[ Welcome author, Christopher Eisgruber, and host, Rebecca Brown - bev]
[About the host: Rebecca Brown is the Newton Professor of Constitutional Law at the University of Southern California Gould School of Law. She earned her law degree, magna cum laude, from Georgetown, and was a law clerk to Associate Justice Thurgood Marshall.]
“Americans need a better way to talk about Supreme Court appointments, and they need it now …. The stakes are high.” So warns Christopher L. Eisgruber, Provost and Laurence S. Rockefeller Professor of Public Affairs at Princeton University, in his bold book, “The Next Justice”. Eisgruber brings his career as a constitutional theory scholar to bear on the important process by which the American people settle on appointments to their highest court.
“Several long-standing constitutional doctrines are now in a precarious position, protected (if at all) by the slender margin of one vote,” he writes. Some of these doctrines include the constitutional protection for abortion and gay rights, public sponsorship of religious programs, the legality of voluntary affirmative action efforts, the authority of Congress and the states to protect the environment, and the power of Congress to protect civil rights through legislation like the Voting Rights Act and the Civil Rights Act of 1964.
Some people think that the appointments process is broken because the Senate has ‘politicized’ the confirmation process. But Eisgruber argues that it is just the opposite. The founders put the confirmation power in the Senate, which is a political body, for a reason. Senators have the constitutional responsibility to ensure that nominees to the Supreme Court will interpret the Constitution in ways consistent with the nation’s best interests and values. The Senate has acquiesced in the claim that judicial ideology is out of bounds as a topic of inquiry in the confirmation process. Yet it is the heart of the matter. This book shows why it is critical that we as a nation recognize and accept that the justices have no choice but to interpret and apply the law when its meaning is unclear and controversial. In order to interpret and apply the law of the Constitution, which speaks in abstract phrases, judgments will have to be made. They can be made only on the basis of a justice’s judicial philosophy. That judicial philosophy—the kinds of claims of justice that a judge finds compelling–is what will define how that person will do her job on the Supreme Court.
For example, what kinds of inequality are tolerable in a free society? The Constitution demands “equal protection of the laws.” But do gay couples who wish to have equal access to the institution of marriage have the right to demand that kind of equality? Do women who wish to attend a traditionally all-male military academy have the right to demand that kind of equality? Or, what kinds of procedural rights should accused terrorists be provided? The Constitution requires “due process.” These are the fundamental controversies with which our country wrestles, and the Constitution speaks to them only in abstract terms. By the time a question reaches the Supreme Court, there is a high probability that several judges along the way have reached different views about what the Constitution requires.
So it is imperative, argues Eisgruber, that the persons to whom we entrust that important final decision have a meaningful “job interview” when they come up for confirmation before the Senate. We have a right to know how the guardians of our individual rights and public duties will carry out their responsibility. That discovery has been severely undermined by the recent efforts to mask the importance of judicial philosophy to a candidate’s qualification. The metaphor of a judge as “umpire,” for example, has been entirely unsatisfactory. It overlooks the critical role of the judge in defining the “strike zone.” The judicial role is vastly more complex than the umpire model reflects.
The Senate should focus, then, on how the justices will make politically controversial decisions, not whether they will make them. In order to get at that question, the Senate should be trying to discern whether the nominee possesses ideological moderation or ideological purity, the former being for Eisgruber a judicial virtue, and much more conducive than the latter to a laudable career on the Court. The Senate should assess nominees in the same way that presidents do, on the basis of their full records. The recent phenomenon of candidates’ refusal to answer relevant questions should be stopped by placing on the nominees the burden of demonstrating that they are, in fact, ideological moderates, especially if external evidence suggests otherwise. In Samuel Alito’s confirmation hearing in 2006, Senator Schumer asked him whether he still believed what he had said 21 years earlier when he declared that the Constitution does not protect abortion rights. Alito refused to answer. Under Eisgruber’s framework, a nominee would be presumptively disqualified for this nondisclosure. The book is a call to replace the empty political theater of recent confirmation battles with the more substantive deliberation that such an important life appointment deserves.
Related posts:
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- Brethren at the Bar and the Senate Confirmation Process
- FDL Book Salon Welcomes David Cole, Torture Memos: Rationalizing the Unthinkable
- Prop 8 Decision: What to Expect from the California Supreme Court
- SCOTUS: Selecting Justice, A Live Chat with CAC’s Doug Kendall
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Chris, Welcome to the Lake.
