Friday, March 19, 2010

Thursday, March 18, 2010

Re: Punishing a Lawyer for His Clients   [Ed Whelan]

I invited Walter Dellinger, acting Solicitor General and head of the Office of Legal Counsel in President Clinton’s Department of Justice, for his comments on my recent post on the apparent demise of his law partner Sri Srinivasan’s candidacy for a D.C. Circuit seat.  Here’s his e-mailed response, which he has kindly authorized me to publish:

Ed – thank you for writing to ask about your blog posting.  I am pretty certain that there has never been a decision settling on Sri as a nominee. I also have no reason to think that he has been ruled out.  Any potential nominee who has spent time with a firm that represents businesses could, I suppose, raise initial questions for some folks in my party.  But in Sri's case he has spent a large amount of time on progressive pro bono causes (for instance he worked for Al Gore in the Bush v. Gore litigation, filed briefs for the Lawyers' Committee for Civil Rights on the voter ID issue including in the Sup Ct, worked with and alongside civil rights groups in other cases, etc).

I should note that I’m not privy to the White House’s thinking on this, but I’m pretty confident that Sri has neither been chosen nor ruled out.

I think that it’s fair to say, on the one hand, that Walter’s account is contrary to the reports from my other sources, and, on the other, that Walter disclaims the access to internal Administration decisionmaking on the matter that my other sources either had or believed they had.

03/18 04:08 PMShare

Re: Goodwin Liu on Racial Quotas Forever   [Ed Whelan]

With generous praise for my exposition of Ninth Circuit nominee Goodwin Liu’s extreme support for racial quotas in perpetuity, John Rosenberg highlights on his Discriminations blog the contradiction between what he calls President Obama’s “promised land of post-racialism” and the hard-Left racialism of Liu (and of Obama’s civil-rights appointees).  Rosenberg reposts his critique of a 2006 op-ed by Liu that argued against a “colorblind” reading of Brown v. Board of Education and that, in so doing, treated a failure to pursue racial balancing, or quotas, in schools as a form of “racial apartheid.”  Rosenberg also reposts some fun that he had revising America’s foundational documents to reflect Liu’s racialism.

03/18 03:07 PMShare

Jeffrey Rosen's Strange History   [Matthew J. Franck]

In an article posted at The New Republic titled "POTUS v. SCOTUS," Jeffrey Rosen begins this way: "Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight."  This is not a promising beginning for Rosen's piece, since it contains two dubious assertions.  First, what evidence is there that the president is "gunning for a confrontation" with the Court?  That he whined in the State of the Union address about the Citizens United case?  What does he contemplate that would really amount to a "confrontation"?  As for Roberts, he was asked about Obama's ill-informed State of the Union remarks when speaking last week at the University of Alabama law school, and his answer was pretty mild-mannered: noting the rudeness of the president's attack on the justices' decision in a setting where courtesy on their part required their sitting silently, and speculating that in future the justices might just as well stay away from such a grandstanding political event.  There is no evidence in this bland statement that the chief justice is interested in having a fight with the president.

But Rosen's article gets worse.  Having convinced himself that Obama vs. Roberts is going to be a battle royal, he then asserts that when presidents confront the Supreme Court, "it's almost always the president who prevails."  As he relates various episodes from history, Rosen hedges this assertion considerably.  But the contrary account is far closer to the truth.  Rosen thinks that John Marshall was "spooked" by the impeachment of Justice Samuel Chase.  I think he misreads a private letter Marshall wrote to Chase (missing his rueful sense of humor), and tendentiously describes Marshall's conduct in Chase's impeachment trial.  But take Rosen's account at face value, and ask the crucial question: Was there ever any sign that Marshall's judicial decision-making was the least bit affected by the expostulations of Thomas Jefferson?  Not a bit of it.

Abraham Lincoln did a good deal better in confronting the Taney Court—but mostly by ignoring it under wartime circumstances that hugely advantaged him as commander-in-chief, until such time as he could reshape it by filling vacancies.  And after a brief decade or so following the Dred Scott case, the Court was as strong as ever. 

The final significant case in Rosen's history is Franklin Roosevelt's failed effort to "pack" the Supreme Court in 1937, which Rosen says "may have cowed the Court into upholding the New Deal" despite being roundly rejected by an overwhelmingly Democratic Congress.  The more legal historians examine this episode, the weaker the case looks for any substantial effect on the Court as a result of FDR's effort.  Roosevelt didn't have the nerve to make an issue of the Court in his 1936 reelection campaign, then he tried disingenuously to sell his proposal as meeting a need for "fresh blood" in the judiciary, then he watched the plan take a thorough beating in congressional hearings all through the spring, while normally friendly newspaper editors attacked it all across the country.  It is true that the apparent shift of Justice Owen Roberts in one or two key cases is still not altogether explained to everyone's satisfaction—but we are pretty sure it had nothing directly to do with Roosevelt's court-packing plan, and maybe not much to do with a broader concatenation of political forces represented by FDR's reelection.  Rosen says that legal historian Barry Friedman of NYU argues that if Roberts hadn't budged, "Roosevelt would have prevailed in mobilizing public support for disciplining the justices."  Woulda, coulda.  Sheer speculation, based on nothing much, I'm afraid.  "Disciplining"?  As in impeaching, say, Justice George Sutherland?  Not in a million years.

What really made the difference for Roosevelt was the departure of aging justices, which began in the spring of 1937 with Willis Van Devanter's retirement.  By the end of his second term in 1940 FDR, who had had no vacancies to fill for his entire first term, had filled five.  But the court-packing plan had largely wrecked the whole of 1937 for his legislative agenda, and weakened his hand with the Democratic Congress enough that he tried unwisely to "purge" some of its members in the 1938 primaries.

Presidents who think of "confronting" the Supreme Court, more often than not, wind up involving themselves in ineffectual flailing against a sphinx-like institution that gives little response and less ground.  Believe me, I often wish it were otherwise.  After all, even with his relative success, Lincoln lost the argument against judicial supremacy, historically speaking.  More people today buy into the fallacious argument of Stephen Douglas, that opposing the Court means opposing the Constitution, than the more sensible view espoused by Lincoln in his first inaugural address (which Rosen quotes).

President Obama will have plenty of opportunity—I'm sorry to say—to attempt to reshape the Supreme Court in the ordinary way, through appointments to vacant seats.  It will not help him at all, and might hurt him in this goal, to keep harping publicly on how much he disagrees with its rulings.  If Chief Justice Roberts were in a fighting mood—which I very much doubt—he would be squinting at the White House and saying, "make my day."

03/18 01:37 PMShare

Justice Stevens on Military Diversity   [Ed Whelan]

One interesting tidbit in Jeffrey Toobin’s profile of Justice Stevens in the New Yorker is Stevens’s belief that there ought to be a military veteran on the Court.  Toobin writes:

Veterans of the Second World War dominated American public life for decades, but Stevens is practically the last one still holding a position of prominence. He is the only veteran of any kind on the Court. (Kennedy served briefly in the National Guard; Thomas received a student deferment and later failed a medical test during Vietnam.) “Somebody was saying that there ought to be at least one person on the Court who had military experience,” Stevens told me. “I sort of feel that it is important. I have to confess that.”

It turns out, though, that Toobin and, evidently, Stevens have overlooked someone.  As this article discusses, Justice Alito “was commissioned a second lieutenant in the Army after graduating from Princeton in 1972,” served for a few months on active duty after he graduated from law school, and then “went on inactive reserve status and was promoted to captain before being honorably discharged in 1980.” 

I don’t mean to compare Alito’s brief period on active duty to Stevens’s codebreaking work at Pearl Harbor during World War II.  Nor do I mean to discount Stevens’s emphasis on the value of having someone with military experience on the Court (though I’ll leave it to those with military experience to debate what Stevens’s votes in national-security cases say about the value of his experience to the Court).

03/18 12:16 PMShare

Connect the Liberal Judicial Activist Dots   [Ed Whelan]

Among the many wild rulings in my This Day in Liberal Judicial Activism collection is the Wisconsin supreme court’s 2005 decision in Thomas v. Mallett.  In that case, a four-justice majority ruled that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.  As the dissent put it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.” 

Given the enormous campaign contributions of trial lawyers to President Obama and other Democrats, it’s unfortunately no coincidence that Obama has nominated to district judgeships both the author of the majority opinion, Louis B. Butler Jr. (who was voted out of office by Wisconsin voters for his excessive judicial activism), and the plaintiff’s counsel, fatcat Democratic contributor John J. McConnell Jr.

03/18 11:36 AMShare

Wednesday, March 17, 2010

Goodwin Liu on Racial Quotas Forever   [Ed Whelan]

Among the many presentations that Ninth Circuit nominee Goodwin Liu identifies in his Senate questionnaire response was his participation in a panel on “Segregration, Integration, and Affirmative Action After Bollinger” at the American Constitution Society’s national convention in August 2003.  Liu states that he does “not have copies of any notes, transcript, or recording” of his presentation, but blogger Morgen of Verum Serum has kindly called my attention to an online ACS transcript.*  The transcript provides yet further confirmation that Liu is a hard-Left extremist.

In his remarks, Liu advocates reviving “the idea of remedying societal discrimination as a justification for affirmative action.”  Although he agrees with the Supreme Court majority in the Michigan cases that “educational diversity is a compelling interest,” he finds that rationale too limited and pragmatic.  He criticizes the Supreme Court precedent that holds that “remedial motives for affirmative action are permissible only where the policy is remedying an institution’s own discrimination, and not society’s,” and he argues that “the issue is really not as settled as it seems.”  So “we shouldn’t abandon the notion of remedying societal discrimination as a dead letter, either in law or in public debate.”

In his plurality opinion in Wygant v. Jackson Board of Education (1986), Justice Powell warned:

[A]s the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over-expansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.

Liu, to put it mildly, does not share Justice Powell’s concern about timelessly “imposing discriminatory legal remedies that work against innocent people.”  In Liu’s words, “if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.”  And concerns that “remedying societal discrimination … has no foreseeable endpoint” are, to Liu, nothing more than (as he quotes Justice Brennan) “‘a fear of too much justice.’”  So much for even recognizing, much less giving any weight to, the innocent victims of racial preferences.

What Liu’s proposed approach would mean in practice is imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever (since any persisting disparities would be attributed to past societal discrimination).

By the way, I’m willing to assume that Liu, chairman of ACS’s board, and his team of vetters were in fact somehow unable to locate the online ACS transcript, even though it’s the first item that popped up when I did a Google search of the panel title.  But imagine the furor (“cover-up!”) from Senator Leahy and company if a Republican nominee had failed to provide such damning material.

* The transcript has some obvious typographical errors (especially in case names).  I’ve tweaked the punctuation in a couple of the passages I quote.

03/17 02:40 PMShare

Tuesday, March 16, 2010

My Posts on Goodwin Liu   [Ed Whelan]

In case it’s helpful, here’s a current inventory (in chronological order) of my recent posts on the Ninth Circuit nomination of Goodwin Liu:

Ninth Circuit Nominee Goodwin Liu

The ABA and Ninth Circuit Nominee Goodwin Liu
Re: The ABA and Ninth Circuit Nominee Goodwin Liu

Ninth Circuit Nominee Goodwin Liu on Constitutional Welfare Rights—Part 1

Goodwin Liu on Constitutional Welfare Rights—Part 2

Goodwin Liu on a Federal Constitutional Right to Same-Sex Marriage

Goodwin Liu on the Death Penalty
Goodwin Liu’s Keeping Faith with the Constitution—Part 1

Goodwin Liu’s Keeping Faith with the Constitution—Part 2

Goodwin Liu’s Cheap Attack on the Roberts Nomination
Mistaken Defenses of Goodwin Liu

Goodwin Liu: Too Left-Wing for Rahm Emanuel

Goodwin Liu on School Choice in Support of Racial Quotas

03/16 05:22 PMShare

Goodwin Liu on School Choice in Support of Racial Quotas   [Ed Whelan]

Ninth Circuit nominee Goodwin Liu’s position on school choice has been touted as a supposed exception to his hard-Left record on constitutional issues.  But a fuller examination reveals a very different picture:  namely, that Liu supports only those school-choice programs that he believes will lead towards the goal of rough racial quotas in schools, and that he views even those programs as a second-best alternative to his preferred means of direct judicial imposition of interdistrict racial-balancing orders.  Indeed, so far as I’m aware (and I invite correction on this and other points if there’s material I’ve missed), Liu has never stated his agreement with the Supreme Court’s 2002 decision in Zelman v. Simmons-Harris, which ruled that school-choice programs that include religious schools don’t violate the Establishment Clause. 

Let’s examine Liu’s law-review article, “School Choice to Achieve Desegregation” (74 Fordham L. Rev. 791 (2005), co-authored with William L. Taylor).  In that article, Liu argues that “school choice can and should be used to promote desegregation” (p. 795).  Oddly, Liu never defines what he means by the term “desegregation,” but it’s clear that he uses the term expansively to refer not just to undoing the effects of state-imposed segregration but to achieving rough racial quotas in the schools.  Thus, for example, one of the two school-choice ideas that he proposes is “a funding set-aside in federal and state charter programs to create and reward charter schools that reflect the racial and socioeconomic diversity of the metropolitan area—not the local school district—where they are located” (p. 808 (emphasis added)).  As he puts it, “set-aside programs should use the racial composition of the broader metropolitan area as the reference point for measuring and rewarding diversity” (p. 808).  It is in that same sense that the second school-choice idea that he proposes—targeting vouchers to disadvantaged children and raising the amount of the voucher—is aimed at increasing the “desegregative potential of school vouchers” (p. 809).

My point is not necessarily to take issue with Liu’s two proposals but merely to emphasize how narrow they are and how driven they are by Liu’s mentality of racial quotas.  It’s not just that Liu opposes a “universal voucher program with no eligibility requirements based on socioeconomic or educational disadvantage” on the grounds that it “would likely increase segregration in both public and private schools” (p. 805).  It’s also that Liu doesn’t believe that school choice within existing urban district boundaries would yield meaningful benefits to students within those boundaries.  Perhaps he’s right, but it’s odd that supporters of school choice, who have much more faith in the transformative potential of competition to improve schools, would see him as much of an ally.

Further, Liu believes that the Supreme Court’s 1974 decision in Milliken v. Bradley, which (in his summary) “limited the legal availability of interdistrict school desegregation remedies to situations where plaintiffs could prove that ‘there has been a constitutional violation within one district that produces a significant segregrative effect in another district,’” was wrongly decided:  “With that decision, enclaves of affluent white families in suburban school districts obtained near immunity from the reach of school desegregation, even when such remedies were logistically feasible and necessary to correct a racial wrong” (p. 792 & n. 8).  Liu thus makes clear that his preferred approach to achieving racial quotas in the schools would be by judicial fiat, and it’s only his observation that Milliken “seems firmly embedded in the law” (p. 793) that leads him to explore his limited school-choice proposals to make progress toward that same end.

