(For those of you joining the thread, I made a statement earlier that we might as well discuss ideology and, if Congress doesn't like a judges ideology in a decision, it should impeach him. Prof. Lowenstein asks about the rule of law implications)
I responded to your question in a private post to someone else earlier. I suppose I should make it clear I'm not really in favor of the impeachment method of getting judges back in line. However, I do think the current judicial confirmation battles are bad and getting worse. Congressional egos seem to foster the tit for tat mentality that will lead Republicans to do to Democratic nominees what the Democrats are doing to them(which hopefully will finally destroy the filibuster for judicial nominations).
In any event, I don't think impeachment will get very far and, in advancing multiple impeachments against multiple judges solely for ideological reasons, I think Congress will embarass itself enough to end the insanity. But, until we return to an era where we don't consider ideology in confirmation hearings (something that will never happen)or the Congress finally falls off the cliff of absurdity, we are going to be stuck in a pitiful situation where well qualified people will refuse to be nominated and risk tarring and feathering on the steps of the Capitol.
In the end, I think the rule of law will come out ahead. It'll just have to wash the mud off.
Thanks,
Erick-Woods Erickson
ee@sell-melton.com
=========================
Sell & Melton, L.L.P.
Attorneys At Law
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-----Original Message-----
From: Lowenstein, Daniel [mailto:lowenstein@law.ucla.edu]
Sent: Monday, September 22, 2003 8:07 PM
To: Election-law Listserver (election-law@majordomo.lls.edu)
Subject: FW: Judicial Ideology and Recall Litigation - Where's the
Connection?
And what happens to the idea of the rule of law?
ΚΚΚΚΚΚΚΚΚΚΚ Best,
ΚΚΚΚΚΚΚΚΚΚΚ Daniel Lowenstein
ΚΚΚΚΚΚΚΚΚΚΚ UCLA Law School
ΚΚΚΚΚΚΚΚΚΚΚ 405 Hilgard
ΚΚΚΚΚΚΚΚΚΚΚ Los Angeles, California 90095-1476
ΚΚΚΚΚΚΚΚΚΚΚ 310-825-5148
-----Original Message-----
From: Erick-Woods Erickson [mailto:ee@SELL-MELTON.com]
Sent: Monday, September 22, 2003 2:13 PM
To: election-law@majordomo.lls.edu
Subject: RE: Judicial Ideology and Recall Litigation - Where's the
Connection?
I think ideology might as well be discussed. We all know, whether we admit
it or not, that ideology is considered in both the nomination and the
consideration. What the Senate should not do is filibuster nominees.
The Senate should vote for or against the individual and, if the individual
decides issues contrary to what a majority of the Congress likes, they
should impeach the judge. It's simplistic, but it is also, in my opinion,
how the system was designed.
Erick Erickson
Sell & Melton, LLP
Macon, Georgia
-----Original Message-----
From: Scott J. Rafferty [mailto:rafferty@alumni.princeton.edu]
Sent: Mon 9/22/2003 3:22 PM
To: 'Rick Hasen'; election-law@majordomo.lls.edu
Cc:
Subject: Judicial Ideology and Recall Litigation - Where's the
Connection?
Rick Hasen wrote:
The recall, Bush v. Gore, and Miguel Estrada What do these three topics have
in common? The connection between the first to is obvious to readers of this
blog, but what about the third? Miguel Estrada, of course, is a Washington
lawyer who recently withdrew his nomination for a judgeship on the United
States Court of Appeals for the D.C. Circuit. He did so in the face of a
relentless filibuster by Democrats. Some of those who opposed the filibuster
said that it was unfair, and among those who said that, some argued that the
ideology of the judge should be irrelevant to the decision whether or not to
confirm the judge---the only question should be one of judicial competence,
at least on the Court of Appeals. The recall litigation in the Ninth Circuit
should end any serious discussion of the irrelevance of ideology to the
confirmation process. How is it that most knowlelgeable observers were able
to handicap the chances that the three judge panel would reverse the
district court in the punch card recall suit? How is it that knowledgeable
observers now predict that the three judge court decision will be
overturned? Those knowledgeable observers know the ideological leanings of
the appellate judges and therefore can extrapolate about how sympathetic
these judges are likely to be to the equal protection claims of voters using
punch cards, compared to state interests in a speedy recall election. Of
course ideology matters, and of course it should be relevant in confirmation
decisions of intermediate appellate court judges. I'm confused about what
you are saying here, Rick. Your conclusion that "of course ideology
matters" suggests that the current debate about the proper standards for
judicial nominations and confirmation is somehow trivial. You also seem to
be impugning the objectivity and/or fairness of the Ninth Circuit en banc
panel before the fact. I am not sure that either conclusion is well
supported. Although I favor the panel's decision, it does raise some
significant issues that any reviewing judge - "ideological" or not - would
have to confront. Perhaps it would be prudent to wait until the opinion, or
at least the argument, before concluding that the decision process was
driven by "ideology" rather that "competent" adjudication. Certainly, the
mere fact that newspapers, which may or may not be "knowledgeable," are
predicting an outcome is not sufficient to brand any or all of the judges on
the en banc panel as "ideologues." A further problem with your logic is the
assumption that the decision
*only* involves weighing equal protection claims against a purported state
interest in a speedy recall. There are significant procedural issues about
the role of a federal court in issuing injunctions, as well as the standard
of review used by the panel, that are completely
*neutral* as to ideology. It is entirely possible that one or more of the
judges will decide the case on principled grounds that will contravene not
only his personal political inclinations, but also his substantive views on
the equal protection clause. The questions at argument - and the opinion -
may shed light on whether these particular judges articulate and act upon
principle or whether they are slaves to "ideologies." In the case of Miguel
Estrada, there was overwhelming evidence that he allowed his political
ideology to dictate both his treatment of parties
and the decisions he issued. His nomination was a threat both to the
ideological "balance" of the judiciary and the public's perception that the
judiciary is capable of enforcing the law according to a coherent judicial
framework that respects legislative and constitutional processes. The
debate over the proper standards for confirmation is complex, particularly
when presidents from one party nominate significant numbers of partisans
over an extended period of time and Senators perceive a cumulative
imbalance. It would certainly be tragic if every Senator voted on every
judicial nominated based on his or her presumed ideology, constrained only
by the political realities of the confirmation process. However, where
individual nominees manifest ideologies that interfere with judicial
objectivity, or where the overall make-up of the judiciary is out-of-step
with Congress (as it was during the New Deal), the ideology of judicial
nominees will be a "relevant" factor in the confirmation process. I don't
think the outcome of the ACLU case will provide any great epiphanies in this
long-standing debate.