What if Supreme Court Justices Had to Run on Their Records?

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>Various analysts have dissented from my May 14 post, "Why Kagan Should Stonewall the Senate." There I argued that Elena Kagan should follow the almost unbroken tradition of judicial nominees refusing to disclose their views on issues likely to come before their courts.


So here I detail some of the logic underlying my major premise: a predictive judgment that complete candor about all big issues would likely doom any Supreme Court nominee, no matter what his or her views might be.

If I'm right about this, it should clinch the case for stonewalling on specific issues even apart from my other, more normative premise: that full disclosure would lead nominees down the road toward essentially promising to decide the big issues in specified ways in a (probably vain) effort to eke out a Senate majority.

To think through how the tell-all approach would play out, let's consider whether any of the nine current justices - other than Sonia Sotomayor, who has not yet cast votes on many big issues -- could win re-confirmation by the Senate now that their views are known.

Such a hypothetical reconfirmation proceeding would approximate the difficulty of confirming a nominee who makes all of her views known.

Take Justice Stephen Breyer, who might well be the easiest of the eight veteran justices to confirm.

Why the easiest? First, because as a fairly liberal Clinton appointee, Breyer would fare better among Senate Democrats than any of the five more conservative justices. Second, because with a record more moderate than those of the quite liberal Justices John Paul Stevens and Ruth Bader Ginsburg, Breyer would probably have a better chance with Senate Republicans.

Even so, I doubt that Breyer could win over any of the 41 Senate Republicans after weeks of TV attack ads and confirmation-hearing cross-examinations focusing on his most unpopular votes, plus those most offensive to key interest groups such as the gun lobby -- or, even, animal-rights groups, who are usually inactive during confirmation battles but are in a rage over a recent decision.

I also doubt that Breyer could win a large enough supermajority of Senate Democrats to break a filibuster or even, perhaps, to win an up-or-down vote.

The attack ads could say things like this, quite accurately albeit one-sidedly:

* Breyer voted in 2007 to strike down the federal law against a horrifyingly grisly late-term method called "partial-birth" abortion.

That law passed Congress in 2003 by lopsided votes, including those of 17 Senate Democrats, with polls showing about a 2-1 margin of public support.

* Breyer voted in 2008 to make a virtual nullity of the Second Amendment right to "keep and bear arms," and to uphold a District of Columbia law making it illegal to keep a loaded gun at home for self-defense against murderous intruders.

Polls show that about 70 percent of Americans -- and more in many states -- support an individual right to keep and bear arms. How would the many Democratic senators who live in fear of the gun lobby feel about voting to put a known nullifier of the Second Amendment on the Supreme Court?

* Breyer voted in 2003 to uphold a system of racial quotas for blacks and Hispanics at the University of Michigan's undergraduate school that in effect reduced the grades of every white and Asian applicant by a full point -- treating white students' A's as if they were B's, B's as if they were C's, and so on -- in deciding whom to admit.

That would play very badly with the overwhelming majority of Americans who have consistently opposed even much less extreme racial preferences.

* Breyer cast the deciding vote in the 2006 Hamdan decision to interpret the Geneva Conventions in a way that would make it a federal crime for U.S. interrogators to subject captured terrorists -- even clearly guilty mass murderers -- to any "humiliating and degrading treatment" in an effort to find out where a ticking time bomb might be hidden.

This is not a popular position with the American public, which -- polls show -- would support not merely "humiliating or degrading treatment" but even outright torture to extract life-saving information from captured terrorists.

* Breyer also cast the deciding vote in 2008 to require full judicial hearings, for the first time in history, for foreign terrorists captured and held overseas by the military, at least if they are imprisoned at the Guantanamo Bay military base in Cuba.

According to an ABC News/Washington Post poll, respondents disapproved by 61 percent to 34 percent.

* Breyer cast the deciding vote in 2005 to remove framed copies of the Ten Commandments from county courthouse walls. He and the other liberals also used strained reasoning in 2004 to duck deciding whether -- as the language of the Ten-Commandments and other Breyer-supported precedents seemed to suggest -- the words "under God" render the Pledge of Allegiance unconstitutional.

The Ten Commandments decision was unpopular and the Senate had voted unanimously to denounce the lower court decision in the Pledge case.

* Breyer voted this year for a hugely unpopular decision striking down a federal law designed to protect animals from abuse by banning depictions of dogfighting, of "crush" videos in which small animals are tortured to death by women in high-heels, and the like. (To be sure, the vote was 8-1. But the attack ads would not mention that.)

* Breyer voted in 2007 to uphold a Seattle school board integration program that imposed serious hardships on individual children -- such as being barred on account of race from the closest and best schools and assigned (in at least one case) to a school reachable only by a four-hour daily round-trip on three city buses -- without doing any child much good.

* Breyer cast the deciding vote for the hugely unpopular 2005 decision in Kelo v. New London to uphold the town's use of its eminent domain power to seize and raze the homes of people in a middle-class neighborhood and give the land to a wealthy private developer whose promised benefits for the city never materialized.

A nominee with a record -- or a fully disclosed set of positions -- like this would probably get my vote, because I support some unpopular Supreme Court decisions and am reconciled to the fact that I will disagree strongly with any possible nominee about many things.

But could such a nominee win enough Senate votes to get confirmed?

Don't bet on it. As I noted in my May 14 post, every candid answer would infuriate some of the swarm of interest groups that focus on every imaginable issue. Dozens of candid answers put together would create a powerful coalition -- including all Republicans and more than a few Democrats -- against confirmation.
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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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