Liu’s proposals, of course, operate on the terrain that the Court’s decision in Zelman opened up, but while Liu refers to the Zelman ruling, he gives no indication that he believes that it was rightly decided.  Similarly, in an ABA Journal article about the Florida supreme court’s 2006 decision that struck down the state’s school-choice program, Liu seemed to welcome the court’s dubious reliance on the state constitutional guarantee of a “uniform, efficient, safe, secure, and high-quality system of free public schools.”  In the reporter’s paraphrase, “Regardless of whether courts follow the same reasoning as the court in Florida, Liu and others stress that [the court’s] decision gives legislators a new rationale for rejecting voucher programs.”

Bottom line:  Liu is a supporter of racial quotas in the schools, and he supports school choice only insofar as it furthers that goal.

03/16 12:03 PMShare

Monday, March 15, 2010

Punishing a Lawyer for His Clients   [Ed Whelan]

Q.  When is it okay to punish a lawyer for the clients he’s represented?

A.  When the clients are disfavored by the Left.

That, at least, would seem to be the lesson to be drawn from the apparent demise of Sri Srinivasan’s planned nomination to the D.C. Circuit.  According to reliable sources, the White House had settled on Srinivasan to fill one of the two vacancies on the D.C. Circuit.  (Both of the vacancies predate President Obama’s inauguration; indeed, the older one is the seat John Roberts vacated in 2005 to become Chief Justice.)  But the Left then went after Srinivasan, in part because of union animosity to his corporate clients in private practice, in part because, in his former capacity as an assistant to the Solicitor General, Srinivasan advocated the positions of the Bush administration on Guantanamo  war-on-terror detainee issues.  And the prospect of Srinivasan’s getting the nomination now appears to be dead.

(I don’t mean by this post to be seen as taking the position that it’s never proper to draw inferences about a lawyer based on the clients he represents.  That is in fact not my position.  For present purposes, I’ll limit myself to the general observation that of the three areas of government practice, paid private practice, and pro bono practice, the areas that least justify the drawing of inferences about a lawyer based on his clients are government practice and paid private practice.)

03/15 02:28 PMShare

Goodwin Liu: Too Left-Wing for Rahm Emanuel   [Ed Whelan]

According to a trustworthy source, White House chief of staff Rahm Emanuel initially vetoed Berkeley law professor Goodwin Liu’s candidacy for the Ninth Circuit on the ground that Liu’s left-wing record made him too controversial.  But new White House counsel Robert Bauer, eager to please the Left, successfully pushed back.

03/15 09:28 AMShare

Jeffrey Toobin on Justice Stevens and Retirement   [Ed Whelan]

In the New Yorker, Jeffrey Toobin has an interesting profile of Justice John Paul Stevens.  The profile is largely celebratory, but it does include a handful of comments from critics, myself included.

I gather that Stevens’s comments on the topic of his possible retirement are getting a lot of attention.  Here’s what Toobin writes:

I asked Stevens about his plans.

“Well, I still have my options open,” he said. “When I decided to just hire one clerk, three of my four clerks last year said they’d work for me next year if I wanted them to. So I have my options still. And then I’ll have to decide soon.” On March 8th, he told me that he would make up his mind in about a month.

I don’t see anything significant in Stevens’s comments.  On the assumption that Stevens wasn’t going to use the occasion of his interview with Toobin to reveal his retirement plans, it’s hardly surprising that Stevens gave an answer along the lines he did.  (Even then, he could have come up with better camouflage than the assertion that three of his clerks from “last year”—the term that ended in the summer of 2009—were ready to interrupt their careers to return to clerk for him again next year.)*

I continue to believe that Stevens intends to resign (probably at the end of April), subject only to a change in circumstances (e.g., the resignation of another justice) that would cause him to reconsider.

* A reader has persuaded me that I may have misunderstood what Stevens meant by “last year,” so I’ve stricken the parenthetical point.

03/15 09:16 AMShare

Saturday, March 13, 2010

Friday, March 12, 2010

Holder’s DOJ Embarrassed by Victory in Pledge of Allegiance Case?   [Ed Whelan]

Yesterday, the Department of Justice issued six press releases, all on seemingly routine or minor matters:  “Detroit-Area Doctor Convicted in Medicare Fraud Scheme”; “Federal Court Permanently Shuts Down Northern California Tax Preparer”; “Second Former Employee of Financial Products and Services Firm Pleads Guilty for Role in Bid-rigging and Fraud Conspiracies Involving Proceeds of Municipal Bonds”; “Former Acting Executive Director of Nonprofit Organization in American Samoa Pleads Guilty to Theft of Federal Grant Funds”; “Taiwanese Couple Pleads Guilty to Illegally Trading Protected Black Coral”; “Former New Orleans Police Detective Pleads Guilty; Confirms Danziger Cover-up.”  By midday today, it had issued one more press release, “Father and Son Plead Guilty to Selling Counterfeit Software Worth $1 Million.”

Remarkably, DOJ has had nothing to say so far about the government’s big victory in yesterday’s Pledge of Allegiance case (a case briefed and argued by Bush DOJ officials).  Might that tell you something significant about the values and priorities of Eric Holder’s DOJ?

[Cross-posted on The Corner]

03/12 12:38 PMShare

Thursday, March 11, 2010

Re: Buying a Judgeship?   [Ed Whelan]

It turns out that fatcat Democratic donor John J. McConnell Jr.—nominated by President Obama to a district judgeship in Rhode Island—received a mediocre ABA rating of substantial majority “qualified”/minority “not qualified.”  For someone with so much litigation experience (he’s been a trial lawyer for 25 years), such a poor rating ought to set off alarm bells.  At the very least, that rating makes even more clear that Senators Reed and Whitehouse recommended him because of his campaign contributions, not, as they claimed (in the Providence Journal’s paraphrase), because of his supposed “qualities of legal ability, intellect, temperament and integrity.”

03/11 04:41 PMShare

Ninth Circuit Panel Rules in Favor of Pledge of Allegiance   [Ed Whelan]

Via How Appealing comes the good news that a divided Ninth Circuit panel has ruled that teacher-led recitation of the Pledge of Allegiance, with its reference to “one Nation under God,” is constitutionally permissible.  Judge Carlos T. Bea wrote the majority opinion, which Judge Dorothy W. Nelson joined.  Judge Stephen Reinhardt wrote a 133-page dissent.

For what it’s worth, Judge Bea is a Bush 43 appointee, and Judges Nelson and Reinhardt are both Carter appointees.

03/11 02:10 PMShare

Buying a Judgeship?   [Ed Whelan]

The Providence Journal reports on President Obama’s nomination of trial lawyer John J. McConnell Jr. to a district judgeship in Rhode Island:

Rhode Island’s Democratic senators, Jack Reed and Sheldon Whitehouse, recommended McConnell for what they said were his qualities of legal ability, intellect, temperament and integrity, as well as a solid middle-class background.

Ah, yes, I’m sure that the massive campaign contributions that the article reports—“approaching $700,000 over the past two decades”—by McConnell and his wife to Reed, Whitehouse, and an array of other Democrats weren’t a factor in Reed’s and Whitehouse’s recommendation.

03/11 11:54 AMShare

Flawless Reasoning from Rosemary Barkett   [Ed Whelan]

Yes, I’m being facetious.  Sort of.

Regular readers of This Day in Liberal Judicial Activism will recognize Eleventh Circuit judge (and former Florida justice) Rosemary Barkett as a leading candidate for the distinction of worst appellate judge in the country.  An alert reader has called to my attention the curious course of conduct by Barkett in the case of United States v. Dodge.  In brief:

1.  In January 2009, Barkett was one of two judges in the per curiam panel majority that ruled that Matthew Mason Dodge, a man convicted of transferring obscene material to a minor, was not required to register as a sex offender under the federal Sex Offender Registration and Notification Act.  (I’d bet that Barkett was the primary author of the per curiam opinion; I say that both because its poor quality and convoluted reasoning are reminiscent of Barkett’s work generally and because the other judge who joined the opinion was Donald C. Pogue of the U.S. Court of International Trade, sitting by designation.)  Judge Charles R. Wilson (also a Clinton appointee) dissented.

2.  Just last week, the en banc Eleventh Circuit, on rehearing in the case, unanimously reached the opposite result of Barkett’s panel and ruled that Dodge was required to register.  Judge Wilson converted his panel dissent into the en banc opinion, which was joined by every other judge—except Barkett, who, without offering any reasoning at all, stated merely that she “concurs in the result.” 

I am not contending that the statutory issue in the case is an easy one, nor have I examined the question with enough care even to have a view whether the en banc court reached the right result.  Instead, I’d simply like to point out how utterly irresponsible it is for Barkett, after her panel vote, not to offer any effort at a reasoned explanation for her flip on the bottom line.  As the reader who called this to my attention asks, “When is the last time you saw an appeals court judge concur in an opinion that reverses and vacates her very panel opinion and not even bother to explain herself?” 

03/11 10:53 AMShare

How Robert Gibbs Is Like Jan Crawford's Six-Year Old   [Jonathan Adler]

CBS News legal corrsepondent Jan Crawford comments on the latest back-and-forth between the Supreme Court and the White House:

For the life of me, I just don't get why the White House continues to try to pick a fight with the Supreme Court. I've suggested before that perhaps it's a sign President Obama intends to tap an outsider when John Paul Stevens retires, so he can beat the drum that the Court is out of touch with everyday Americans.

But after Chief Justice John Roberts made some entirely reasonable remarks yesterday — and White House Press Secretary Robert Gibbs just had to respond — it's now getting ridiculous.

Whether the White House has a short-term or long-term strategy or no strategy at all, it's flat-out absurd and ill-advised for the administration to think it should always have the last word. It's like my 6-year-old: "I don't LIKE your idea. I like MY idea."

There's more.

Crawford's suggestion that the White House could be preparing to nominate an "outsider" to the Supreme Court is particularly interesting.  The conventional wisdom holds that the next nomination is Solicitor General Elena Kagan's to lose.  She'd be an "outsider" in one sense — she's never been a judge — but she's part of the Administration.  That's not much of an "outsider" qualification.  Nor is her former job as Dean of HArvard Law School or her work in the Clinton Administration.

03/11 08:43 AMShare

Two More Nominees   [Jonathan Adler]

Yesterday, the White House annouced two more appellate judicial nominations, assistant U.S. attorney for the southern district of New York Raymond Lohier, Jr. to the United States Court of Appeals for the Second Circuit and northern Ohio federal district court Judge Kate O’Malley to the United States Court of Appeals for the Federal Circuit.  Judge O'Malley's nomination is particularly signfiicant as there are no former trial judges on the Federal Circuit.  (She's also a CWRU alum and is my colleague, as she teaches a regular course in Patent Litigation.) 

Do the latest nominations indicate the White House is speeding up the nominations pace?  Perhaps.  The BLT notes that this is the third consecutive Wednesday on which the Administration has made at least one appellate nomination.

03/11 08:35 AMShare

Wednesday, March 10, 2010

Mistaken Defenses of Goodwin Liu   [Ed Whelan]

It appears that a couple of blogs—Support Goodwin Liu (“SGL”) and Confirm Goodwin Liu (“CGL”)—have been launched in support of Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit nomination.  From a quick wade through the blogs, I see that they purport to take issue with two of my blog posts.  I’m pleased to report that the criticisms are ill-founded. 

First, in response to my post demonstrating that the “mode of reasoning” in an amicus brief that Liu submitted “clearly dictates that Liu … believe[s] that California’s definition of marriage violates the equal-protection guarantee of the federal Constitution,” SGL repeats what I had already made crystal-clear:  in my words, that the amicus brief argued that “California’s definition of marriage as between a man and a woman violated the equal-protection guarantees of the state constitution.”  SGL tries to downplay the brief’s almost exclusive reliance on federal cases, but nowhere offers any reasoned explanation how the brief’s analysis of those cases would not apply with full force to the federal constitutional issue.  Instead, SGL retreats to the artful evasion that Liu “has never argued that the federal Constitution prohibits state laws that bar same-sex marriage” and that Liu in testimony has stated the blindingly obvious point that “Proposition 8’s validity under the federal Constitution ‘is an open question.’”  Yes, it is an open question—but it’s crystal-clear which way Liu would decide that open question.

Second, in response to my post demonstrating the contemptibly poor quality of Liu’s attacks on John Roberts’s nomination to the Supreme Court, Jonathan Singer—a student of Liu’s who runs CGL—doesn’t take issue with a word that I wrote but contends that my post “is wholly lacking ... in the recognition that Liu was entirely correct in his estimation of the type of Chief Justice John Roberts would be.”  Well, if Liu had simply predicted that Roberts wouldn’t be to his liking on various issues, I wouldn’t have seen any point in taking issue with him.  But instead he offered arguments that he purported to draw from Roberts’s “record” and “legal career.”  In his convenient disregard of Liu’s actual arguments, Singer displays the same contempt that Liu did for the integrity of reasoned argument.

Given the poor quality of argument that the pro-Liu blogs have displayed, I don’t intend to engage in an extended back-and-forth with them.  That said, if I discover that any of my posts on Liu are in any respect mistaken, I will abide by my usual practice of acknowledging and correcting my mistakes.

03/10 03:52 PMShare

Will the Left Oppose Elena Kagan?   [Ed Whelan]

If (as I expect) there is a Supreme Court vacancy soon, one big question that will affect the political dynamic over the White House’s selection of a nominee is whether the Left will mount vigorous and effective opposition to the possible nomination of Solicitor General Elena Kagan.  It is a remarkable testament to the perceived political impotence of the Left that everyone seems to take for granted that the answer to that question is no. 

Let me make clear at the outset that the question I am posing is not whether the Left would oppose confirmation of Kagan after she has been nominated.  It is instead whether the Left would exert any sway in stopping Kagan from being nominated in the first place.

Let’s briefly review some of the reasons why the Left would not be happy with a Kagan nomination.  (These do not add up to compelling reasons why conservatives should be happy with a Kagan nomination, but that’s a matter for another post.)

First, the Left is hungry for a liberal lion who will use the confirmation hearing to make a compelling public case for the so-called “progressive” vision of constitutional interpretation.  Its hunger is all the greater after last year’s confirmation hearing in which now-Justice Sonia Sotomayor demoralized and disgusted her supporters by trying to disguise herself as a judicial conservative. 

Second, far from being a liberal lion, Kagan has (as these New York Times articles put it) “provided few clues about where she stands on the great legal issues of the day” and has established a “reputation for finding the middle on difficult legal and political issues.”  (One notable exception to her cryptic record is the topic of gay rights, where Kagan has supplemented her academic record of extremist rhetoric and utterly implausible legal analysis by subverting, in her SG capacity, the Don’t Ask, Don’t Tell law and the Defense of Marriage Act.)