Rebecca, Thank you for Hosting today’s Book Salon.
Thank you, Bev. I am happy to be here. Rebecca
Thank you! And many thanks to Rebecca Brown for her superb summary of the book.
Welcome to Firedoglake – glad you could join us!
Thanks to you both for taking the time to join us.
Thanks. It’s a pleasure to be with you.
Has Chris joined us?
Yes, Rebecca, I’m here!
OK, well it is my great honor to be discussing such an important book by a leading constitutional scholar at a time when the appointment of a Supreme Court Justice is so much on our minds.
Chris, can you say a bit about how your theory of “the Next Justice” might apply to PResident Obama’s nomination of Judge Sonia Sotomayor?
Thank you for that kind welcome, Rebecca, and for your excellent summary of my book.
We’ve already seen various senators begin to draw lines in preparation for the confirmation battle. Much of the discussion is beginning in what has become a familiar way: Judge Sotomayor’s critics on the right are saying that they are afraid that she will bring an agenda, or her values, to hard cases, rather than simply “calling balls and strikes.” One of the key messages of my book is that this is the wrong way to frame a confirmation debate. We all know that justices’ values matter to constitutional adjudication: for example, John Roberts and Stephen Breyer are both superb lawyers, but they disagree along predictable liberal/conservative lines. The right focus for a confirmation hearing is on how a judge’s values will affect her decision-making, and what those values are, rather than on whether they will affect adjudication.
are you accepting the traditional right-wing descripton that justices in fact are “legislating from the bench”? How do you respond to that political slogan?
Supreme Court Justices are interpreting the law, not legislating. Where the law gives them a clear instruction, they must abide by it. In trial courts and ordinary appellate courts, the law’s instructions are often clear. But the Supreme Court is different. The Supreme Court gets to pick its cases, and chooses only those cases about which reasonable lawyers — good, competent lawyers — can disagree. Those cases will often require something else beyond the legal text or existing precedents. Indeed, sometimes the constitutional text will explicitly direct judges to consider value-laden concepts, such as “the equal protection of the laws.” In cases that present open questions about such clauses, the only way for judges to discharge their duty is to make controversial judgments about the meaning of the law. That is different from what legislators do, but it is a kind of decision-making that involves values.
Is there a tension between a justice bringing his or her own principles and values to the job, on the one hand, and still remaining open-minded, on the other?
Good afternoon Professor Brown and Mr Eisgruber.
I have not had an opportunity to read your book Christopher but I do have a question/comment.
Do you think that the degradation of the process is at least partially due to the tabloid mentality that has folks (TradMed and others), fixating on the bright shiny object of the moment?
PS. This applies, of course, to conservative justices as well as liberals. There was no way for John Roberts or the other conservatives on the Court to reach decisions striking down democratic legislation about affirmative action, gun control, or campaign finance without invoking their own, controversial, value-laden judgments about the meaning of the law.
No, I do not think so. Open-mindness means a willingness to entertain novel claims of justice, and to reconsider one’s own positions. It does not mean being a “blank slate” when it comes to questions of political justice — it’s hard to imagine any person who fit that description, or at least any person whom we would respect as a judge.
Thanks for your question! The televised, highly public character of the confirmation process has given senators and interest groups an incentive to use it for a variety of purposes. They will be trying to score points with constituencies as well as to make a decision about confirmation. This aspect of the process has tended to degrade it. On the other hand, we should not get too nostalgic about the past, or assume that it was very high-toned. In 1795, the Senate scuttled George Washington’s nomination of John Rutledge as Chief Justice, and Rutledge’s opponents spread scurrilous rumors about his mental health. This process is political by design, and confirmation fights have been bruising and ugly since the founding.
Do you think it is inappropriate for a President to select a judicial nominee who has strong ideological beliefs that the President shares, such as when Ronald Reagan pledged to get Roe v. Wade overruled?
No, that’s not inappropriate. Presidents have an obligation to choose nominees who are superb lawyers with relevant experience and good character, but they also have a responsibility to choose justices who will interpret the Constitution in a way consistent with the country’s best interests. That requires the President to develop, and act upon, his or her own controversial interpretation of the Constitution.
Historically, how important are concurring and dissenting opinions? Not the vote itself, but the opinions that cite different reasoning for the vote.
