Sen. Brownback's (withdrawn) opposition to Judge Neff
Now that Senator Sam Brownback has withdrawn his opposition to permitting the nomination of Judge Janet Neff from being considered by the Senate, it's worth examining the grounds that were offered for criticizing his action.
First, of course, there is something deeply undemocratic about the Senate system of "holds" that permits a single Senator to block the confirmation of a judge who has the backing of a majority (not to mention a filibuster-proof majority) of the full Senate. It shares many of the flaws of the "three men in a room" system that Adrienne describes below.
Second, the substantive grounds of Brownback's opposition were ridiculous. Brownback wanted to "investigate" the facts surrounding Judge Neff's attendance at a same-sex commitment ceremony for the daughter of a close family friend. Brownback worried that this revealed Neff's possible bias should she be called upon to adjudicate a constitutional challenge to laws forbidding same-sex marriage.
And third, Brownback was harshly criticized for his proposed compromise in which he would permit Neff to be confirmed, but only if she promised to recuse herself in same-sex marriage cases. Such a commitment in advance would arguably violate separation of powers.
Although I certainly don't share Brownback's substantive commitments on this issue, I wonder whether the procedural criticism has been fair. Suppose an otherwise qualified judicial nominee had attended a ceremony that we liberals find offensive: Perhaps a judge attended a family friend's graduation ceremony in the Ku Klux Klan. (Humor me in assuming the Klan holds graduation ceremonies.) Even though attending in a "personal" capacity, wouldn't this act send a sufficiently alarming message about the nominee's views on civil rights to warrant further investigation before confirming him to a seat on the federal bench? And wouldn't a pledge that the nominee would recuse himself in civil rights cases be better than a simple confirmation without such a pledge?
First, of course, there is something deeply undemocratic about the Senate system of "holds" that permits a single Senator to block the confirmation of a judge who has the backing of a majority (not to mention a filibuster-proof majority) of the full Senate. It shares many of the flaws of the "three men in a room" system that Adrienne describes below.
Second, the substantive grounds of Brownback's opposition were ridiculous. Brownback wanted to "investigate" the facts surrounding Judge Neff's attendance at a same-sex commitment ceremony for the daughter of a close family friend. Brownback worried that this revealed Neff's possible bias should she be called upon to adjudicate a constitutional challenge to laws forbidding same-sex marriage.
And third, Brownback was harshly criticized for his proposed compromise in which he would permit Neff to be confirmed, but only if she promised to recuse herself in same-sex marriage cases. Such a commitment in advance would arguably violate separation of powers.
Although I certainly don't share Brownback's substantive commitments on this issue, I wonder whether the procedural criticism has been fair. Suppose an otherwise qualified judicial nominee had attended a ceremony that we liberals find offensive: Perhaps a judge attended a family friend's graduation ceremony in the Ku Klux Klan. (Humor me in assuming the Klan holds graduation ceremonies.) Even though attending in a "personal" capacity, wouldn't this act send a sufficiently alarming message about the nominee's views on civil rights to warrant further investigation before confirming him to a seat on the federal bench? And wouldn't a pledge that the nominee would recuse himself in civil rights cases be better than a simple confirmation without such a pledge?
posted by Michael C. Dorf @ 8:40 AM
6 Comments:
At 9:50 AM,
Luis Villa said…
In theory, wouldn't the confirmation process be that 'further investigation'?
At 10:26 AM,
Adrienne B. Koch said…
The issue Michael raises reminds me a bit of the comparisons that some people have made between the reasoning of Roe v. Wade and other cases that we liberals support (on the one hand) and the reasoning of other cases we do not much care for, such as Lochner and its progeny (on the other). I'm not sure I agree with the "Roe/Lochner" argument, but it does raise an interesting issue about how we can view certain exercises of power as abusive or not depending upon who is exercising the power. The difficulty is that we (and I say "we" because of course I mean me, too) cannot figure out a way to say that something should happen because it is "right" or "just", without getting nervous that tomorrow someone else will use the same arguments to support something we really don't like. So instead we talk about these things in terms of process. This, by the way, is probably also the reason why we often find ourselves arguing in favor of gay rights, reproductive choice, and other hot-button issues on safe, neutral grounds like "equality" or "privacy," rather than saying what I hope we really mean -- that many of us DO view these things as moral issues, and hold the positions we hold not because of our views about "process" (or even "equality") but because we actually believe in them on moral grounds.