Third, on issues of executive power and national security, Kagan is far from the Left.  For example, as the second of the hyperlinked NYT articles notes, at her confirmation hearing for Solicitor General, there was “no daylight” between Kagan and Republican senators on “the president’s broad authority to detain enemy combatants.”  (See more examples in this previous post of mine.) 

Fourth, in her briefing of the Citizens United campaign-finance case, Kagan abandoned the actual hard-Left rationale of the Court’s 1990 ruling on corporate-speech restrictions in Austin v. Michigan State Chamber of Commerce and thus paved the way for the conservative Court majority to overrule Austin in Citizens United. 

Fifth (and much to her credit in my eyes), Kagan has displayed genuine admiration and appreciation for Justice Scalia as well as a liberality of spirit towards conservative law professors and students at Harvard.

Sixth, if she were to make the transition from SG to the Supreme Court, Kagan would face extraordinary recusal obligations during her initial two or three years on the Court, with those recusal obligations disproportionately concentrated in matters of importance to the Obama administration.  Among other things, Kagan would have to disqualify herself from all cases in which she authorized an appeal from an adverse district-court ruling (and virtually all appeals from adverse district-court rulings require SG approval).  She would also likely have to disqualify herself from challenges to legislation supported by the Obama administration (including, if it is enacted, Obamacare) if she offered pre-enactment advice on the legal questions at issue.  In the event that the other eight justices were divided, her recusal would mean that conservative results in the courts below would stand.  Perhaps more importantly, Justice Kennedy might well be much more open to the conservative approach in such cases, precisely in order to avoid an unproductive deadlock.

With 59 Democrats in the Senate, it’s a safe operating assumption that virtually anyone President Obama nominates to the Supreme Court will be confirmed.  That makes it all the more striking that the Left shows no signs of willingness to fight for one of its favored candidates to be nominated.

03/10 02:28 PMShare

No Protestants on the Court?   [Ed Whelan]

This article from Monday’s Washington Post poses the interesting question, “Does President Obama’s next Supreme Court nominee need to be a Protestant?” 

According to the article, although “51 percent of Americans identify[] with one of the Protestant religions,” “the Supreme Court would for the first time in its history be without” a Protestant justice if Justice Stevens retires this year and isn’t replaced by a Protestant.

As I’ve previously said, I don’t care much for the diversity game, but it’s interesting to see whose diversity doesn’t count for much.

03/10 09:49 AMShare

Chief Justice "Troubled" by SOTU    [Jonathan Adler]

The Associated Press reports that Chief Justice Roberts was "troubled" by the scene at this year's State of the Union address.

"To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," said Roberts, a Republican nominee who joined the court in 2005.

Roberts said anyone is free to criticize the court and that some have an obligation to do so because of their positions.

"So I have no problems with that," he said. "On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according the requirements of protocol - has to sit there expressionless, I think is very troubling."

03/10 08:23 AMShare

Chatigny Hearing Postponed   [Jonathan Adler]

The Senate Judiciary Committee postponed a hearing on district court judge Robert Chatigny, a nominee to the U.S. Court of Appeals for the Second Circuit, due to allegations he acted improperly in trying to stop the execution of Michael Ross, aka "The Roadside Strangler," who was convicted of murdering four women, and confessed to raping and murdering even more.  FoxNews.com reports:

Chatigny stunned those involved in the serial killer case in early 2005 by pressuring Ross' attorney on a conference call to challenge his scheduled execution even though Ross had said he did not want to fight. 

The judge had raised concerns about whether Ross was mentally unfit and whether prison isolation had led to despair — at the time of the conference call, federal appeals courts had overturned two prior orders from him postponing the execution. 

According to a transcript of that Jan. 28 call, the judge threatened to go after the law license of Ross' attorney, T.R. Paulding. . . .

"So I warn you, Mr. Paulding, between now and whatever happens Sunday night, you better be prepared to live with yourself for the rest of your life," Chatigny said. "And you better be prepared to deal with me if in the wake of this an investigation is conducted and it turns out that what Lopez says and what this former program director says is true, because I'll have your law license." 

Ramon Lopez was an inmate who had written a letter to Chatigny saying Ross had been brainwashed by mental health professionals. . . .

On the conference call, the judge repeatedly stuck up for Ross, saying he suffered from "this affliction, this terrible disease" and suggesting Ross "may be the least culpable, the least, of the people on death row." . . .

In the end, the execution was temporarily delayed and ultimately carried out. But in the aftermath, seven prosecutors from Connecticut filed a complaint against the judge with the Judicial Council of the Second Circuit. Among the complaints were that the judge had threatened Paulding and that he had not disclosed that in 1992 he filed an application to file a legal brief in support of Ross' appeal — though the judge never ended up filing that brief. He was later cleared of misconduct. 

This year, in a letter dated March 5 to Senate Judiciary Committee Chairman Patrick Leahy and Sessions, one of those prosecutors wrote that Chatigny's actions in the run-up to the execution "call into question his suitability" for the Court of Appeals seat. 

"Judge Chatigny completely abandoned the role of neutral and detached magistrate and instead became an advocate for the position held by the parties who were seeking to stop the execution of Michael Ross," wrote Michael O'Hare, an assistant state's attorney in Connecticut. He described the Jan. 28 conference call as a "tirade" in which the judge was "threatening and intimidating" others.

Senator Leahy agreed to postpone the hearing at the reuqest of Senate Republicans after receiving the prosecutor's letter.

03/10 08:02 AMShare

Monday, March 08, 2010

Saturday, March 06, 2010

Thursday, March 04, 2010

Re: Baseless Roberts Rumor   [Ed Whelan]

Above the Law explains how the baseless Roberts retirement rumor got started: 

Our criminal justice professor [writes a Georgetown law student] started our 9 am lecture with the news that roberts will be resigning tomorow for health reasons — that he could not handle the administrative burdens of the job. He would not say how he knows — but halfway through our lecture on the credibility and reliability of informants he revealed that the Roberts rumor was made up to show how someone you ordinarily think is credible and reliable (ie a law professor) can disseminate inaccurate information.

Alas, there are still many law students who somehow think of most law professors as credible and reliable.

03/04 06:23 PMShare

Goodwin Liu’s Cheap Attack on the Roberts Nomination   [Ed Whelan]

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination.  According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.” 

Let’s consider the quality and integrity of some of Liu’s arguments:

1.  Evidently borrowing from People for the American Way’s playbook, Liu offers as the lead count in his indictment Roberts’s unanimous opinion for the D.C. Circuit in Hedgepeth v. Washington Metropolitan Area Transit Authority.  That case concerned a D.C. policy that provided that minors (but not adults) who committed offenses in Metrorail stations be taken into custody.  D.C. police applied the policy to a 12-year-old girl who ate a French fry in a Metro station.  In a straightforward application of Supreme Court precedent, the district judge— Clinton appointee (and winner of the Thurgood Marshall Award of Excellence) Emmet Sullivan—described the policy as “foolish” but ruled that it did not violate the Constitution.  Similarly, Roberts opened his opinion with this summary paragraph:

No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later—all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘‘foolish,’’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

And later:

The district court had and we too may have thoughts on the wisdom of this policy choice—it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears—but it is not our place to second-guess such legislative judgments.

Liu’s account, however, tries to leave the impression that Roberts personally supported the application of the policy to the child (and doesn’t mention any of the facts that would destroy that impression):  “Roberts said the police’s treatment of Hedgepeth served ‘the goal of promoting parental awareness and involvement with children who commit delinquent acts.’”  The reader who mistakenly placed his trust in Liu wouldn’t understand that the passage that Liu clips is in the context of Roberts’s application of very deferential rational-basis review:  “We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.”

As I wrote in “The French-Fry Flapdoodle”:  “It is very amusing that advocates of expanded D.C. ‘home rule’ … won’t even trust D.C. officials to establish food policies in Metro stations. The Framers had faith that Americans were fit for self-governance. Those on the Left who think judges have a roving mandate to correct every stupid law or policy plainly don’t share that faith.”

2.  Liu’s second count against Roberts is even worse (and, again, seems to be just a rehash of PFAW’s sloppy attack):

In 2003, [Roberts] wrote an opinion urging his court to consider overruling its own precedent to hold that an Endangered Species Act regulation exceeded Congress's power to regulate interstate commerce.

In addition to weakening key environmental laws, Roberts's theory of limited federal power would potentially undermine bedrock civil rights laws, including the Civil Rights Act of 1964. His theory was so extreme that it was all but rejected by the Supreme Court in a recent decision upholding federal power to ban medicinal uses of home-grown marijuana.

Liu is wrong on all counts.

Roberts, in his four-paragraph dissent from the denial of rehearing en banc, did not opine (much less urge his court to hold) that the challenged regulation “exceeded Congress’s power to regulate interstate commerce.”  What he did was point out that the particular approach the panel majority took “seems inconsistent” with Supreme Court holdings and conflicts with a Fifth Circuit ruling, thus making en banc consideration appropriate.  He specifically stated that en banc review “would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.” 

After initially parroting the same false line, even the New York Times acknowledged that its (and, by implication, Liu’s) account was mistaken:  “He [Roberts] did not say the federal government lacked the power to block a California real estate development because it endangered the toad.… He did not question the constitutionality of the Endangered Species Act.”  As Jonathan Adler wrote at the time (same link; emphasis in original):  “These mistakes should never have occurred, as the meaning of Roberts’ opinion should be clear to anyone with a modicum of legal training who actually read the opinion.”

So Liu is further wrong in claiming that Roberts advocated a “theory of limited federal power” that would “weaken[] key environmental laws” and “potentially undermine bedrock civil rights laws.”  And, as Jonathan has confirmed for me, Liu is also wrong in contending that the Supreme Court’s later decision in Gonzales v. Raich “all but rejected” the point that Roberts did make.  (It’s extremely odd in any event for Liu to rely on a later Supreme Court ruling to fault Roberts’s reading of the Supreme Court precedents that existed at the time of his opinion.)

3.  In a clear and hilarious sign of what a hard-Left ideologue he is, Liu maintains that the values of “free enterprise,” “private ownership of property,” and “limited government” “are code words for an ideological agenda hostile to environmental, workplace, and consumer protections.”

4.  Liu calls Roberts’s nomination “a seismic event that threatens to deepen the nation’s red-blue divide.”  But it should now be clear that it is Liu’s nomination—threatening to entrench the domination by left-wing Californians of the nine-state (and two-territory) Ninth Circuit—that would deepen the Ninth Circuit’s red-blue divide, the very divide that has fueled efforts to split the circuit.

03/04 05:50 PMShare

The Efforts to Disbar Bush Lawyers   [Ronald D. Rotunda]

The Department of Justice (DOJ) has announced that it will not discipline the lawyers involved with the Torture Memorandum — Jay Bybee (a federal judge) and John Yoo (professor of law at the University of California, Berkeley). The DOJ rejected arguments that the Memorandum embraced “incompetent” arguments, in violations of the ethics rules governing lawyers.

I oppose waterboarding, although our failure to use it means that there will be important information we do not learn. And I also oppose efforts to discipline those with a different view. When I was younger, back when I knew it all, I might have thought that anyone who disagreed with me must be incompetent. That is no longer true.

 One major argument repeatedly advanced is that the Memorandum was incompetent in referring to a Medicare statute to define “severe pain.” In determining the meaning of the relevant words in the federal statute that specifically bans “torture,” the Memorandum methodically looked at the legislative history of that statute, each word as defined in a half-dozen dictionaries, the word as used in the cases, and as used in any other federal statute. It is neither incompetent nor misleading (nor unusual) to quote from a statute, explain that Congress enacted that different statute for a different purpose, and note that, oddly enough, the meaning in that other statute is the same meaning that one finds in various dictionaries, in the caselaw, and in the legislative history of the anti-torture statute. If the Memorandum had deleted any reference to the Medicare statute, it would reach exactly the same conclusion. The Memorandum may be wordy, but it is not incompetent.

Moreover, it is hard to say that its analysis of what is torture is “incompetent” when the Third Circuit adopted it in a case where a Haitian alien complained of torture. [Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008)] The ten judges in the majority knew exactly what they were doing because the three-member dissent specifically objected to accepting the Bybee-Yoo analysis. [528 F.3d at 193 (dissent)] Last April, lawyers in the Obama Justice Department adopted those same arguments defining torture in a brief urging the deportation of John Demjanjuk. The number of incompetent layers (and judges) that DOJ must report to the discipline authorities is increasing at an exponential rate.

A legal opinion is often called a comfort letter. It tells the client that some action will, or will not, occur, such as, “an investment in a particular partnership will provide the client with a valid federal tax deduction.” The Memorandum offers no comfort to anyone who engages in torture. It uses the language of “might” (30 times) and “may” (58 times). For example, it says that there may be defenses to a prosecution for torture, such as lack of intent. To accidentally bump someone with a burning cigarette is not torture; to do it intentionally is. The Memorandum warned that a jury might not accept such defenses.

The news media frequently quotes language in the Memorandum that defines torture as “equivalent in intensity to the pain accompanying serious physical injury,” like “organ failure” and “death.” Surely torture covers more than that. Indeed, it does. In the very paragraph from which these words are ripped, the Memorandum goes on to explain that any severe harm (whether mental, physical, or psychological) is torture. The Memorandum advises the reader to turn to an appendix that discusses every published federal case concerning torture and explained the many forms it may take, like cigarette burns, hearing other prisoners being beaten, riding a prisoner “like a horse, simultaneously hitting him in the head and body with a knife handle.”

If there were going to be discipline, it could not stop with Bybee and Yoo. Add John Ashcroft to the list, because he was attorney general at the time. Either he supervised (and therefore should have figured out that the Memorandum was “incompetent”), or he did not supervise (and therefore the ethics rules say he failed to supervise adequately). Add any lawyer who worked on the project, for the ethics rules have no “good soldier” defense of “just following orders.” And do not forget the members of Congress who were told of water-boarding at the time and expressed concern that the CIA was not doing enough. Those who are lawyers should be disciplined too, because — as one law professor who testified before the Senate said — the Memorandum was so obviously incompetent that anyone who spent a “few seconds on a computer” would figure that out.

As the number of disbarred lawyers increases, the supply of lawyers decreases, which should allow me to raise my rates. But wait, I’ll be disbarred too because I must be incompetent for not understanding that the Memorandum is incompetent.

— Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman U. School of Law.

03/04 04:30 PMShare

Baseless Roberts Rumor   [Ed Whelan]

I was out of the office when the wild rumor circulated that Chief Justice Roberts supposedly is considering resigning.  I have it on excellent authority that the rumor (which the publisher has now retracted at the same link above) is entirely baseless, as is the related rumor that Roberts is supposedly ill.

03/04 04:02 PMShare

Wednesday, March 03, 2010

New Nominee for Tenth Circuit   [Jonathan Adler]

Today President Obama nominated Professor Scott M. Matheson Jr., former Dean of the University of Utah law school, to the U.S. Court of Appeals for the Tenth Circuit.  Of note, Matheson's brother is Rep. Jim Matheson.