On a related note, do you learn more about a judge’s true inner workings by looking at their concurring and dissenting opinions, or by the majority opinions that they write?
If you were advising a democratic senator and a republican senator as to what questions they should ask Judge Sotomayor, what would you suggest, and would it be different for the two different parties?
“The metaphor of a judge as “umpire,” for example, has been entirely unsatisfactory. It overlooks the critical role of the judge in defining the “strike zone.” The judicial role is vastly more complex than the umpire model reflects.”
Couldn’t agree more, and I think the metaphor also hides something. The current court is slanted well to the right of where it needs to be. That means that the “strike zone” is defined as:
1) everything from the right-hand edge of the plate, and a foot and a half further to the right, is called a “strike.”
2) Every thing to the left of that redefined strike zone is called a ball.
So the problem we have now is that strike zone is defined in a radical manner.
Doesn’t it follow that we need appointees who understand the need to redefine what “justice” and “constitutional” mean?
Obviously, majority opinions — the ones that represent five votes — are the most important for shaping legal rules. Concurring or dissenting opinions may have a longer term effect: they do not state the law on the day they are issued, but they may get adopted by a majority of the Court on a later date. That can happen in at least two ways. Sometimes, the composition of the Court changes, and the concurring or dissenting justice finds herself in the new majority. Sometimes, the reasoning in the concurring or dissenting opinion is so powerful or compelling that it eventually wins the day — maybe after a short period, or maybe after a very long one (many years).
Conventional wisdom (with which I agree) is that concurring or dissenting opinions give judges more freedom to express their own views. When they write for a majority, they can include only the propositions with which their colleagues agree. When they write a concurrence or a dissent, they are often writing only for themselves.
Chris, Rebecca – how typical is it for Justices to change their basic opinions, conservative / liberal leanings during their time on the bench? Is this normal and just not talked about?
I believe Souter has moved to the left since he started.
Chris, I thought the question 20 about separate opinions might have been asking more about how useful the nominee’s separate opinions in prior cases might be for evaluating the nominee’s personal values and judicial philosophy.
Why does a supreme have to be a superb lawyer? Can’t they simply be a brilliant critical thinker such as an historian? Why would someone like Howard Zinn not make a good supreme (aside from the fact that he is to the left of Che)… he’s a great thinker, articulate and reasons well and seems perfectly capable of “figuring” out the constitution.
Why make the law for the lawyers and not for the people?’
Who actually reads laws anyway?
I actually think that, in general, senators should rely less than they now do on questions. It’s usually possible to tell a lot about a nominee from their pre-nomination track record, and it’s hard to elicit illuminating answers from them.
That said, I offer a few sample questions in my book. One example is, “Which twentieth-century justice’s jurisprudence do you most admire and why?” I don’t see how answering that question would compromise a nominee’s impartiality in the future. And if the answer were honest and detailed, it would tell you a lot about what kind of justice the nominee would be–because it would tell you something about the kind of issues the Court should decide.
It was a great answer, but a more detailed explanation is of course always nice.
I think the strike zone metaphor is so bad that it is hard to make it illuminating. Umpires are asked to determine whether a ball crossed the plate at a certain height. That’s a hard question, because the ball is moving very fast, but it’s not a value-laden question. Imagine what baseball would be like if the rule were, “a pitch shall be a strike if the batter had a reasonable chance to hit it!”
I agree with you that we need an appointments process that focuses more on how controversial portions of the law will be interpreted, but the focus should be on the actual provisions of constitutional language (such as “equal protection of the laws”) rather than more general moral concepts, such as “justice.” Ultimately, though, we agree: we’re going to need to know something about how a nominee thinks about justice in order to assess the kind of Supreme Court Justice that person will become.
Thanks, Bev. In my own view, conventional wisdom exaggerates how often justices surprise the presidents who appoint them. There are exceptions. Harry Blackmun is, in my view, the justice who changed the most during his time on the Court. He began as a real conservative and moved pretty far left. David Souter surprised the Bush administration (which appointed him) from the get-go. They wanted a “stealth conservative” who could get through the confirmation process because he had no track record — but Souter’s record was so spare that not even the administration knew what they were getting! People cite William Brennan and Earl Warren as surprises to Dwight Eisenhower, but Eisenhower wasn’t focused on their judicial philosophies when he nominated them. He chose Brennan because he wanted to pick a Northeastern Catholic Democrat in order to attract cross-over voters in the 1956 presidential election, and he picked Warren to repay a political debt from the 1952 election.
