Sunstein Examines a Change in Confirmation Hearings

Volley of Complaints; A Change in the Confirmation Game
Cass R. Sunstein
The Washington Post
October 2, 2005

Confirmation hearings for the Supreme Court have long focused on a nominee's view of individual rights, above all the right to privacy. But we are suddenly in the midst of a major shift. The real importance of the Roberts hearings, and a harbinger of things to come, is that the senators focused less on individual rights than on the court's attitude toward Congress and its prerogatives. This was a dramatic change from the emphasis in the senators' questioning of the last six nominees, going all the way back to Robert Bork in 1987. Indeed, for the first time since the 1930s, prominent legislators are concerned about the suddenly tense relationship between the federal judiciary and Congress.

Increasingly, lawmakers from both parties worry that the Supreme Court is restricting their authority -- that "strict construction" of the Constitution might make it more difficult for Congress to protect civil rights, safeguard the environment and prevent crime. At the same time, however, some legislators actually want the court to place further limits on the power of elected officials. These lawmakers want the court to protect property rights, to insist on states' rights, and to invalidate affirmative action programs and gun control legislation. Within the Republican Party itself, an intense debate is brewing on how to evaluate a more conservative court that seems more than willing to limit Congress's powers -- and on whether this assertiveness constitutes the kind of judicial activism that the party has long derided.

The new tensions are best understood in historical terms. In the early years of Franklin Delano Roosevelt's presidency, the Supreme Court took a strong stand against congressional acts, producing a national debate about the government's power to respond to the Great Depression. In the late 1930s, the court capitulated, and it maintained a posture of extreme deference for decades. In the 1960s, under Chief Justice Earl Warren, the court was entirely willing to strike down legislation, but its most controversial decisions were aimed at state governments rather than Congress. In banning prayer in public schools, forbidding racial segregation, protecting privacy and requiring a rule of one person-one vote, the court was rarely invalidating decisions by the national legislature.

The court remained highly deferential to Congress under Warren's successor, Chief Justice Warren Burger. It allowed Congress to impose affirmative action programs. It offered broad interpretations of national power to regulate interstate commerce and to enforce the constitutional amendments enacted after the Civil War, particularly the equal protection clause of the 14th Amendment.

In the last two decades, under Chief Justice William Rehnquist, all this changed. The Rehnquist court struck down parts of more than three dozen acts of Congress, including provisions of the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Violence Against Women Act and the Religious Freedom Restoration Act. All had passed with strong bipartisan support from Congress. Moreover, the question of constitutional authority received serious attention in the legislature itself, which sometimes explored the legal issues in detail before passage.

The independence of the three branches, a cornerstone of the Constitution, forbids Congress from quizzing the justices about their rulings. But judicial independence doesn't prohibit both Republican and Democratic lawmakers from developing a growing resentment about the court's many decisions invalidating their work. It has been 11 years since the last confirmation hearing for a Supreme Court nominee. So when Judge John Roberts appeared before the Senate Judiciary Committee as part of the process that led to his confirmation last week as the country's next chief justice, numerous senators seized the opportunity to express their displeasure.

Emphasizing the court's decision to invalidate part of the Violence Against Women Act, Republican Arlen Specter of Pennsylvania referred to the "overwhelming factual record" that supported the conclusion that sex-related violence affected interstate commerce. Specter, the committee's chairman, complained that the court was treating Congress like "schoolchildren" and added that he and his colleagues "take umbrage at what the court has said."

In an unnoticed, technical, but revealing exchange, Republican Charles E. Grassley of Iowa pressed Roberts to support the constitutionality of the qui tam statutes, which give ordinary citizens the right to go to federal court to recover funds on the government's behalf. Grassley emphasized the historical support for qui tam statutes and expressed concern that the Supreme Court might strike them down.

Many of the panel's Democrats spoke in identical terms. New York's Charles E. Schumer emphasized the need for judges to "respect" Congress. He asked Roberts to agree "that Congress deserves a great deal of deference when it decides something is commercial." Massachusetts's Edward Kennedy pressed Judge Roberts on voting rights -- not to support past judicial decisions protecting such rights, but to confirm that Congress has the authority to protect them. Vermont's Patrick Leahy, the panel's ranking Democrat, explored the need for courts to permit Congress to give ordinary citizens the right of access to federal courts.

Members of the Rehnquist court were not, of course, present to defend themselves against the charges of disrespect and usurpation. And to say the least, a nominee is not in the best position to tell skeptical legislators why the court might sometimes be right to strike down legislation. But in the hearings themselves, there was an equally interesting counterpoint, suggesting that some Republicans, at least, are quite comfortable with a firm judicial hand against Congress.

For example, Alabama's Jeff Sessions, a Republican, strenuously defended the court's efforts to limit Congress's power. He emphasized the risk of "federalizing too many crimes" and explicitly praised the "healthy trends in reestablishing that there's some limit to the reach of the commerce clause." And silence itself can be revealing. The Endangered Species Act has strong bipartisan support, but Republican senators pointedly declined to question Roberts about his controversial suggestion that the act might be unconstitutional as applied to wholly intrastate activity.

For the last decade, the Rehnquist court resisted the effort to strengthen the protection given to private property against government "takings." Elected officials might be expected to approve of this form of judicial restraint, simply because it gives government more room to maneuver. But senators from both parties expressed concern, with Republican Sam Brownback of Kansas and Democrat Herb Kohl of Wisconsin arguing that the court should give greater protection to property rights.

In particular, both senators objected to the court's recent ruling in Kelo v. City of New London, where the majority endorsed the local government's position that an urban redevelopment plan counts as a "public use" under the Fifth Amendment's "takings clause." Because a public use was involved, the locality was permitted to take private property (although it also had to pay full compensation to property owners for their loss of ownership). Kohl said that he was "quite disturbed by this ruling, which appears to place much private property at risk." His view was echoed by Brownback, who commented dryly that "it's much easier now for one man's home to become another man's castle."

In an important exchange with Russell Feingold, another Wisconsin Democrat, Roberts indicated that the Second Amendment might contain an individual right to own guns -- a controversial suggestion that the Supreme Court has never embraced and that would impose new limits on the power of Congress. But many members of Congress are on record as accepting an individual right to own guns. They would welcome a Supreme Court ruling endorsing their position, even if it restricted the power of the national legislature in this area.

The larger lesson is that in the last decade, the debate over the Supreme Court has been radically transformed. For the first time in 70 years, confirmation hearings are focusing on the question of whether the nominee is prepared to defer to the national legislature. And for the first time in the nation's history, the majority party in the U.S. Senate is sharply divided on the right answer to that q