03/03 10:59 PMShare

Goodwin Liu’s Keeping Faith with the Constitution—Part 2   [Ed Whelan]

[Continued from Part 1]

Ninth Circuit nominee Goodwin Liu’s attack on originalism in Keeping Faith with the Constitution is also shoddy.  Liu claims that originalists believe that “modern constitutional controversies should be resolved on the basis of what the framing generation understood the text to mean in application” (p. 25 (emphasis added)).  He thus imputes to Justice Scalia and other originalists the position that original meaning is limited to actual original expected applications.  As I have previously explained, Scalia’s originalism is clearly not limited to original expected applications.  Rather, Scalia’s focus on the objective public meaning of constitutional text involves a hypothetical inquiry that asks how a fully informed public audience living when a particular provision was adopted would understand that provision. 

To be sure, Liu states that his “view of constitutional fidelity is not at odds with originalism if originalism is understood to mean [1] a commitment to the underlying principles that the Framers’ words were publicly understood to convey, as opposed to [2] the Framers’ expectations of how those principles would have applied at the time the were adopted” (p. 35).  He exempts from his criticisms those who hold the first position.  But the dichotomy that he posits is a false one that excludes the vast middle ground in which original meaning is informed by original expected applications but is not limited to them. 

Liu contends that “originalism as a complete and exclusive theory of constitutional interpretation founders on two decisive objections”:  first, it is indeterminate, and, second, “it cannot account for many of the constitutional understandings that Americans take for granted today” (pp. 37-38). 

Let’s take these objections one at a time.

First, while I believe that Liu’s misunderstanding of originalism leads him to overstate the indeterminacy of originalism, I agree with him that originalism alone will not clearly resolve every constitutional question.  But I don’t see this as a troubling defect.  As I’ve written in the chapter that I’ve contributed to the new book Freedom and the Rule of Law:

An original-meaning approach is a necessary component of sound judging.  And, for the vast bulk of issues that have been hotly contested in recent decades, it is sufficient.  But there are also judicial cases in which original meaning, even together with any appropriate canons of construction, does not yield clear answers.  In a democratic republic, principles of judicial restraint properly supplement originalism.…

[W]hen originalist methodology does not yield a sufficiently clear answer to a constitutional question, judges have no authority to override democratic enactments.  Reasonable people can dispute how to define the requisite level of clarity, and it may even be that the level will vary depending on context or the constitutional provision at issue.  But a law professor’s mere best guess as to constitutional meaning cannot be a judge’s basis for trumping the majoritarian process.  Thus, when originalism is allied with judicial restraint, the fact that originalism will not always yield sufficiently clear answers is not, as some critics mistakenly think, a fatal or even a significant defect and does not somehow render originalism unworkable.  Rather, that situation calls for judges to apply statutory law.

Liu also seems somehow blind to the fact that his everything-and-the-kitchen-sink approach is at least as indeterminate as originalism.

Second, and again subject to Liu’s misconception of originalism leading him to overstatement (including on Brown vs. Board of Education, as I discuss in this essay), I also generally agree with him that originalism “cannot account for many of the constitutional understandings that Americans take for granted today.”  That might well be a relevant objection to originalism if the project of originalists like Justice Scalia were to correct every wrong precedent.  But as Scalia has explained in A Matter of Interpretation:

“Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.…  Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.”

Liu’s own approach can account for all of the “constitutional understandings that Americans take for granted today” only because it is so infinitely malleable.  Moreover, it’s hardly a surprise that unsound Supreme Court rulings would misshape the “constitutional understandings that Americans take for granted.”  That fact ought to counsel against freewheeling judicial inventions, not, as Liu would have it, be used to justify yet more of them.

03/03 03:01 PMShare

Goodwin Liu’s Keeping Faith with the Constitution—Part 1   [Ed Whelan]

I’ve read through Keeping Faith with the Constitution, the American Constitution Society publication (downloadable here) that Ninth Circuit nominee Goodwin Liu co-authored with fellow lefty law professors Pamela S. Karlan and Christopher H. Schroeder.  (For the sake of economy, I will refer in the remainder of this post only to Liu.)

The stated purpose of Keeping Faith is to “describe and defend” a “dynamic process of [constitutional] interpretation” that Liu labels “constitutional fidelity.”  “Interpreting the Constitution,” he argues, “requires adaptation of its broad principles to the conditions and challenges faced by successive generations.”  His interpretive approach draws on a variety of considerations:  original understandings, “the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.”  Such an approach, he asserts, is “richer than originalism …, more consistent with the history of our constitutional practice, and more persuasive in explaining why the Constitution remains authoritative over two hundred years after the nation’s founding.  Indeed, he claims, his approach “is what enables the American people to keep faith with the Constitution from one generation to the next.”  (p. 2)

If all this sounds tiresomely familiar, that’s because the tendentious and undescriptive label “constitutional fidelity” is just a rebranding of the same old “living Constitution” rhetoric that left-wing proponents of judicial activism have used to camouflage their constitutional inventions.  (There would seem to be an important lesson in the fact that the Left—er, I mean “liberals,” oops, now it’s “progressives”—manages to stigmatize every label it adopts.  Will it soon even ruin the term “fidelity”?) 

Indeed, it’s comical to see how Liu, in back-to-back paragraphs (p. 25), purports to distinguish his approach from that of “living Constitution” advocates.  The “living Constitution” approach, you see, understands the Constitution as “grow[ing] and evolv[ing] over time as the conditions, needs, and values of our society change” and contends that “such evolution is inherent to the constitutional design because the Framers intended the document to serve as a general charter for a growing nation and a changing world.”  That approach maintains that “constitutional interpretation must be informed by contemporary norms and circumstances, not simply by its original meaning.”  In supposed sharp contrast, the “constitutional fidelity” approach maintains that the Constitution must be interpreted “in light of the conditions and challenges faced by succeeding generations.”  Its words and principles must be interpreted “in ways that sustain their vitality over time.”  Judges must ask “how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society.”

If you, unlike me, somehow discern a meaningful iota of a difference between Liu’s description of the “living Constitution” approach and his description of “constitutional fidelity,” the rest of Keeping Faith—in which Liu defends the soundness of judicial inventions from Miranda to Roe v. Wade to Lawrence v. Texas—should demonstrate that any difference is meaningless in practice. 

03/03 01:48 PMShare

Barnett on McDonald   [Jonathan Adler]

Georgetown University law professor Randy Barnett has an interesting article on the oral argument in McDonald v. Chicago in today's Wall Street Journal.  Alas, it's behind a pay wall, but here's a brief taste of his discussion of whether the Supreme Court will reconsider its 1873 decision in the Slaughterhouse Cases.

Judging by yesterday's oral argument, the Supreme Court is afraid to revisit that 1873 decision for fear of opening a can of worms. Chief Justice John Roberts began the questioning by invoking the heavy burden on anyone seeking to reverse Slaughter-House. Justice Antonin Scalia referred to the Privileges or Immunities Clause as the "darling of the professoriate," a reference not intended as a compliment.

Noticeably absent was any question—not one—by any justice challenging the historical evidence that the right to keep and bear arms was among those included in the Privileges or Immunities Clause. For that matter, no justice seemed at all interested in the original meaning of any aspect of the 14th Amendment. . . .

So what did the justices discuss? In a revealing early question, Justice Scalia asked whether it isn't "easier" just to use the Due Process Clause.

What followed was nearly an hour-long discussion between the Court and lawyers about whether or not a right to arms was "implicit in the concept of ordered liberty" and whether something else should be the test of whether a right is "fundamental." Should rights spelled out in the Constitution's text be treated differently from unenumerated ones? How much of the right to keep and bear arms is applicable to the states? The entire colloquy was unmoored from the text and history of the 14th Amendment.

In other words, the justices became lost amid their own formulations, demonstrating by their wandering discussion that using substantive due process as a way of deciding what rights in the Bill of Rights get protection against the states ("incorporated") is really, really hard. Not only do they have to decide, all on their own, what is in or out, they also have to adopt the criteria by which to make this decision.

There are also quite a few posts on the Volokh Conspiracy discussing the oral argument and the debate over how to interpret the Privileges or Immunities Clause of the 14th Amendment.

03/03 09:52 AMShare

Senate Confirms Keenan   [Jonathan Adler]

Yesterday the Senate voted 99-0 to confirm Virginia Supreme Court Justice Barbara Keenan to the U.S. Court of Appeals for the Fourth Circuit.

03/03 09:48 AMShare

Tuesday, March 02, 2010

Supreme Court Misfires on McDonald Argument   [Clark Neily]

In 1861, America began a war to end slavery. Shortly thereafter, we began another battle — Reconstruction — to end the incidents of slavery, culminating in the ratification of the Thirteen, Fourteenth, and Fifteenth Amendments. But from today’s arguments in McDonald v. City of Chicago, you would never know any of that had ever occurred, let alone that the Fourteenth Amendment — including specifically its Privileges or Immunities Clause — was enacted for the specific purpose of putting an end to a Southern tyranny that included the systematic disarmament of newly free blacks and their white supporters in order to keep them in a state of servile terror.

McDonald involves a challenge to Chicago’s decades-old handgun ban, which has shown itself to be no more effective at limiting violent crime than the one struck down by the Supreme Court two years ago in District of Columbia v. Heller. But it appears that any similarity between the two cases may end there.
 
Heller, in which I was co-counsel to the plaintiffs, was a milestone case because it represented the Supreme Court’s first serious look at the question of gun rights, specifically whether the Second Amendment protects an individual’s right to keep handguns at home for lawful self-defense. The Court correctly said yes to that question, rejecting the nonsensical idea that the Second Amendment only protects some sort of “collective” right on the part of states to arm their own militias. Notably, both Justice Scalia’s majority opinion and the principal dissent authored by Justice Stevens were couched in overtly originalist terms. In other words, although the justices split 5–4 on the outcome of the case, all nine seemed to agree that their interpretation of the Second Amendment should be guided by an appreciation of the relevant historical context. And while the two sides disagreed significantly about key aspects of that history (including the prevalence of gun regulation during the Founding era), they certainly paid meticulous attention to it.

And that is where this morning’s arguments in McDonald present such a jarring contrast to the justices’ reasoning in Heller.

McDonald presents two questions, one easy and one a bit more difficult. The easy question is whether the right to keep and bear arms applies not just to the federal government, which was the issue in Heller, but to state and local governments as well. The answer is yes, undoubtedly. The harder question is how.

Unlike the federal government, states are not directly bound by the Bill of Rights. Instead, state and local governments are bound by the Fourteenth Amendment, which requires them to ensure that all people receive both due process and equal protection of the laws and forbids them from abridging “the privileges or immunities of citizens of the United States.” Over the years, the Supreme Court has “incorporated” nearly all of the two-dozen or so discrete provisions in the Bill of Rights against the states, but it has done so through a controversial doctrine called “substantive due process.” Lawyers for the would-be gun owners in McDonald argued, correctly, that a more originalist approach would be to take a fresh look at the text, history, and original public meaning of the Fourteenth Amendment and conclude, as have virtually all modern scholars and practitioners familiar with the issue, that the right to keep and bear arms is protected first and foremost by the Privileges or Immunities Clause — not the modern doctrine of substantive due process.

Powerful support for that approach comes not just from the congressional debates over the adoption of the Fourteenth Amendment and the extensive coverage those debates received in leading periodicals, but also from the abundant historical evidence about what prompted Congress to propose the Fourteenth Amendment in the first place. Simply put, it was the tyranny of Southern states and their brazen attempt to keep blacks in a state of constructive servitude while terrorizing anyone who presumed to stand in the way. The legislative record contains extensive reports of forced disarmaments and lynchings, often at the hands of militias and other officials acting under color of state law. Reconstruction Republicans were outraged by that conduct, as was the public. As a result, few (if any) rights were mentioned as regularly in connection with the Fourteenth Amendment as the right to keep and bear arms.

That history is stark, undisputed, and, if today’s arguments are any indication, seemingly irrelevant to the Court’s decision whether the Fourteenth Amendment protects the right to keep and bear arms. If so, that’s a tragedy. Correction: the continuation of a tragedy.

— Clark Neily is a senior attorney with the Institute for Justice and was one of three attorneys who litigated on behalf of gun owners in District of Columbia v. Heller.

03/02 03:46 PMShare

A Tale of Two Editorials   [Roger Pilon]

It’s a rare day when the New York Times gets something right editorially while the Wall Street Journal gets it wrong — and on gun rights, no less. Yet that was the case today, when the Supreme Court heard oral arguments in McDonald v. Chicago, a challenge to Chicago’s draconian gun-control law.

Not surprisingly, the Times opens with a shot against the Court’s 2008 decision in Heller v. District of Columbia, which found for the first time that the Second Amendment protects an individual’s right to keep and bear arms, quite apart from whether he’s a member of a militia. The next step, at issue in McDonald, is whether that right was good not simply against the federal government (Heller decided that) but against states and municipalities as well. Both the Times and the Journal argue, correctly, that the Bill of Rights should apply against the states, and that’s how the Court will likely rule. The difference is on the grounds for so ruling, and it’s not a trivial matter.

The Times reviews very briefly the history that gives rise to that issue. In a nutshell, and filling in some blanks, the Bill of Rights applied originally only against the federal government. With the ratification of the Fourteenth Amendment in 1868, however, U.S. citizenship was defined and elevated over state citizenship, and states were prohibited from abridging the privileges or immunities of citizens of the United States, from depriving any person of life, liberty, or property without due process of law, and from denying any person within their jurisdiction of the equal protection of the laws. But five years later, in the infamous Slaughterhouse Cases, the Court eviscerated the Privileges or Immunities Clause, which was meant to be the principal font of substantive rights under the amendment. Thereafter the Court would gradually “incorporate” various provisions of the Bill of Rights under the less substantive Due Process Clause — an uneven and sometimes mischievous process, the Court finding “rights,” from time to time, nowhere to be found in the Constitution. That’s the “substantive due process” against which conservatives have often railed over the years, often rightly so, as part of their larger assault on “judicial activism.”

Well the Times editorialists recognize that history and recognize also that scholars have long criticized the Slaughterhouse decision. Accordingly, they call on the Court to rectify its mistake of 1873 and to base its decision in McDonald on the Privileges or Immunities Clause. If the Court did, that “would be truer to the intent of the [framers of the Fourteenth Amendment], and it could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights.”

And that, precisely, is what concerns the editorialists at the Journal. They too review the history — more fully than does the Times — but argue that the Court should ground its decision on the Fourteenth Amendment’s Due Process Clause. What they fear is that reviving the Privileges or Immunities Clause might lead to more judicial activism. But they offer no reason to believe that — which is all the more surprising since those of us who have long urged the Court to reverse Slaughterhouse and revive the Privileges or Immunities Clause have done so precisely to check that abuse.
 