What weird ass motivations for selecting a justice… how about hair color?
Thanks Rebecca and “Xebecs”; I’m happy to elaborate on my answer to #20. Yes, for the reasons that I mentioned, concurrences and dissents may give you a better window into the jurisprudence of a Supreme Court nominee. It’s not obvious, though, that you’ll find very revealing ones. The federal appeals courts, unlike the Supreme Court, do not get a lot of cases that depend on disputes about political values; often, the issues are technical ones, and that may be so even when judges disagree. Supreme Court justices have a lot more freedom, both when voting and when choosing cases, and that gets reflected in their opinions.
It seems as if we were much better off when justices were picked the “old-fashioned way”–political horsetrading! :) But seriosly, it does seem that we have injected a problem by the pretense of thinking that a hearing can reveal whether a nominee is “qualified,” when most people nominated would be qualified in a basic sense. Yet the thing we most care about knowing–what kind of judgments would the person make–is off limits.
Do you agree with lifetime appoinmtments or should there be an age or term
limit?
One case that has me baffled about judicial ideology is Kelo v. City of New London. I don’t understand why the so-called liberal justices would vote the way they did. Can you shed any insight into it?
In general, I do think there are good reasons to care about legal ability when choosing Supreme Court justices. Even in the Supreme Court, many cases pertain not to the Constitution but to very technical issues about, for example, civil procedure or tax law. Even in cases that do pertain to the Constitution, there is an important procedural overlay that defines the issues at stake–that is one more thing that separates the kinds of issues that lawyers decide from the ones that legislators decide.
That said, nothing in the Constitution precludes the appointment of non-lawyers, and I think the idea of adding one non-lawyer to the Court might have some attractions. My own preference in this category would be for someone with political experience; a few years ago, I thought then-Senator Bill Bradley was a plausible example. But right now, we’re far away from such a possibility. Presidents and senators seem to assume that nominees ought always to have not only legal experience, but judicial experience, which seems to me a mistake.
I agree!
Very interesting question. As you may know, there are lots of countries with constitutional courts, and the US is, to my knowledge, the only one that allows its justices life tenure. A more common model is a single, non-renewable term — 12 years, I believe, is the term on the German Constitutional Court. Life tenure has a lot of problems: for example, justices serve for very long times, “freezing” the Court; they manipulate their retirements to give an appointment to a president with whom they sympathize; they sometimes serve into their dotage; and presidents have an incentive to appoint young people so that they can serve as long as possible. On the other hand, if justices did not have life tenure, they might be tempted to shape their jurisprudence with an eye to their next job (e.g, “if I decide this case in a way the president likes, maybe he’ll appoint me ambassador to England when I have to leave the Court”). It’s not a slam dunk, but I would prefer, all things considered, to see single non-renewable terms, rather than the indefinite terms we have now.
Rebecca, Chris, based on your experiences, how much influence do the clerks (support staff)have in cases and decisions. Clerks do the basic research do they not? I’ve read in past Supreme Court books, how some clerks have influenced the Justices. Your opinion?
Yesterday, I was in a meeting related to a federal bar association and we were having a discussion about the constitution actors in the confirmation process (the president who nominates and the senate which confirms) vs. the extra constitutional actors that seem to be so important these day and whether that latter group has become too important in the process.
Now, it seems like nominees have to run a gauntlet of organized interst groups. Is that just a recent phenominom , or does your research show that it was ever such, and we just remeber the past as being more dignified?
Good question, and a complicated one. For the benefit of those who don’t know it, Kelo is a case involving a development project in Connecticut. The town of New London used its power of eminent domain to take some homes so that the land could become part of an urban renewal project. New London compensated the homeowners, but they were unhappy (after all, they lost their homes!) and they complained that the “taking” violated the Constitution, because it was for the benefit of a developer rather than for “public use” (the quoted language is from the 5th Amendment).
A five-justice majority (four liberals plus O’Connor, as I recall) voted with the city; the four conservative justices dissented vigorously. The reasoning of the liberals was that, in cases about property rights, we ought to trust the legislature to decide what counted as “public use.” If judges start deciding which problems count, and which do not, the legislature will lack the tools it needs to address the complex problems facing our cities.
