fiat – a right to gay marriage in the Commonwealth. Judge Robert Bork has backed Romney since 2008, when he said, “No other candidate will do more to advance the conservative judicial movement than Governor Mitt Romney … Governor Romney is committed to nominating judges who take their oath of office seriously and respect the rule of law in our nation.”
None of this guarantees that Romney will appoint conservative judges. There are no guarantees in this realm. Remember: Ronald Reagan appointees Sandra Day O’Connor and Anthony Kennedy often disappointed, and John Roberts has rendered an awful decision on Obamacare (but many great opinions in other cases). The one thing that we can say with absolute, 100 percent certainty is that Mitt’s judicial picks will be head-and-shoulders above Obama’s – and that makes all the difference in a system where the Constitution “means” whatever the judiciary says it means.
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Comments:
May '11
Re: What's at Stake: A Look at Mitt's Judicial Record
Adam, We often hear that there may (will) be two SCOTUS vacancies in the next presidential term. One may or should be Ginsberg the other may be Scalia. Others? Who is in the wings that could that could be a "Scalia like" replacement for any vacancies that open? In other words, who is on the bench to go into the game on The Bench?
Re: What's at Stake: A Look at Mitt's Judicial Record
Pilli, in addition to the two you mentioned, Kennedy will hit his 80th birthday during the next 4 years, and Breyer isn't too far behind. Who's on the bench? My top pick is Brett Kavanaugh of the DC Circuit, but a close second is Paul Clement, the former Solicitor General who put in absolutely stunning back-to-back performances when arguing the ObamaCare and Arizona cases.
Nov '11
Re: What's at Stake: A Look at Mitt's Judicial Record
Judicial appointments don't matter all that much in the long run. (Did I really just say that?) Yes, Romney's appointments, measured individually, will be better than Obama's, but taken as a whole, Romney's appointments still won't be good enough to sway the balance in the judiciary.
They won't be good enough to sway the balance because, ultimately, judicial questions are not decided by a single judge, but by groups of judges, at the appellate level and then in the Supreme Court. It's a structural problem. And the structural problem is, the federal judiciary, as a whole institution, will always be inclined eventually to bless expansions of federal power, especially when federal power comes into conflict with individual state power. The obvious reason the federal judiciary blesses expansion of federal legislative and executive power is that the federal judiciary is part of the federal government (duh!), and in expanding the other branches' power therewith enhances its own power. As the weakest branch, the judiciary will always eventually capitulate to the other branches when those other branches attempt to expand their power.
What's the solution? Read my next comment.
Nov '11
Re: What's at Stake: A Look at Mitt's Judicial Record
As John Roberts has recently amply demonstrated, and as David Souter, Sandra Day, et al have amply demonstrated in the past, the solution to this structural institutional problem is not some particular number of better judges, because you will never have enough of them with the backbone to resist the other two branches.
But, ah, there's the solution!
If the judiciary as whole lacks the will to resist the will of the other two branches, then the solution is to somehow find a way to instill the right will into those other two branches. If the judiciary is too strong, it is only because the other branches allow it to become so.
What's needed is a president and a congress that will restrain the judiciary (as Hamilton suggested in Federalist 80) by stripping it naked for a while if that's what it takes:
Is Romney the man to undertake such work? Unfortunately, I don't think so. He's too timid.
Edited on August 9, 2012 at 6:33amApr '11
Re: What's at Stake: A Look at Mitt's Judicial Record
Astonishing:
What's needed is a president and a congress that will restrain the judiciary (as Hamilton suggested in Federalist 80) by stripping it naked for a while if that's what it takes:
Is Romney the man to undertake such work? Unfortunately, I don't think so. He's too timid. · 2 minutes ago
Edited 0 minutes ago
I agree with you that Romney is unlikely to shake up the Constitutional balance much, although I think that this is more because he believes in the rule of law than because he lacks the courage to attack it. I disagree that this means that there wouldn't be a radical impact from the judicial appointments. There's an amazing amount of case law that turns on 5-4 decisions, from regulatory takings to the Second Amendment to the limits on interstate commerce to campaign finance. There's also a lot of 5-4 decisions the other way; capital punishment and affirmative action stand out.
Nov '11
Re: What's at Stake: A Look at Mitt's Judicial Record
James Of England
Astonishing:
What's needed is a president and a congress that will restrain the judiciary . . . by stripping it naked . . . if that's what it takes . . . .
Is Romney the man to undertake such work? Unfortunately, I don't think so. He's too timid.
. . . Romney is unlikely to shake up the Constitutional balance . . . . this is more because he believes in the rule of law than because he lacks the courage to attack it. . . . an amazing amount of case law . . . turns on 5-4 decisions . . . .
Constitutional balance?!?!
What presently exists is Constitutional imbalance.
Our present disequilibrium, which Freedman accurately describes as "a system where the Constitution 'means' whatever the judiciary says it means" is not the rule of law, but the rule of men, specifically, the rule of unrestrained lawyers' opinions disguised as law by veiling underneath black robes.
Romney's unwillingness to shake up that system does not indicate courageous respect for the rule of law, but timid deference to judicial fiat.
Many decisions do go 5/4, but the overall trend expands federal power. And then just when you think you've gotten that elusive 5th vote to reverse the trend . . . along comes another John Roberts.
Edited on August 9, 2012 at 8:54amRe: What's at Stake: A Look at Mitt's Judicial Record
Astonishing: I totally agree that the activist nature of the judiciary is contrary to the rule of law. But I also agree with James: even if Romney can't transform the federal judiciary, he can make a huge difference. If Obama is re-elected and gets to appoint a couple of new SCOTUS justices, you can bet that the First and Second Amendments will "evolve" in ways that do violence to the Constitution. And as for dreams of revisiting decisions like Kelo and Roe, with Romney, we can at least push for it.
Apr '11
Re: What's at Stake: A Look at Mitt's Judicial Record
Astonishing
Constitutional balance?!?!
What presently exists is Constitutionalimbalance.
Our present disequilibrium, which Freedman accurately describes as "a system where the Constitution 'means' whatever the judiciary says it means" isnotthe rule of law, but the rule of men, specifically, the rule of unrestrained lawyers' opinions disguised as law by veiling underneath black robes.
Romney's unwillingness to shake upthatsystem doesnot indicate courageous respect for the rule of law, but timid deference to judicial fiat.
Many decisions do go 5/4, but the overall trend expands federal power. And then just when you think you've gotten that elusive 5th vote to reverse the trend . . . along comes another John Roberts. ·
I don't think that this has been the case for the last couple of decades. We've seen the feds limited in their use of the Commerce Clause (Lopez, Morrison, Obamacare), in their ability to punish (a million terrible 8th Amendment cases), to take our guns, to take our property, and to limit our speech and association. The judicial advances of federal power have been few in number.