As the Times rightly implies, the Due Process Clause has been the wrong clause all along for deciding most Fourteenth Amendment cases. Those cases should have been decided under the more substantive Privileges or Immunities Clause, the history of which would have better informed the Court and, accordingly, better checked the Court’s occasional activism. It’s less than clear, however, whether the editorialists at the Times appreciate that final point. Indeed, when they write, as just noted, that respecting the intent of the Fourteenth Amendment’s framers “could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights,” flags go up. But if the Court did correct its mistake, the issue would then turn on what those framers meant by “privileges or immunities of citizens of the United States.” And on that question there is a rich and fairly clear historical record, unlike with the much less definite idea of “substantive due process,” the ground recommended by the Journal’s editorialists.

It appears, in short, that the Journal’s understandable concern to check judicial activism has led it to ignore the better check and, ironically, to leave the Slaughterhouse decision, the source of the problem, uncorrected. The irony is that that decision was a paradigmatic example of judicial activism, of a Court ignoring the law. Were the Court today to perpetuate that mistake, in a case that is primed for correcting it, that would amount to one more activist decision. After all, the text is there, staring the Court in the face. Yet the Journal urges the Court to ignore it. That’s the very mark of judicial activism.
 
— Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.

03/02 03:02 PMShare

Monday, March 01, 2010

Thanks, People for the American Way!   [Ed Whelan]

In light of this post — “When The Effort To Defeat Goodwin Liu Gets Rolling, You Can Thank Ed Whelan” — I’d just like to clarify that I have not retained “Kyle” of People for the American Way to do public-relations work for me.  But I’m grateful for the plug.

03/01 04:13 PMShare

Goodwin Liu on the Death Penalty   [Ed Whelan]

On his Crime and Consequences blog, Kent Scheidegger, a California-based expert on criminal law generally and on the death penalty in particular, calls for “pull-out-the-stops opposition” to Goodwin Liu’s nomination to the Ninth Circuit: 

To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case. Adding him to the Ninth [Circuit] would take a court that is already far out of the judicial mainstream and push it even further in that direction.

03/01 02:12 PMShare

Goodwin Liu on a Federal Constitutional Right to Same-Sex Marriage   [Ed Whelan]

Given what I’ve documented about him so far (see here, here, and here), it should be no surprise that Berkeley law professor and Ninth Circuit nominee Goodwin Liu was one of 17 professors of constitutional law in California who in 2007 submitted an amicus brief to the California supreme court arguing that California’s definition of marriage as between a man and a woman violated the equal-protection guarantees of the state constitution. 

It’s worth highlighting that the mode of reasoning in that brief clearly dictates that Liu and the other amici also believe that California’s definition of marriage violates the equal-protection guarantee of the federal Constitution:  As the brief puts it (p. 3), “amici rely upon their expertise in federal constitutional law to illustrate their arguments because [the California supreme court’s] analytic methodology for interpreting the Constitution so often parallels analysis by courts construing the federal Constitution.”  In other words, the brief argues that because California’s definition of marriage violates the equal-protection guarantee of the federal Constitution, it follows that it violates the state Constitution.

Given that the anti-Prop 8 case will soon be on appeal to the Ninth Circuit, Liu’s position on this question is hardly academic.

Libertarians and others who imagine that the resolution to the whole same-sex marriage battle is to get the government out of the marriage business altogether will also find of interest that Liu’s brief takes the position that it would be unconstitutional for California to abolish the civil institution of marriage or to rebrand it with a new name (see pp. 20-22).

03/01 02:01 PMShare

Sunday, February 28, 2010

Saturday, February 27, 2010

Friday, February 26, 2010

Goodwin Liu on Constitutional Welfare Rights—Part 2   [Ed Whelan]

As shown by my Part 1 excerpts from Ninth Circuit nominee Goodwin Liu’s law-review article on “Rethinking Constitutional Welfare Rights,” Liu argues for what he calls an “interstitial” judicial role in recognizing constitutional “welfare rights” (broadly defined to include claimed affirmative rights to “education, shelter, subsistence, health care and the like, or to the money these things cost”).  Liu calls for judges to engage in “socially situated modes of reasoning that appeal … to the culturally and historically contingent meanings of particular social goods in our own society” and to “determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine.”

I promised a critique of Liu’s argument, but I confess that I’m tempted merely to say to anyone who has read the excerpts I’ve presented (or the broader article):  To those who have a sober understanding of the judicial role under the American Constitution, no further explanation is necessary.  To those who think Liu’s conception seems sober, no further explanation is possible.

But let me try anyway.  Let’s consider some basic defects in Liu’s two-pronged response to the objection that the judicial role that he advocates invites judges, in the guise of interpreting the Constitution, to impose their own values on society:

1.  The judicial role that Liu proposes—“determin[ing] … whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine”—“requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus.”  In remarkable understatement, Liu acknowledges that judicial exercise of that vast discretion is a “difficult task.” 

Liu’s only defense of conferring that vast discretion on judges is that that same task “pervades the interpretive work of courts on a wide range of constitutional questions”—namely (as he discusses on pp. 236-237), the Eighth Amendment’s prohibition of cruel and unusual punishments, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and some questions under the constitutional guarantees of freedom of speech, equal protection, and due process.  But the asserted judicial role in most or all of his examples is controversial and disputed—and fairly invites the charge that judges are just imposing their own values on society in deciding those questions.  So it’s difficult to see Liu’s response as anything other than a verbal shell game.

2.  In response to the anticipated objection that courts aren’t better situated than legislatures to express society’s values, Liu retreats to the position that the form of judicial review that he is proposing is “dialogic and provisional” and would “focus[] on the extent of legislative deliberation and democratic legitimacy supporting” the legislative judgment.  In other words (as I understand it), rather than telling a legislature, “You can’t do X,” Liu’s judges would tell the legislature, “You haven’t adequately considered and explained why you have done X, and unless and until you do, you can’t do X.” 

I agree that, in theory at least, Liu’s proposed form of judicial review is less absolutist and interventionist than the harder form (precisely because it leaves open the possibility that the legislature can ultimately do X).  But Liu’s approach would have the courts treat Congress and the state legislatures as quasi-administrative bodies, with their reasoning and deliberation subjected to probing (but ill-defined) judicial review.  Liu makes no effort to justify this radical departure from traditional separation-of-powers principles.  Nor, in practice, is there any reason to believe that courts would be spare in exercising this softer form of judicial review.  Indeed, the conceit that the judicial review is softer would invite its overuse.  At the same time, it would take little ingenuity for judges to turn it into the practical equivalent of the harder form.

3.  More broadly, Liu does not acknowledge, much less confront, the argument that irrespective of whatever one imagines to be the relative capacities of the judiciary and the legislative bodies to express society’s values, our system of representative government assigns that function, within the bounds of the Constitution, to the legislative bodies.  It would seem that Liu doesn’t acknowledge that argument because he believes that the bounds of the Constitution are ultimately indeterminate, subject to “socially situated modes of reasoning that appeal … to … culturally and historically contingent meanings.”  That’s not someone to be trusted with judicial power.

02/26 01:38 PMShare

Thursday, February 25, 2010

Ninth Circuit Nominee Goodwin Liu on Constitutional Welfare Rights—Part 1   [Ed Whelan]

In his law-review article “Rethinking Constitutional Welfare Rights,” 61 Stan. L. Rev. 203 (2008), Ninth Circuit nominee Goodwin Liu, drawing on the work of moral philosopher Michael Walzer, makes the case for what he calls an interstitial judicial role in recognizing constitutional welfare rights—i.e., “claimed affirmative rights,” as Liu quotes Frank Michelman, to “education, shelter, subsistence, health care and the like, or to the money these things cost.”  Liu tries to portray that judicial role as modest, but it is so only if compared against Michelman’s extravagant theorizing, not when compared against the proper role of the judiciary in our constitutional republic.  In this post, I’ll present Liu’s argument, and in the next post I’ll critique it.

Here’s the core of Liu’s own summary of his argument (pp. 203-204):

My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society.… I argue that judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices.

On this account, the existence of a welfare right depends on democratic instantiation in the first instance, typically in the form of a legislated program, with the judiciary generally limited to an interstitial role. Further, because the shared understandings of a given society are ultimately subject to democratic revision, courts cannot fix the existence or contours of a welfare right for all time. So conceived, justiciable [i.e., judicially cognizable] welfare rights reflect the contingent character of our society's collective judgments rather than the tidy logic of a comprehensive moral theory.

Liu addresses at some length the objection that (as he casts it (p. 247)) the judicial role that he advocates presents “an intolerable risk that judges, in the name of interpreting society’s values, will instead impose their own values on society.”  He identifies two dimensions to this objection.  The first dimension is the claim that “societal values are dynamic and contested.”  Liu’s response (p. 254):

The problem [i.e., challenge] for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus. Yet the task is familiar to common law adjudication and … pervades the interpretive work of courts on a wide range of constitutional questions.

The second dimension of the objection is the claim that “there is no reason to think that courts are better situated than legislatures to express those values.”  Liu’s defense against this objection is that he “envisions a form of judicial review that is less didactic and interventionist and more dialogic and provisional” (p. 255).  As he puts it, the role of the courts would be to “meaningfully assess the distributive reach of a welfare statute by focusing on the extent of legislative deliberation and democratic legitimacy supporting it rather than on its substantive rationality” (p. 263).  Courts would “leverage the legislature’s own publicly stated commitment to welfare provision and then inquire whether or not apparent qualifications on that commitment comprise part of the social understanding of the commitment itself” (p. 264).

In his conclusion (pp. 266-267), Liu identifies two areas in which he believes that courts can now “legitimately foster evolution of welfare rights.”  First, “the interstate discrimination in federal funding [of the education of low-income children] seems overdue for legislative reconsideration”—which (as I understand it) is Liu’s way of saying that courts should compel that legislative reconsideration by ruling, dialogically and provisionally, that the existing federal program that supplements state spending on low-income children is unconstitutional because its method of allocating federal funds has no evident purpose.  Second, courts should strike down “California’s antiquated and inequitable system of school finance” on the ground that it has “outlived its policy justification and now contributes to systemic inequity.” 

02/25 05:45 PMShare

Re: The ABA and Ninth Circuit Nominee Goodwin Liu   [Ed Whelan]

For some perspective on the ABA’s ridiculous “well qualified” rating of Ninth Circuit nominee Goodwin Liu, consider its treatment of Frank Easterbrook’s nomination to the Seventh Circuit. 

Easterbrook had been out of law school for 11 years when President Reagan first nominated him in August 1984 and for just under 12 years (the same as Liu) when Reagan renominated him in February 1985.  After a judicial clerkship, Easterbrook had spent four years in the Office of the Solicitor General, first as an Assistant to the Solicitor General, then as Deputy Solicitor General.  By the time of his nomination, he had argued 20 cases before the Supreme Court (compared to Liu’s zero—indeed, it appears that Liu has never argued a single appeal anywhere*).  Easterbrook had spent about as much time in academia as Liu by the time of his first nomination (and about a year more by the time of his renomination).

So what rating did the ABA give Easterbrook?  A mixed, and very low, “qualified/not qualified.”

* [3/1 update]  I see from Liu’s Senate questionnaire response that he did argue one case—a federal inmate’s appeal to the D.C. Circuit of the FBI’s denial of his FOIA request.  (Liu volunteered to be assigned to be pro bono counsel to the inmate.)

02/25 03:50 PMShare

Excellent Gail Heriot Essay on SCOTUSblog   [Roger Clegg]

I think she hates the “disparate impact” approach to anti-discrimination law almost as much as I do.

02/25 03:39 PMShare

The ABA and Ninth Circuit Nominee Goodwin Liu   [Ed Whelan]

According to the ABA Standing Committee on the Federal Judiciary’s explanation of its standards for rating judicial nominees, “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law.”  Further, “the Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important.”

Ninth Circuit nominee Goodwin Liu hasn’t even been out of law school for twelve years yet (he graduated from Yale law school in the late spring of 1998), and he’s only been a member of a state bar since May 1999.  His entire practice of law appear to consist of two years or so in appellate litigation, so it would appear that he has zero “trial experience as a lawyer.”  Nor, of course, does he have any experience as a trial judge.

Despite all this, the ABA committee has somehow seen fit to give Liu its highest rating of “well qualified.”  What a joke.

(I recognize, of course, that there are factors in the Committee’s explanation of its standards that might offset Liu’s woeful lack of experience and plausibly justify the Committee in stretching to give Liu a “qualified” rating.  But the “well qualified” assessment is simply ridiculous and is yet further evidence of the  political corruption of the ABA Committee.)

02/25 12:46 PMShare

George Will on the Filibuster   [Matthew J. Franck]

cites yours truly today.  If you wonder where he got the lowdown from me, see Public Discourse.

02/25 11:41 AMShare

Wednesday, February 24, 2010

Ninth Circuit Nominee Goodwin Liu   [Ed Whelan]

As expected/threatened, President Obama has nominated 39-year-old Berkeley law professor Goodwin Liu to a seat on the Ninth Circuit. 

Pending further review of Liu’s record, I’ll highlight again my summary of Liu’s demagogic testimony against Justice Alito’s confirmation:

First, his description of the issue at stake in Doe v. Groody (the immunity case involving the search of a 10-year-old) is tendentious to the point of being misleading: He claims that Alito "all but ignored" a "rule" whose application Alito openly contested. (An interview that Liu gave on Pacifica radio regarding the case was even worse. He had a screwball theory that even if Alito were correct to read the warrant to incorporate the affidavit, that wouldn’t have justified the search. Liu concealed from his listeners the unhelpful fact that the affidavit requested a search of "all occupants" of the residence and instead argued that the stated reasons for the search wouldn't have extended to the 10-year-old.) Second, while invoking O'Connor when she helps him, Liu, in criticizing Alito's 1984 DOJ memo on the "fleeing felon" rule, does not see fit to point out that O'Connor, in her dissent in Tennessee v. Garner, adopted the same position as Alito.

Liu's concluding remarks are patently demagogic and assume a constitutional scheme in which judges, and only judges, make policy on everything: Liu states that "Alito's record envisions an America" where police "may" do all sorts of things that Liu (in some instances reasonably, in others less evidently so) doesn't like. What Liu obscures is that Alito's approach would enable the political processes to establish reasonable policies on all these matters.

Liu is closely aligned with various left-wing groups.  For example, he is (or recently was) on the boards of directors of the American Constitution Society, the ACLU of Northern California, and the National Women’s Law Center.  He apparently practiced law for about two years.

Liu is co-author of an ACS book titled Keeping Faith with the Constitution.  But what Liu means by “keeping faith” is evidently adherence to the living-constitutionalist gimmick that judges can redefine the Constitution to mean whatever they want it to mean.  Here’s how Liu explains his and his co-authors’ concept of constitutional fidelity in an ACS podcast (around the 1:30 mark):  “What we mean by fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.” 