The decision provoked an outcry, and many states enacted legislation prohibiting takings of the sort that occurred in New London (where the land ends up in the hands of a private party, not being used for, e.g., a public road). Ironically, you might think that outcry vindicated the position of the liberals. When it comes to property rights — rather than, e.g., the rights of racial minorities — we may be better off trusting legislatures rather than judges to protect them. But the case remains a highly unpopular decision.
Yes, wasn’t it a clerk who basically created corporate “personhood”?
Thanks for your question, Cynthia. The interest group part of this process is relatively new — indeed, organized interest groups have become much more powerful in American politics in general since about 1950, and they have become much more prominent in judicial nomination hearings since the Bork nomination in the mid-80’s. I do think that the contributions of such groups have made the process uglier, especially from the standpoint of nominees. The stuff being said about Sonia Sotomayor by Republican Senators is, in general, much, much tamer than some of what’s coming from interest groups on the right (and the same is true when there’s a Republican nominee, in general).
That said, as I noted earlier, we should be careful not to think of the past as too dignified. The Rutledge nomination back in 1795 is just the first of many bruising fights that took place long before interest groups made their appearance (and Rutledge found it so humiliating that he made an unsuccessful suicide attempt after being rejected).
The clerks’ role is defined by each justice. Generally, the older, more experienced justices pretty much know what they want and have a long jurisprudence that the clerks will respect. Newer justices may be a bit more receptive to influence, but most people who get to the Court are not short on ego and they tend to want to “drive the bus.” The best thing that a clerk can do is make sure that the justice receives the very best legal argument that can be made in support of one outcome or another. If the lawyers in the case don’t do a great job of that, then the clerk can try to do better, so the justice has the benefit of thorough consideration of the competing claims. But in the end, it is the justice’s decision. I had the experience of Justice Marshall seeing a draft of an argument that he thought he agreed with, but then realizing that it just didn’t hold up when fleshed out.
In that same vein, it does seem that there is a concentratio on prior court of appeals experience and even on clerkships. It begins to seem that if one does not enter on the right “Track” practically right out of law school, well then forget it.
Right now the court is dominated by white men, Roman Catholics and graduates os a few select schools. It lacks not just ethnic and gender diversity–but diversity of experience.
That was something Justuce Oconnor has talked about a great deal in the past, how it was much more than simply her different experiences related to gender, but also because of having run for office, having been a state court judge, even being from the West.
I’ll be curious to hear Rebecca’s impressions of this. For those who don’t know, clerks are young lawyers who work as the legal staff for justices, helping them to prepare opinions — and sometimes drafting large portions of those opinions. Clerks do important work, but I think that, with rare exceptions, their influence is not nearly so great as clerks themselves would like to think (or so great as books like “The Brethren” would have you believe). I clerked for Judge Patrick Higginbotham, a conservative, and then for Justice John Paul Stevens, a liberal. In both cases, my job was to express their thinking — not to substitute for it! When I began clerking for Judge Higginbotham, I had read all those accounts of how clerks smuggled footnotes into opinions, and how the footnotes later grew into legal doctrines. In one case, I tried to drop a mildly liberal footnote into one of Judge Higginbotham’s opinions. He caught it immediately. Fortunately, he laughed. And I learned a good lesson.
Yes, I very much agree with these points about the need for diversity of experience on the Court. When Sam Alito was appointed to replace Sandra Day O’Connor, the Court, for the first time in its history, consisted of nine people all of whom had been federal judges at the time of their appointment. And, for the first time in its history, it contained nobody who had experience in elected office. Since virtually every constitutional case deals with the appropriate powers of elected officials, it’s hard to believe that this is a good state of affairs. Eight of the nine justices on the Court have attended either the Harvard or Yale Law Schools (all but Stevens, who went to Northwestern; Ginsburg attended Harvard and transferred to Columbia). 6 of the 8 now sitting spent substantial parts of their careers in Washington DC. And on it goes. I hope that President Obama will seek to diversify the experience represented on the Court with some of his future appointments.
Sorry, I missed this question. I’m afraid that’s more specific than I know, but I would be surprised if this were so–the doctrine of corporate personhood is a very old one. (And, as Rebecca and I agree, it’s very, very rare for clerks to have so much influence).