At 12:33 PM,
Anonymous said…
Adrienne raises an interesting issue about using process as a mask for substantive morality. I would argue, however, that in the case of morality, something the process is the substance.
Take abortion as an example. I would be perfectly happy to see almost every abortion in America outlawed, on purely moral grounds. You, I assume, prefer the opposite. Given that our morals on the issue are diametrically opposed, and that we still have to live in the same country and fund the same government without physically attacking one another, the only fair way to decide the issue is through the process. That is the reason many conservative argue that certain issues should be left to the states -- it ensures a fair process based on the will of the people. The South Dakota abortion ban is an excellent example. Unhappy as I am with the result of the vote to strike down the ban, it was a vote, and it represents the will of the people, and I cannot argue that it was anything but fair, so I accept it, respecting the process as bridging the divide between the morals.
At 12:34 PM,
Anonymous said…
Also, I was going to say exactly what Luis said, but he said it first.
At 12:58 PM,
Anonymous said…
To reply to something hinted at in the previous comments, I would note that the sort of Rawlsian Political Liberalsim "modus vivendi" (Rawls hismself would not have described it as such)approach whereby we resort to "process" to bridge incommensurate or intractable substantive divides is, at its deepest levels doomed. That is, by agreeing on the parameters of discourse and by excising certain modes of "substantive" argument from the rules of the game, we avoid the defenestrations of prague; this is a hugely important and laudable aspect of our society. Yet, at the end, it is simply a compromise driven by the understanding that speaking in purely "substantive" terms and resorting to unverifiable and deeply contested metaphysical positions (or positions which ultimately rest on the same) is often a gateway to deeper divides and heightened conflict. But if one truly believed that abortions are, without exception, moral abominations (particularly if that beliefe arose from a view of the Soul and the very real consequences in an afterlife for fetal souls) then it seems a real act of moral resignation or cowardice to simply commit to the "process" of neutral debate. Presumably, we would be quite uncomfortable with a similar notion of "process" and neutral debate were groups within or society or others having a similar debate about the justifiability of chattel slavery. While Lincoln may have been willing to keep slavery to save the "Union," most today would think, to borrow and distort from Milligan, that this would not be a Union worth saving. That is to say, as in all things in life, the resort to "neutral principles" breaks down at the extremes. Maybe this is not an interesting point. But when considered in this context or in the context of Professor Colb's thoughts on circles that draw others out, one thing I think worth considering is the way in which resort to "neutral principles" desiccates the core beliefs of many. In a sense, we liberal secular humanists do subtle violence to views of others while losing far less ourselves. In so doing, we should be more aware of the frank and limited compromise we are offering: No defenstration; we should not be so dishonest as to offer a false and falsely neutral panacea.
At 2:01 PM,
Anonymous said…
Adam S. said: "...then it seems a real act of moral resignation or cowardice to simply commit to the 'process' of neutral debate."
A very interesting point, and perhaps something I should have clarified a bit. First, allowing the "process" of neutral debate does, in fact, allow for debate -- something that the Supreme Court has effectively taken off the table with Roe. Or rather, we can debate it, but it's nothing but sound and fury, because until I'm nominated to the Supreme Court (fingers crossed), my views cannot possibly have any real-world impact. Nor can yours. That's the real source of my frustration with Roe: the fact that five of nine can condescendingly tell millions of Americans "this issue is far too difficult for you, so we'll take care of it, and you can go back to watching television." I bristle at that kind of tyranny far more than the actual fact of abortion.
Second, the only act of moral cowardice, in my view, is in taking debate off the table entirely.
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