02/24 05:34 PMShare

Tuesday, February 23, 2010

Forecasting the Next Supreme Court Vacancy and Nominee   [Ed Whelan]

On SCOTUSblog, Tom Goldstein has a long and interesting post in which he forecasts that (1) Justice Stevens “very likely will retire” this spring; (2) Justice Ginsburg “definitely will not”; and (3) President Obama will nominate Elena Kagan to replace Stevens.

My own assessments differ primarily in nuance from Goldstein’s (and that may well be because he has better access to inside information than I do).  As I’ve been saying since September of last year, I believe that Stevens’s hiring of only one clerk for next term is a clear signal that he intends to resign.  One circumstance that I think could change Stevens’s plan would be if Ginsburg’s health were to lead her to resign.  Goldstein emphatically dismisses that possibility, but he’s no more of a doctor than I am, and while I have no reason to doubt Goldstein’s basic account of Ginsburg’s current intention to stay on the Court, I think that his professed certainty that health reasons won’t lead her to resign is excessive.

My own prediction is that Stevens will announce his resignation shortly after his 90th birthday, either on April 28 (after the last oral argument of the term) or on April 30 (after the Court’s conference on the last set of argued cases).

Goldstein labels Kagan the “prohibitive front runner” to replace Stevens.  I regard her as the presumptive favorite, largely for some of the reasons that Goldstein outlines, including that, unlike Diane Wood, Kagan doesn’t have a “material track record” on many issues, that she has the support of a small number of academic conservatives at Harvard, and that she will turn only 50 this year (as it happens, on April 28—one of the two days on which I expect Stevens might announce his resignation).  On the other hand, I think that Goldstein understates the strength of the case that conservatives can make against Kagan (though perhaps not as much as he overstates the supposed success of the Sotomayor nomination).  I also wonder whether there are folks on the Left who will vigorously and effectively object to the prospect of a Kagan nomination, and I wonder further whether the White House has given adequate attention to the extensive recusal obligations that Kagan would face over the next couple of years.   

02/23 04:45 PMShare

Upcoming Cert Decision in McCullen v. Coakley   [Ed Whelan]

Briefing is now complete on the certiorari petition in McCullen v. Coakley, which presents important questions whether a Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic violates the First Amendment.  The certiorari petition argues that the First Circuit’s ruling below is in conflict both with the Supreme Court’s 2000 decision in Hill v. Colorado and with rulings of numerous courts of appeals. 

Of particular interest is an amicus brief in support of the petition that was submitted by six professors of constitutional law—in alphabetical order, Lillian R. BeVier (U. Va.), Richard W. Garnett (Notre Dame), Michael Stokes Paulsen (St. Thomas), Lee J. Strang (Toledo), Eugene Volokh (UCLA), and Kevin C. Walsh (Richmond)—who state that although they “have divergent perspectives on the Court’s abortion jurisprudence, [they] agree on the importance of the First Amendment principles at stake.”  Among other things, the amicus brief argues:

1.  The First Circuit stretched Hill in a way that “threatens to multiply the damage to First Amendment jurisprudence that results when free-speech decisions track ideological divides over the subject-matter of the underlying speech.”

2.  Hill is at the center of a collapse in the coherence of free-speech doctrine.  Hill “departed from the standard First Amendment analysis of restrictions on speech in a traditional public forum.”  In particular, Hill:

“(i) obscured the distinction between content-neutral and content-based restrictions on speech;

“(ii) inverted ordinary First Amendment principles by imposing a ‘listener preclearance requirement’;

“(iii) created ‘a virtual template for developing passable government speech regulations targeted at the  expression of unpopular views in public places’;

“(iv) illustrated ‘how far the Court has allowed overbreadth to drift from its central premises’; and

“(v) recognized ‘a public “right to be let alone” [that] is in tension with literally decades of First Amendment jurisprudence.’ 

“For these reasons, among others, Hill has been condemned by both progressive and conservative scholars, including one prominent jurist [Laurence Tribe] who has described the case as ‘slam-dunk simple and slam-dunk wrong.’”

3.  Hill caused, and the First Circuit’s decision below deepened, “divisions among the lower courts over First Amendment analysis of public-forum speech restrictions.”

The cert petition is set for the Court’s March 5 conference.  This case would appear to present an important opportunity to resolve conflicts among the circuits and to re-establish the coherence of First Amendment free-speech doctrine.

02/23 02:15 PMShare

Monday, February 22, 2010

The NEH vs. the Supreme Court?   [Matthew J. Franck]

Last August, former Iowa Republican congressman Jim Leach took office as the chairman of the National Endowment for the Humanities.  What exactly were his qualifications for this post, other than being an Obamaphile Republican and thus a safely "bipartisan" appointment, was and remains a mystery.  Since his appointment, unsurprisingly, Leach has appeared to take little interest in the actual work of the NEH—support for research, publication, and education in the humanities—and instead has been gallivanting around the country on a 50-state "civility tour," giving mostly forgettable speeches (archived here—see especially those of September 17 and 29, and November 6 and 20) whose goal seems to be to get Americans to stop criticizing Barack Obama in terms that offend Chairman Leach.  Even if there were a civility deficit in our politics—a proposition entertained only by those who are both historically ignorant and politically thin-skinned—it would hardly be the proper business of the NEH chairman to embark on a Kumbaya tour.  But Leach's call for better manners is transparently partisan, an act not of civility but of servility—to the president who appointed him.

Any doubts on this score were settled by Leach's last foray, a speech on February 3 at Wayne State University Law School in Detroit.  After recycling some tired old material from past speeches, Leach spent the final two-thirds of a 5,500-word address excoriating the Supreme Court for its decision in the Citizens United case in January.  His analysis is heedless of the facts in the case, his arguments do not even address the merits of those on the other side but merely caricature them, and he accuses the justices in the majority of jeopardizing "idealism" in the country and instead choosing to "magnify public cynicism."  (Evidently Leach spoke again in this vein over the weekend at Princeton, where he was given an alumni award.)

But even if you like the stuff Leach is peddling here, what on earth does he think he is doing, making such pronouncements as the chairman of the NEH?  Is this really a perch where the White House line on the Citizens United case ought to be parroted?  Just imagine if Bruce Cole, Leach's predecessor, had decided to make "wartime harmony" a theme of his chairmanship, and had gone around the country giving speeches attacking the Supreme Court's decisions on the rights of Guantanamo detainees.  Or if Bill Bennett, chairman during Ronald Reagan's first term, had made "the glories of the market" his theme and had given speeches attacking the opponents of supply-side tax cuts.  Both would have been justly criticized—first, last, and most heatedly by the liberal media establishment, but justly nonetheless.  Leach is plainly guilty of an equivalent offense.

As the Endowment's 1965 enabling legislation declares, "the humanities belong to all the people of the United States."  The programs and expenditures of the NEH should foster "public support and confidence in the use of taxpayer funds" on the promotion of humanities study and education.  And the six-year staggered terms of the 26-member National Council on the Humanities (which advises the chairman and whose members are presidential appointees confirmed by the Senate) suggest that the Endowment is intended to be politically neutral.  I don't know how often the Council meets, but its distinguished members—some liberal, some conservative—should be able to agree that the chairman's job is not to spend taxpayer dollars on the politicization of his office, but to attend to the Endowment's grant programs, and to do so in ways that encourage scholars of all persuasions to apply for NEH support.  When they next meet, the Council members should give Leach's leash a short, sharp jerk.

02/22 08:16 AMShare

Saturday, February 20, 2010

Friday, February 19, 2010

Judge Walker’s Wild Witchhunt—Part 5   [Ed Whelan]

[See parts 1, 2, 3, and 4 of this series and Judge Walker’s Skewed Judgment]

In carrying out his insane inquiry into the subjective intentions of the more than seven million California voters who supported Proposition 8, Judge Walker authorized scorched-earth document and deposition discovery that threatens severe damage to citizen participation in voter initiatives and to the American political processes more generally. 

In addition to his peculiar assumption that the messages of Prop 8’s sponsors played some determinative role in shaping those intentions, Walker declined to give those messages their objective meaning.  Instead, he authorized the plaintiffs to obtain discovery of the private communications of Prop 8’s sponsors, including communications with their political consultants, on the theory that those communications, “even about messages contemplated but not actually disseminated, could fairly lead to admissible evidence illuminating the messages disseminated to voters” (emphasis added). 

In granting an extraordinary writ of mandamus, a Ninth Circuit panel (consisting of three Clinton appointees) ruled that Walker’s discovery order had seriously underprotected the First Amendment associational rights of Prop 8’s sponsors.  But the panel held that the broader disputes over whether it was proper at all for Walker to try to discern voters’ subjective intentions and, even if so, to look behind the actual public messages of Prop 8’s sponsors were “beyond the scope of this appeal.”  It therefore “assume[d] without deciding that the district court has decided these questions correctly.”  Further, in a curious amendment to its original opinion, the panel limited the First Amendment privilege to “communications among the core group of persons engaged in the formulation of campaign strategy and messages” (emphasis added). 

In the end, Prop 8’s individual sponsors, the ProtectMarriage.com campaign, and the members of its executive committee were required to provide to plaintiffs all records of communications relating to the formulation of campaign strategy and messages that went beyond the “core group of persons” that the magistrate judge assisting Walker designated.  Following their attorneys’ review of more than 100,000 documents (that’s documents, not the much higher number of pages of documents), they ultimately were forced to hand over many thousands of documents, including e-mails, internal strategy memos, meeting minutes, draft ads, and other confidential campaign information.  Never before has there been such a sweeping judicial invasion of core political speech rights and associational rights.

Indeed, the judicial invasion also transgressed the religious-liberty rights of religious organizations that supported Prop 8, as Judge Walker also required that church officials who were individual sponsors of Prop 8 or on the executive committee of the ProtectMarriage.com campaign make available internal church communications in their possession relating to Prop 8.

If the legal positions that Judge Walker adopted in authorizing this intrusive and burdensome (and irrelevant) discovery are accepted, they will have a severe chilling effect on citizen participation in voter initiatives.  How many citizens will volunteer for initiative campaigns if they discover that in Walker’s wacky world they may have to endure the burdens of complying with deposition and document requests (including retaining counsel), much less the risk that their private communications will be made public and be distorted or ridiculed to advance someone else’s political agenda in the courts? 

Indeed, I see no principled reason why Walker’s inquiry into subjective voter intent on initiatives wouldn’t also warrant an inquiry into subjective voter intent on election of candidates for political office.  Assume, for example, a lawsuit contending that voters in a state acted on illegitimate racial grounds in voting for (or against) Barack Obama as president.  Why wouldn’t Walker’s approach justify sweeping discovery into the internal communications of the pro-Obama (or anti-Obama) campaign on the formulation of campaign strategy and messaging?

I haven’t researched the scope of immunity that legislators have, whether in Congress or in the 50 states, from discovery requests in civil litigation, but I also see no principled reason apart from any such immunity why Walker’s exploration into the private communications of Prop 8’s sponsors would not justify a similar exploration into the private communications of legislators related to a challenged piece of legislation.  Indeed, the private communications of legislators would plainly be far more revealing of their subjective motivations as voters than the private communications of Prop 8’s sponsors are of the subjective motivations of the more than seven million Californians who voted for Prop 8.  And why should any principles of legislative immunity pose a more insuperable obstacle to judicial inquiry than did the First Amendment rights that Walker so recklessly trampled?

In sum, in indulging his evident animus against supporters of Prop 8, Judge Walker poses a severe and lasting threat to core political rights.

02/19 11:35 AMShare

Thursday, February 18, 2010

Rosen, Roberts, and Roosevelt   [Matthew J. Franck]

Ed is right that Jeffrey Rosen seems to attribute promises to Chief Justice Roberts, to sacrifice principle to consensus-building, that can't be substantiated by anything Rosen quotes Roberts as saying.  Rosen also posits some pretty dubious parallels between today's Supreme Court and the Court of the "four horsemen" of the 1930s.  So does Richard Posner in a TNR review of a new book on Franklin Roosevelt's battle with that Court.  But at least Posner thinks it "unlikely" (if "not impossible") that President Obama will take on the Roberts Court in some concrete, meaningful way—as opposed to whining in a State of the Union address.

Rosen, by contrast, seems to think such a clash could well happen.  Here's how he ends his article:

It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory. Without being confident either way, I still hope that he has enough political savvy and historical perspective to recognize and avoid the shoals ahead. There’s little doubt, however, that the success or failure of his tenure will turn on his ability to align his promises of restraint with the reality of his performance. . . .  But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well-intentioned but unrestrained chief justices overplay their hands in the past—and it always ends badly for the Court.

For the life of me, I can't figure out the "always ends badly" bit in that last sentence.  Really?  I'm not sure this has ever been really true, even once—even in cases when the judges truly were out of control.  From the perspective of the justices themselves, and of the Court as an institution, even the Dred Scott case produced only a mild, temporary setback in public esteem for the Supreme Court.  (More's the pity.)  It is the lament of pro-lifers, and friends of the Constitution more generally, that Roe v. Wade has done remarkably little damage to most Americans' regard for the Court.  Liberals predicted (or hoped) Bush v. Gore would fatally injure the reputation of the "conservatives" on the Rehnquist Court.  Didn't happen.  And as for the Hughes Court in the New Deal era, it found itself defended against FDR's court-packing plan by every major sector of opinion-makers in 1937, notably including liberals who loathed what the Court had been doing: the majority of Democratic leaders in Congress, of liberal newspaper editors, and of the legal academy.

And there's a lot of differences between 1937 and 2010 anyway, without even considering the merits of the Court's decisions in recent years.  Difference number one is that we remember 1937, when a direct assault on the Court, whatever it had to recommend it, came a cropper.  The fact that the Court changed its mind about certain legal principles, and thus "saved itself," doesn't affect that conclusion.  It's more than doubtful that the Court-packing plan would have passed in any event.  Difference number two is that Obama is not Roosevelt.  He doesn't have Roosevelt's nerve (or was it folly?), Roosevelt's popularity and dominance of his own party (as he came off a landslide reelection, after all), or a politico-economic crisis of nearly the magnitude of the Great Depression to give him cover for such a bold maneuver.  Under Obama, a far weaker and less effective leader than FDR, presiding over a country in not nearly so deep a crisis, and with popular esteem for the Court substantially unaffected by the Citizens United case, there is zero prospect of a direct confrontation between the president and the justices.  All we'll get is more talk—and more mediocrities like Justice Sotomayor when vacancies open up.

Unless Barack Obama is even dumber than we all think.

02/18 03:51 PMShare

Jeffrey Rosen vs. Chief Justice Roberts   [Ed Whelan]

In an essay in the New Republic, Jeffrey Rosen contends that Chief Justice Roberts has failed to live up to his “pledge to lead the Court toward less polarizing decisions.”  What “pledge” was that, you might fairly wonder (and how would such a pledge comport with the Chief Justice’s actual oath of office)? 