There is one statistic that I think sums it up quite starkly. Of the nine justices who decided Brown v. Board of Education in 1954, unanimously, not a single one had been a federal court of appeals judge. Today’s court, including the new nominee, is 100% former appeals judges. There is a concern that this unanimity of conventional career path can sap constittional law of some of its boldness and vibrancy, as well as “real-world experience.”
Ideology can and must inform opinions but if you look at the 4 radical conservatives on the Court ideology dominates and the Constitution is mostly a prop. I was never that taken with Roberts. I found his confirmation hearing to be a non-responsive runaround, much like Alito’s, the principal difference was that Roberts was articulate as Alito obviously wasn’t. But in both cases, Democrats caved. Leahy mumbled some reservations about stare decisis (most recently assaulted in the Montejo case) but that was it. As for Alito, Democrats pointedly failed to filibuster insuring yet another 3rd rate intelligence on the Court.
As for Sotomayor, all the talk here and elsewhere is the mudslinging by Republicans and the pushback by Democrats. The actual analysis of her record or that Obama could have made a better choice goes by the boards.
Yes, while I think that Judge Sotomayor is a good nominee who will add an important kind of diversity to the Court, I have to admit that I was rooting for a nominee such as Jennifer Granholm or Janet Napolitano. Unfortunately, I think there is a perception that such candidates are “too political” or “not experienced enough”–even though their experience is clearly relevant to constitutional issues, and even though some great justices in the past have come from political backgrounds.
Wasn’t it Santa Clara County v. Southern Pacific Railroad in 1886 that created the “legal fiction” of corporate personhood?
http://en.wikipedia.org/wiki/C…..ood_Debate
As we come to the end of this Book Salon,
Chris, Thank you for stopping by the Lake and spending the afternoon discussing
your new book and discussing the Supreme Court.
Rebecca, Thank you very much for Hosting this great Book Salon.
Everyone, if you haven’t bought Chris’ book yet, here is a link.
Thanks all.
Thanks, Hugh. You put me in the somewhat unusual position of defending John Roberts (and Sam Alito), with whose jurisprudence I disagree! On the one hand, I think Roberts was wrong, and perhaps disingenuous, to say that his values did not affect his judging. On the other hand, I believe that he and Alito are both exceptionally smart, and that they are in fact offering good faith interpretations of the Constitution. But I again agree with you when you say that the confirmation process did a poor job bringing out just how conservative they are.
As for the Sotomayor confirmation, I join you in worrying that the hearings will again miss the main issue — her judicial philosophy — though I would not frame the question as whether she’s the best nominee. For example, Rebecca and I, and perhaps some senators, would prefer a nominee with experience in elected office — but I, at least, would not regard that as a reason for refusing to confirm the president’s choice.
Your comment reflects a possibly controversial aspect of Chris’s book–he says that the Senate should feel free to reject any nominee that they think does not reflect a judicial philosophy that is in the country’s best interest. Chris maintains that the President’s role in nominating is not superior to the Senate’s constitutional role in confirming, and that both should take the job seriously and –correct me if I’m wrong, Chris– aggressively.
sounds right!
Yes, I believe that the Senate does not have to defer to the president’s choice — though there are many pragmatic reasons to do so in particular cases, and principled reasons to do so when the president nominates a moderate (liberal or conservative) from his own party.
Thank you all for your great questions, and for inviting me to participate!
Came late and still working through the comments but that sounds ominous, given Obama’s lack of interest in pursuing Bush era criminality, his support and use of the state secrets argument, his support of military tribunals, his support of indefinite detention (if courts do not give him the result he wants), and his attempts to move the legal blackhole of Guantanamo to Bagram where he hopes the writ of habeas corpus will not run.
This gets to another point. The Court throughout its history minus the decade and half of the Warren Court has always been reactionary, favoring the powers that be over ordinary Americans.
Your google works faster than mine ;-)
William Rivers Pitt also wrote a really good article on the Supremacy of the Super-Citizens (corporate personhood) which I mentioned here
Which was really a SCOTUS clerk’s *misreading* of the opinion, which has resulted in the steady erosion of democracy ever since.
Funny how such things happen amongst teh law-talking guys. Or maybe not.
So you would say that Pamela Karlan’s effect on Justice Blackmun was unusual? Also, many progressives are not thrilled with the selection of Sotomayor and would prefer a candidate such as Karlan. Is it impossible for a gay nominee to sit on the SC at this time, and when do you think it would become possible-and under what social and political conditions?