From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: [ACLU] Guardian of Liberty: American Civil Liberties Union
Organization: University of Colorado, Boulder
Date: Thu, 19 Nov 1992 06:53:25 GMT

In article <1992Nov18.173016.28229@Princeton.EDU> niepornt@phoenix.Princeton.EDU (David Marc Nieporent) writes:
>>>...Bork has a long history of studying constitutional law.
>>>He has, however, gained a set of opinions about the matter that are
>>>significantly at variance with many (but not all) other constitutional
>>>scholars. Since nobody has anything but opinions about the Constitution...
>>That's a very debatable point, but in any case...

>Which is debatable, that Bork's opinions are very different from most
>other peoples, or that nobody has anything but opinions?

That personal opinions are the sole basis of constitutional interpertation.
(Bork's opinions are certainly different from the other, popular schools
of thought...)

>>>...it seems perfectly reasonable that he should be judged
>>>by some people to have sufficiently inappropriate ones for the job.

>>I don't see how holding unpopular opinions should disqualify a
>>Supreme Court Justice. Hugh Black, for example, held many unpopular
>>views on constitutional interpertation, but he is considered to be
>>one of the "great" Justices of this century.

>Um, so?  He didn't say holding unpopular opinions *must* disqualify
>someone.  But they certainly can.
 
The assertion seems to be that "unqualified" and "holding unpopular 
views" are the same thing.
 
>Why are Justices chosen by elected
>leaders if these elected leaders aren't supposed to use their own
>judgement?

The Persident choses Justices, not the Senate. The Senate offers
their "advice and consent." I take that to mean a veto over
completely unqualified nominees, or those who are _aboslutely_
and totally in conflict with senatorial opinion (e.g. to the 
extent that the Senate doesn't think the Constitution could
survive the appointment.) Simply disagreeing on debatable political
issues does not, in my opinion, fall within the Senate's "advice
and consent" powers.

>>Actually, I would: My opinion of the "advice and consent" is that
>>the Senate should accept anyone technically qualified and able to
>>do the job (e.g. exactly what it means when in the case of appointed
>>executive officials like the Secretary of Interior. In these cases,
>>the Senate doesn't subject appointees to political litmus tests.)

>They don't, but they could if they wanted to.
 
I disagree, see above.
 
>They *sometimes* do.

Could you provide an example? All the cases I recall turned on 
qualifications, not political opinions.

>...But
>there's a *MAJOR* difference.  Executive officials don't make policy in
>theory; of course they have a lot of power in practice, but even then,
>they're following the *president's* wishes.  It's a courtesy to the
>president, among other things.

That isn't a relevant difference: The Senate's authority is identicle
in both cases, and is granted by the same clause of the Constitution:
Article Two, Section Two, clause two. The Senate's advace and
consent has exactly the same meaning and limits for _all_ appointments
made by the President.

>You seem to be ignoring the "advice" half of the role.

Advice, by it's very nature, is not binding (If you have to follow it,
it is an order, not advice.) I find the "consent" part far more
meaningful: The Senate may not consent for political reasons. However,
there is a major distinction between "agree with" and "consent to".
Consent means you can live with it, even if you disagree.

                                                Frank Crary
                                                CU Boulder

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