Well, it turns out that the supposed pledge is Rosen’s understanding of statements that Roberts made to him in a July 2006 interview.  I have difficulty discerning such a pledge from the many statements by Roberts that Rosen quotes in his 2007 Atlantic article that grew out of that interview.  (See Matt’s excellent post on that article.)  Rosen did paraphrase Roberts as declaring that “he would make it his priority … to discourage his colleagues from issuing separate opinions” and that “he intended to use his [opinion-assigning] power to achieve as broad a consensus as possible.”  He also quoted Roberts as stating, “In most cases, I think the narrower [the definition of legal principle,] the better” as a means of achieving consensus.  But I don’t see how these propositions have somehow transmuted into a “pledge to lead the Court toward less polarizing decisions.”

In his new article, Rosen faults Roberts for not “be[ing] as conciliatory as he promised,” and cites as the “first indications” of Roberts’s “refus[al] to budge from rigid positions in divisive cases” the soaring number of 5-4 decisions in his second term, which ended in the summer of 2007.  But consider this strange paragraph (emphasis added):

That same summer, I asked Justice John Paul Stevens whether Roberts would succeed in his goal of achieving narrow, unanimous opinions. “I don’t think so,” he replied. “I just think it takes nine people to do that. I think maybe the first few months we all leaned over backward to try to avoid writing separately.” In other words, once his first term ended, Roberts faced a choice: In cases he cared intensely about, he could compromise his principles to reach common ground or he could stick to his guns and infuriate his opponents, who would feel they had been played for dupes. On virtually all of the most divisive constitutional topics, from affirmative action to partial-birth abortion, Roberts stuck to his guns.

The first few sentences of this paragraph provide striking repudiation of Rosen’s thesis that Roberts is somehow at fault for failing to generate consensus on the Court.  Justice Stevens explains that the higher degree of unanimity during the first term resulted from the initial effort by the eight associate justices to “lean[] over backward to try to avoid writing separately.”  And he makes the obvious point that unanimity, far from being something that the Chief Justice can achieve on his own, “takes nine people.” 

But Rosen, with his “In other words” transition, fails to acknowledge that Stevens has repudiated his thesis and instead tries to give Stevens’s words a meaning that they can’t possibly bear.  Further, given the composition of the Court, it’s fanciful to imagine that “common ground” was possible on the “most divisive constitutional topics, from affirmative action to partial-birth abortion”; that’s why Rosen is right to call them “most divisive.”  (I also don’t see how the narrower holdings that Rosen proposes for the recent Citizens United campaign-finance case would have attracted votes from any of the dissenters.)  Nor is there any reason that Stevens and the other liberals should “feel they had been played for dupes” in those cases. 

The most meaningful measure of any chief justice is whether he gets the law right and whether, to the limited extent that it is within his power, he leads the Court to get the law right.  There’s ample room for fair debate on these topics.  But that debate isn’t advanced by positing imaginary pledges and by exaggerating the ability of the chief justice to forge consensus on hotly contested issues.

02/18 10:16 AMShare

Wednesday, February 17, 2010

California AG Candidate John Eastman—D.C. Event   [Ed Whelan]

My native state of California has suffered so much from attorney general Jerry Brown’s malfeasance (most prominently, in his failure to defend California’s Proposition 8 on marriage) that I am especially delighted by the news that constitutional-law scholar John Eastman has declared his candidacy for state attorney general. 

John is superbly well qualified for the position.  In addition to his position as dean of the Chapman University law school, John is the founder and director of the Center for Constitutional Jurisprudence, a public-interest law firm affiliated with the Claremont Institute.  As you’d expect from someone who both has a Ph.D. in government from the Claremont Graduate School and has clerked for Justice Thomas, John has a clear and deep understanding of the law.  He also has litigated numerous important constitutional questions.

Those of you in the D.C. area who would like to support John Eastman’s candidacy will be interested to know that former U.S. Attorney General Ed Meese, former Secretary of Education Bill Bennett and others will be hosting a reception for him next Monday, February 22, at the Capitol Hill Club.  I’m pleased to be a member of the host committee.  More details here.

And, of course, if you’re not in the D.C. area (or can’t attend the reception), you can still support John’s candidacy.

02/17 05:02 PMShare

Tuesday, February 16, 2010

Minority Rule or Aid to Deliberation?   [Matthew J. Franck]

I would never call Mike Potemra a "dummy" as one of his correspondents did the other day, but I do think he is wrong about when the filibuster is defensible and when it is not.  A couple of weeks ago at Public Discourse, I defended the filibuster as a way of forcing a willful majority to engage in deliberation with a strong minority that has something to contribute to a debate on legislation.  But here at Bench Memos, recalling the side I took in the discussion five years ago on the Democrats' use of the filibuster against judicial nominees (which I found constitutionally legitimate but morally objectionable), I suggested that the difference was that there's precious little "deliberation" going on when judicial nominees are being approved or rejected.  Of course there should be full floor debate and opportunities for senators to persuade one another, but finally there has to be a vote up or down on the president's nomination, with a simple majority deciding the outcome.

Mike, on the other hand, chiding former critics of the filibuster who now defend it with a Democrat in the White House, says not only that they should be consistent in their views, but that "the filibuster is even more valuable and necessary in the case of judicial appointments than in the case of legislation."  It may be the only way, he says, to prevent a Dawn Johnsen from getting on the Supreme Court and serving for decades.

Sorry, that's what we get for electing presidents who would make such appointments and a majority of senators who would approve them.  Five years ago, the Democrats were filibustering circuit court nominations because they understood a) that a lot of law is made on those courts in contrast to the less important but more numerous district courts, but b) the American people would not take much notice of such tactics at that level, while they would surely not tolerate a filibuster of a Supreme Court nomination.  Democrats had the votes but didn't have the nerve to do it when Samuel Alito's nomination came to the floor.  He was confirmed 58-42, a margin that made his appointment vulnerable to total obstruction by filibuster.  (Ditto Clarence Thomas, confirmed 52-48 in 1991.)

The sense of the American people strikes me as sound here.  They are not much agitated by a filibuster of ObamaCare, but would have been by a filibuster of Sonia Sotomayor's nomination.  The difference turns on the question, what is the filibuster for?  Is it a procedural maneuver to be employed for the purpose of fostering deliberation on legislative matters—with obstruction viewed as a means to the end of better legislation, even if that results (for the time being) in the utter prevention of bad legislation when it is presented?  Or is it simply a tactic of obstruction for the purpose of frustrating majority rule?  If the latter—which seems to be Mike's case for it in judicial nominations—then the filibuster introduces an element of minority rule, which is a suspect thing in a democracy even when it is a purely negative power.  There are places where such negative minority rule is deliberately established in the Constitution, but in each case it is understood as a deviation from a basic principle of justice in a democracy: that the majority, after full debate, is entitled to have its way.  Let's leave aside here the democratic credentials of the Senate, which can be defended on federalistic grounds not very fashionable today.  Take those credentials as given, however, and the filibuster looks pretty bad if our case for it is merely that we side with the minority's view of someone as a bad pick for the Supreme Court.

And for every Johnsen we want to keep off, isn't there a Thomas or Alito we want to put on the Court?

02/16 10:03 AMShare

Monday, February 15, 2010

Sunday, February 14, 2010

Saturday, February 13, 2010

Two High Court Vacancies?   [Jonathan Adler]

CNN is the latest news outlet to report that the White House is preparing for the possiblity of two Supreme Court vacancies.  ABC News had a similar report ten days ago.

02/13 02:52 PMShare

Wednesday, February 10, 2010

Tuesday, February 09, 2010

Senate Confirms Greenaway   [Jonathan Adler]

Earlier today the Senate unanimously confirmed district court judge Joseph Greenaway to the U.S. Court of Appeals for the Third Circuit. (LvHA)

02/09 08:34 PMShare

Re: Re: Let the Flak Begin   [Ramesh Ponnuru]

Matt, I think you are sufficiently correct that I withdraw my criticism.

02/09 11:43 AMShare

Monday, February 08, 2010

Elena Kagan vs. Merrick Garland   [Ed Whelan]

Today’s Wall Street Journal reports that “Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.”  Oddly, the article lumps together Solicitor General Elena Kagan and D.C. Circuit judge Merrick Garland as leading examples of “less-controversial candidates.”

In my judgment, Kagan would be very likely to arouse significant Republican opposition, far more so than Garland.  For starters, she received 31 Republican “nay” votes and only seven positive votes (with three Republican senators not voting) just last year on her confirmation to be SG.  It’s reasonable to assume that all of the senators who voted against her (except newly minted Democrat Arlen Specter and departed senator Mel Martinez) would start off strongly inclined to vote against her for the Supreme Court, and that, given the much higher bar for the Supreme Court, so would many of the other Republicans.  There’s certainly nothing that’s happened over the past year to dispel any of the concerns that were raised during Kagan’s confirmation process, including by her abject failure to engage in a meaningful discussion of legal issues. 

Kagan earned goodwill among conservatives for her deanship of Harvard Law School.  But her fair treatment of conservatives, and the broader administrative skills that she displayed, signal very little about how she would be as a justice.  At best, she is a wild card.  Most likely, she would be largely indistinguishable from Ruth Bader Ginsburg. 

By contrast, Judge Garland has earned the respect of folks across the political spectrum for his judicial craftsmanship in his 13 years on the D.C. Circuit.  Unlike Kagan, he may well be the best that conservatives could reasonably hope for from a Democratic president.  While he’s certainly no judicial conservative, he would seem to represent what I described in this Washington Post piece last year as the “once-dominant species of liberal proponents of judicial restraint,” and his nomination might well “make great strides toward ending the judicial wars.”

02/08 11:52 AMShare

Utah Events on the Transnationalist Threat   [Ed Whelan]

This coming Thursday, Feb. 11 (if the weather will have permitted me to escape from the D.C. area), I will be in Utah to speak on the threat to fundamental American principles that legal transnationalism poses (the topic of, among other things, my series of posts on Harold Koh’s nomination to be State Department legal adviser).  At noon I will speak at BYU law school (JCRB 205; lunch served), and at 3:00 I will speak at the University of Utah law school (room 105).  Each event is sponsored by the law school’s Federalist Society chapter.

And, yes, it’s no coincidence that I will be in Utah at the height of the ski season, nor is my 13-year-old son’s, er, interest in hearing me speak on this topic his primary motivator for accompanying me on the trip.

02/08 09:00 AMShare

Sunday, February 07, 2010

Judge Walker’s Skewed Judgment   [Ed Whelan]

According to this column in today’s San Francisco Chronicle, “The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.”

In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay.  It’s whether he is capable of ruling impartially.  I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case.

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.  Consider his series of controversial—and, in many instances, unprecedented—decisions: 

Take, for example, Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate.  Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality. 

Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial. 

Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors—a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees. 

Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than seven million Californians who voted in support of Prop 8. 

Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause. 

And so on. 

Walker’s entire course of conduct has only one sensible explanation:  that Walker is hellbent to use the case to advance the cause of same-sex marriage.  Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.

[Cross-posted on The Corner]

02/07 11:35 AMShare

Saturday, February 06, 2010

Friday, February 05, 2010

The Activism of "Strict Scrutiny"   [Matthew J. Franck]

My friend Carson Holloway has a characteristically thoughtful article at Public Discourse today, digging below the surface of charges and counter-charges of "judicial activism."  As Holloway notes, much of the problem can be seen in the modern doctrine of "strict scrutiny," originally invented by the liberal activists of the mid-twentieth century in order to "guide the Court to outcomes they approved on non-constitutional grounds."  Now, unfortunately, the doctrine is employed by all the justices, not just the liberal activists—as can be seen in the Citizens United case.

Does that mean Citizens United was wrongly decided?  No, not necessarily, says Holloway:

My point is that, even if Citizens United was correctly decided, the use of tests like strict scrutiny, now deeply entrenched in the Court’s jurisprudence, drive the Court into kinds of inquiries that almost inevitably make even the most sincere critics of judicial activism engage in it themselves.

I remember reading the Court's decision in the Virginia Military Institute case (U.S. v. Virginia) in 1996, and being thrilled to see Justice Scalia criticize the sort of jurisprudence that

regards this Court as free to evaluate everything under the sun by applying one of three tests: "rational basis" scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.

. . . And then being crestfallen to see him retreat from this commonsense view, back into the bunker of the Court's worst habits, in his very next paragraph:

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). . . .

Sigh.  All that was required was to grasp the nettle.

02/05 10:47 AMShare

Thursday, February 04, 2010

Upcoming Supreme Court Vacancies?   [Ed Whelan]

ABC News reports that the White House is preparing for the possibility of two Supreme Court vacancies this spring.  That would be sensible contingency planning, and I only wish that the White House would prepare as seriously for national-security contingencies.  But my own guess is that there will be one vacancy.  Specifically, my guess is that Justice Stevens will retire unless Justice Ginsburg’s health requires her to do so, in which case I think that Stevens would stick it out for another year.

One passage in the article’s discussion of leading candidates surprised me—namely, the assertion that Solicitor General Elena Kagan “is known as one of the finest constitutional scholars in the country, dazzling both liberal and conservative friends with her intellectual prowess and her ability to find consensus among ideological opposites.”  I have plenty of respect for Kagan’s intellect, but she’s written relatively little, and I don’t think that anyone regards her as being in the top tier of “constitutional scholars.”  She has earned acclaim for being an effective dean, not for “dazzling … intellectual prowess.”

02/04 12:40 PMShare

Wednesday, February 03, 2010

Washington Times Editorial Today . . .   [Roger Clegg]

. . . Focusing on tomorrow’s Senate Judiciary Committee vote on California district court nominee Edward Chen, “whose radical agenda has not been fully exposed and requires further public hearings rather than a vote.”

02/03 09:54 AMShare

Tuesday, February 02, 2010

Re: Let the Flak Begin   [Matthew J. Franck]

So far I think Mr. Sullivan has not suffered any solid hits from the flak.  Judge Wilkinson, on whom he partly relies, has come in for a lot of grief for comparing Heller to Roe.  But while he may have pushed the comparison here and there, his thesis compares the two cases on these four dimensions (quoted by Sullivan from the first page of Wilkinson's article): that like Roe, Heller evinces "an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism."  Recitations of all the ways in which Roe is (obviously) worse than Heller do not meet the argument.

And I wonder a little at the limitations Ramesh imposes on what originalism is capable of.  To the contrary, I think that originalism about the judicial function has a good deal to say about what one does when the historical record leaves a question of the Constitution's meaning ambiguous.  That is, originalism properly understood includes "a principle of restraint in hard cases."  In Heller, both Justice Scalia and Justice Stevens rely on history.  For my part, I think Justice Stevens has the better account of it, and Scalia's history is disappointingly unpersuasive.  But suppose we call it a draw, as Sullivan does.  Then, drawing upon everything we know about the founding generation's understanding of the judicial power, we would have to say that in the doubtful case the judges ought not to rule against the validity of a statute.  That strikes me as a thoroughly originalist principle.

02/02 05:31 PMShare

Re: Let the Flak Begin   [Ed Whelan]

As I’ve previously made clear, I think that Judge Wilkinson’s comparison of Heller and Roe was recklessly irresponsible (and far from the “trenchant analysis” that Gregory J. Sullivan labels it in his essay).  I’ll again call attention to the extended withering critique of Wilkinson’s argument that legal scholars Nelson Lund and David B. Kopel offer in “Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III.”  I particularly like this passage from Lund and Kopel:

Suppose that the Bill of Rights included a provision stating: “A well regulated medical system that protects women from premature death being necessary in a civilized nation, the right to abortion shall not be infringed.” Then suppose that in the late twentieth century the Supreme Court concluded that medical advances had almost eliminated the dangers of death during pregnancy and labor. Suppose further that three-quarters of the American population believed that the Abortion Clause guaranteed a broad right to abortion, and that evidence of the original public meaning of that clause overwhelmingly showed that it was understood when adopted as protecting a woman’s personal right to choose abortion over giving birth. Suppose that no jurisdiction had banned abortion until long after the Bill of Rights was adopted, and that even today only two cities and a few suburbs did so. Finally, assume that the Supreme Court had recently invalidated a complete ban on abortion in Washington, D.C., holding that the constitutional right does not disappear when the government decides that women are better off without it.

If all this were true, then we would have a close parallel between the right to arms and the right to abortion.

02/02 02:09 PMShare

Let the Flak Begin   [Ramesh Ponnuru]

Even if Heller was wrongly decided, the analogy to Roe that Sullivan borrows from Judge Wilkinson seems highly inappropriate. Heller did not announce a right as unlimited as the abortion right of Roe. It did not sweep away the laws of all fifty states. It was plausibly grounded in the constitutional text.

Sullivan suggests that Heller violated originalism, but most of his arguments against it—whether or not valid—are not originalist. Originalism by itself cannot tell a judge how to rule when "the historical record does not unambiguously point to one conclusion." Supplementing originalism with a principle of restraint in hard cases might do so, but accusing someone of wrongly violating that principle is not the same thing as accusing them of betraying originalism. The closest Sullivan comes to making an originalist argument against Heller (as opposed to the incorporation of its principle) is his reference to Wilkinson's claim that the decision was insufficiently committed to textualism. Not having read Wilkinson, I can't say how well the judge supports that claim. But by omitting any argument for the claim Sullivan has rendered his own argument unpersuasive.

02/02 12:46 PMShare

Originalism Under the Gun   [Matthew J. Franck]

At Public Discourse, Gregory J. Sullivan reflects on "The Problem with the Supreme Court Conservatives," as the Court prepares to take up the question whether to apply its Heller ruling on the Second Amendment to the states.  Sullivan will take a lot of flak on the right, but he has a really good argument about the thicket of government-by-judiciary that the conservative justices appear ready to plunge into.

02/02 07:12 AMShare

Monday, February 01, 2010

Heather Mac Donald on Same-Sex Marriage   [Ed Whelan]

On NRO today, Heather Mac Donald has an interesting essay, “Reengineering the Family.”  Here is her concluding paragraph:

The facile libertarian argument that gay marriage is a trivial matter that affects only the parties involved is astoundingly blind to the complexity of human institutions and to the web of sometimes imperceptible meanings and practices that compose them. Equally specious is the central theme in attorney Theodore Olson’s legal challenge to California’s Proposition 8: that only religious belief or animus towards gays could explain someone’s hesitation regarding gay marriage. Anyone with the slightest appreciation for the Burkean understanding of tradition will feel the disquieting burden of his ignorance in this massive act of social reengineering, even if he ultimately decides that the benefits to gays from gay marriage outweigh the risks of the unknown.

Update:  A reader makes the good point that those unfamiliar with Mac Donald should know that she describes herself as a nonbeliever and is clearly among those whose concerns about same-sex marriage don’t derive at all from “religious belief” (or from “animus towards gays”). 

02/01 01:42 PMShare

'Ending Racial Preferences'   [Roger Clegg]

That’s the title of my piece on SCOTUS blog, on what the Supreme Court needs to do.

02/01 12:09 PMShare

Sunday, January 31, 2010

Saturday, January 30, 2010

Friday, January 29, 2010

The Filibuster and Deliberation   [Matthew J. Franck]

At Public Discourse today, I write "In Defense of the Filibuster."  Bench Memos readers with long memories may recall that in this page's first few weeks in May 2005, we had a lot of discussion among Ed Whelan, Andy McCarthy, me, and others about the Democrats' use of the filibuster to block Pres. Bush's judicial nominees.  The air was full of "nuclear option," the "Gang of Seven," and so on.  I said then that while the filibuster was quite constitutional, the defense of it as a deliberative tool was unsound.  But the context of our discussions was the filibuster against judicial nominations.  And there isn't much "deliberation" going on when opponents of a judicial nominee simply deny him or her a debate and a floor vote.  For one thing, the choice is binary (yea or nay on the nomination), and there isn't much of a middle ground toward which to deliberate.  Where legislation is concerned, on the other hand, the filibuster has real value, making possible a deliberative convergence on a more reasonable outcome.

01/29 10:00 AMShare

Thursday, January 28, 2010

Supreme Court Justices and the State of the Union Address   [Ed Whelan]

Over the years, no matter who has been president, I have come to detest the State of the Union address, in part for its absurd everything-and-the-kitchen-sink policy prescriptions, in part for the endless episodes of staged applause.  I don’t know when or why the tradition developed of Supreme Court justices attending the speech, but it strikes me as a tradition worth abandoning. 

A few thoughts in connection with last night:

1.  In our system of separated powers, I think that it’s entirely proper and healthy for a president to engage in responsible criticism of a Supreme Court decision.  (And so did, among others, Abraham Lincoln.)  If there’s something seemingly impolite about offering that criticism in a State of the Union address when justices are present, I think that’s a good reason that justices should not attend.

2.  President Obama’s criticism of the Court’s recent Citizens United decision was demagogic mendacity.  (As Linda Greenhouse points out, Obama was also wrong in asserting that the decision “reversed a century of law.”)  That—not the mere fact of criticism—is what made it improper.

3.  Perhaps it would have been more politic if Justice Alito had managed to remain stone-faced during Obama’s demagoguery, but I find it encouraging and refreshing that, notwithstanding his years in D.C., he retains the capacity to be jarred by lies.  (It’s also impressive that Alito was still paying attention; Justice Ginsburg evidently fell asleep during the drone-a-thon.)

01/28 12:19 PMShare

Wednesday, January 27, 2010

Re: Re: The WSJ Gets It Wrong   [Ramesh Ponnuru]

Hadley Arkes writes that there may be circumstances in which Republicans should support candidates who do not agree with the party's views on many important issues. He has in mind especially abortion. He continues, "But those are decisions we make in prudence.  They should not spill over into affecting our understanding of what constitutes the commitments in principle that mark the character of the party." The distinction makes sense. But the resolution being debated bars party funds from going to any candidate who agrees with fewer than eight out of ten listed principles. The resolution excludes the possibility of making prudential judgments in favor of supporting some such candidates, and that exclusion is imprudent.

01/27 01:40 PMShare

Tuesday, January 26, 2010

re: re: The WSJ Gets It Wrong on a Litmus for Republicans    [Hadley Arkes]

I want to add one more thing: It would of course be plausible for the Republicans to do their own version  of what the Democrats did when they recruited pro-life Democrats:  they used those pro-lifers to help constitute a Democratic majority and put the Congress in the hands of a pro-choice, pro-abortion majority.  On the other side, pro-choice Republicans have been useful in the past in helping to put in place a pro-life Republican majority.   But those are decisions we make in prudence.  They should not spill over into affecting our understanding of what constitutes the commitments in principle that mark the character of the party.   I think we could readily argue over whether Republican candidates should share with us 7 or 8 of these items.  We may have people who share only 3 or 4.  But at least we have a measure of where they are — where they fit or don't fit — and that measure of things may be useful in reminding us just who we are.

01/26 05:47 PMShare

Begala's Cloddish Appeal   [Allison Hayward]

In an attempt, perhaps, to be "relevant," the DCCC sent out an e-mail today signed by Paul Begala. It begins:

Do you hear that pop-pop-popping sound off in the distance?

The good news is, it ain't gunfire. The bad news is, it's corporate lobbyists and their Republican lapdogs popping champagne corks and dancing on what's left of the Constitution.

They're celebrating the Supreme Court's decision to allow giant corporations to spend unlimited amounts of money to target any member of Congress who dares cross them.

It's no exaggeration to say the very foundation of our democracy will be under attack once the tidal wave of corporate money floods into campaigns on the side of Republican candidates.

In truth, the Court confronted the question of whether corporate money for political speech is just as protected as corporate money spent on speech contained in art, commerce, or education. And while I believe that is the only defensible course to take, I would remind people that we may not be able to predict how, or even weather, the decision changes the balance of power in D.C., or in state campaigns.

Is this the most outrageous claim post-Citizens United?  Sadly, no.  One reform group insists that Citizens United will allow foreign money to buy campaigns.  Which it won't, but in the dust cloud of hysteria currently clogging the air, who's checking?

 — Allison Hayward teaches election law at George Mason University.

01/26 05:14 PMShare

Re: The WSJ Gets It Wrong   [Ramesh Ponnuru]

National Review recently editorialized on this matter ("The Week," Dec. 21):

Ronald Reagan is said to have told his staff that “the person who agrees with you 80 percent of the time is a friend and an ally, not a 20 percent traitor.” Some conservative activists have decided that it is time to add a corollary to Reagan’s dictum: Thirty percent traitors should be run out of the Republican party. These activists have devised a list of ten principles, and want the Republican National Committee to adopt a rule barring party funds from going to any candidate who agrees with fewer than eight of them. We agree with the activists’ principles, but not their tactics. The Arlen Specters of the Republican party have been a declining force within it for decades (which helps explain why Specter himself left). They had little to do with the party’s recent troubles, and they are not one of the most important obstacles to its resurgence. We have backed conservative primary challengers against the Specters when, in our judgment, doing so would pull Congress to the right. It cannot possibly serve that purpose to adopt a blanket rule that the RNC cannot spend a dollar to replace a Democrat who agrees with us 10 percent of the time with a Republican who agrees with us 60 percent of the time.

01/26 02:11 PMShare

The WSJ Gets It Wrong on a Litmus for Republicans   [Hadley Arkes]

The late Frank Sheed wanted every morning, with his breakfast, a papal bull to impart conviction and momentum to the day. For more than 30 years the same effect has come for me through the editorials of the Wall Street Journal. Among the major newspapers, there is surely no editorial staff more politically savvy, or one with better practical judgment. But this morning, the editors fell into a rare but telling mistake: They lambasted the proposal by the Republican National Committee to adopt a set of minimal principles, as offered by James Bopp Jr.

Bopp has distinguished himself for years in the pro-life movement and won some telling cases before the Supreme Court, resisting controls on campaign funding and political speech. Bopp has offered a list of ten items — not principles, but particulars — that can furnish a minimal test of whether a prospective candidate stands, with any credibility, with Republicans in a conservative party. As the Journal noted, the list includes: “support for smaller government and lower taxes, troop surges in Iraq and Afghanistan, the Defense of Marriage Act, containing Iran and North Korea, and gun rights; as well as opposition to ObamaCare, cap-and-trade legislation, ‘amnesty’ for immigrants, union card check and government-funded abortion.”

Bopp has suggested that a prospective candidate should hold to at least eight of these items in order to stand honestly and coherently with Republicans. The concern of the editors at the Journal is that the imposition of a litmus test comes at precisely the wrong time: After the election in Massachusetts, Republicans are suddenly competitive again in all parts of the country, including New England and New York. This is the time for a bigger tent, they argue, the time to invite in more voters without quibbling over the finer grain of principles.

But what the editors don’t seem to appreciate is that the list already contains vast accommodations in prudence, avoiding any firm test on the principles at the core of the matter. Take the matter of banning public funding of abortion: Even people who are firmly pro-choice have been willing to support that position — as indeed Scott Brown is. They support that position while leaving wholly unchallenged the claim of a right to end the life of a child in the womb at any time for any reason. They simply hold that abortion is a private liberty, not a public good to be funded with monies drawn by law from the public. If even the father of the child has no standing in making the decision, why should the public at large be implicated in this business and compelled to pay for abortions?

On the matter of marriage, the list would seek only the support for the Defense of Marriage Act (DOMA) — once again, a position that Scott Brown has no trouble affirming. The Defense of Marriage Act simply establishes that the meaning of “marriage” in the federal code refers only to the legal union of a man and woman, known as “husband” and “wife.” It also bolsters the authority of states refusing to recognize same-sex marriages performed in other states. That act, as simple as it is, offers a hard nut to crack for any group that would try to establish same-sex marriage as a national policy. But one could hold to DOMA while leaving undecided the question of whether one would vote for a constitutional amendment to preserve traditional marriage against the willingness of the courts to strike it down. While Scott Brown opposed same-sex marriage in Massachusetts, he supported the right of the people of Massachusetts to vote on that matter for their own constitution, and he has held to a federalist line, declining to support a federal constitutional amendment on marriage.

It could be argued that the real problem with the list offered by Bopp is that it does not get to the core of real principles. There is no attempt, for example, to discern the reasons some candidates to prefer a free economy to a command-and-control economy, and we are simply reminded that people may end up taking the same position while their motives spring from principles that are strikingly different.

And while the items on the list do not represent principles, they are telling. In our current politics, it is President Obama and his party who show the most passionate determination to repeal the Defense of Marriage Act. Those who support DOMA are more likely to support other measures to defend traditional marriage, just as those who reject the public funding of abortion are more likely than others to support a chain of limited, precise moves to restrict certain kinds of abortion or to resist the efforts of the federal government to promote abortions on a vaster scale.

We can quibble over items in the list of ten, but they already have built into them the kinds of prudential accommodations that provide ample room for disagreement, even disagreements running back to the root of things. But at the same time, the list offers the public a crisp account of what Republicans are about. Yes, support may be lost at times because certain voters are put off by the look of rigidity. But that apparently rigidity may also be read as Republicans’ having the nerve to define their own character, to tell us honestly who they are. If nothing else, it is truth in advertising.

And yet it is more than that: It is a serious effort by a political party to impart to the public a better-defined sense of what makes it coherent as a party, with a principled perspective on political life. What has not been fully understood about parties is that they may offer us an understanding of the regime itself: The need to reconcile the interests of groups in a coalition begets the need to settle on the principles that keep those interests aligned in a stable way. As a party does that, it offers a sense of the ends that may be rightly — or wrongly — pursued with the uses of the law.

And at the time same, it shapes our understanding of the rightful distribution of power: the arrangement of constitutional powers that is compatible with a “government by consent” and the most prudent for people in this particular place. This is not the kind of work done by any other associations in our political life. It is the work distinctly of parties. And whether or not it is now done deftly by Jim Bopp and the Republicans, it is work rightly aimed.

01/26 01:07 PMShare