Friday, November 20, 2009

David Hamilton’s Yes to “Allah” and No to “Jesus”   [Ed Whelan]

In Newsweek, Dahlia Lithwick contends that Newt Gingrich “was factually true but hopelessly misleading” when he said that David Hamilton, President Obama’s recently confirmed pick for the Seventh Circuit, had ruled that “saying the words Jesus Christ in a prayer is a sign of inappropriate behavior, but saying Allah would be OK.”  But it’s Lithwick who is doing the misleading, as she omits from her quotations from Hamilton’s order the brief passages that amply warrant the concern of Gingrich and other critics that Hamilton was engaging in an act of politically correct favoritism of Islam over Christianity in the public square. 

Specifically, as I detailed in my initial post on the matter, Hamilton, in responding to a query from the Speaker of the Indiana House of Representatives whether “a Muslim imam may offer a prayer addressed to ‘Allah,’” wrote that he saw “little risk that the choice of language would advance a particular religion or disparage others.”  Hamilton’s position that such a prayer would be nonsectarian makes little sense, for the reasons I explained.

Lithwick also asserts that Hamilton’s ruling was “right as a matter of law,” but there is nothing in what she fairly labels the “crazy quilt of Establishment Clause doctrine” that justifies that assertion.

11/20 10:46 AMShare

Thursday, November 19, 2009

Hamilton Confirmed   [Ed Whelan]

By a 59-39 vote, the Senate has confirmed President Obama’s controversial (see here, here, here, here, and here) nomination of David Hamilton to the Seventh Circuit.  The only Republican to vote in favor of Hamilton was Richard Lugar of Hamilton’s home state of Indiana.

11/19 04:04 PMShare

Masquerading as a Judge   [Ed Whelan]

In another brazen abuse of his judicial office, Ninth Circuit judge Stephen Reinhardt yesterday purported to issue an order requiring the Office of the Federal Defender for the Central District of California to make an award of back pay to a deputy federal public defender who was not permitted to enroll his same-sex spouse as a beneficiary of his health-care plan.  One of the many problems with Reinhardt’s order is that there was no case before him in his judicial capacity.  Reinhardt was acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders.  So why, pray tell, is he permitted to disguise his administrative misdetermination as a Ninth Circuit judicial order (designated “for publication” in the Federal Reporter, no less!)? 

See Matt’s February 2009 post for more on this type of shenanigans (including chief judge Alex Kozinski’s similar escapade).

11/19 12:15 PMShare

Wednesday, November 18, 2009

Joan Biskupic’s Biography of Justice Scalia—Part 4   [Ed Whelan]

It’s true, as I put it in my Part 1 post, that Joan Biskupic’s American Original is “in many places more evenhanded than I expected.”  But my expectations were low, and Biskupic’s book is decidedly, if sometimes subtly, stacked against Scalia.

One set of examples consists of Biskupic’s rhetoric.  Time after time, Biskupic tells us that Scalia has “fervent” views (e.g., pp. 107, 149, 196) or a “fervidly argued position” (p. 196).  He has an “authoritarian instinct” and an “authoritarian bent” (pp. 51, 64) that supposedly explains his views on executive power (but that would be difficult to reconcile with his position that the Constitution leaves the vast bulk of policy issues to the people to decide).  His academic success “led him to feel superior” (p. 26), and he “exuded … the belief that if he did it, it was right” (p. 36).  His jurisprudential limits on judicial discretion apparently grew out of a “fixation on rules” (p. 26).  What in another justice would be admirable evidence of consistency over a career is instead proof that Scalia is “an unflinching, unyielding justice”  (p. 153).  And so on.

Then there are Biskupic’s misrepresentations of Scalia’s positions.  Beyond those I outlined in Parts 2 and 3, I’ll call attention to a couple of more here.

Biskupic contends (pp. 97-98) that Scalia’s testimony at his Supreme Court confirmation hearing about the libel case of Tavoulareas v. Washington Post “implicitly contradicted how much the case had mattered to him at the time and continued to matter.”  But Biskupic clips Scalia’s testimony to omit his primary point that the case “is the one case, one of very few cases, I can’t talk about because it’s still before our court on petition for rehearing.”  (Hearing transcript, p. 96.)  She seems to think that it’s somehow damning that Scalia clarified that he wasn’t the author of the opinion in the case but instead joined the opinion.  But Scalia’s clarification was an appropriate response to a question that asserted (in context that Biskupic doesn’t provide) that Scalia “ruled against the press” in the case—as though the ruling might have been entirely his.  It’s simply ridiculous for Biskupic to contend that Scalia was misportraying his role in the case when he was in fact stating clearly that he couldn’t discuss the case. 

Summarizing Scalia’s position on the Establishment Clause, Biskupic asserts, “When it came right down to it, he believed almost no government action would violate the Establishment Clause, short of outright coercing religious participation” (p. 139).  But in his dissent in Lee v. Weisman (1992), Scalia expressly accepts that

our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington … down to the present day, has, with a few aberrations, ruled out of order government sponsored endorsement of religion — even when no legal coercion is present, and indeed even when no ersatz, “peer pressure” psycho coercion is present — where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world, are known to differ (for example, the divinity of Christ).  [Emphasis added; internal citation omitted.]

The third respect in which Biskupic stacks the deck is the profligate attention that she gives critics of Scalia, whether or not their criticisms make any sense.  The starkest example here is the 2-1/2 pages (pp. 203-205) that she gives law professor Geoffrey Stone’s “painfully awkward observation” that all five justices in the majority in the 2007 partial-birth ruling (Gonzales v. Carhart) were Catholic. 

I certainly don’t mean to contend that Biskupic shouldn’t pay attention to Scalia’s critics, nor do I dispute that even feeble critiques may reasonably bear on political controversy over Scalia, but Biskupic’s incessant resort to critics frequently seems her way of bolstering her charges against Scalia on the basis of the critics’ supposed authority rather than on the basis of reasoned argument.

11/18 01:08 PMShare

Joan Biskupic’s Biography of Justice Scalia—Part 3   [Ed Whelan]

In the prologue (p. 9) of American Original, Joan Biskupic presents the rhetorical questions that she says “go[] to the heart of Scalia’s legacy”: 

Is his brand of originalism simply a way to achieve conservative results?  Does he talk a good game until his method fails to get him what he wants as a policy matter?

Biskupic’s bottom-line answer to these questions is yes—e.g., “Scalia could not separate his constitutional views from the core of his identity, which was decidedly Catholic” (p. 210)—but her answer rests heavily on makeshift evidence.

Let’s consider first the supposedly “gotcha” anecdote (pp. 8-9) in Biskupic’s prologue that surrounds her rhetorical questions.  At a 2008 Federalist Society convention, the “last question” to Scalia was how he reconciles his positions in United States v. Lopez (1995) (where he voted “to overturn a federal law that regulated guns near schools because it trampled on state authority”) and Gonzales v. Raich (2005) (where he “voted to uphold a federal drug law that voided a California policy allowing marijuana use for medical purposes”).  Biskupic points out that Justice O’Connor, in her dissent in Raich, had labeled the results in Lopez and Raich to be “irreconcilable,” and she says that legal analysts three years later were still “buzzing over whether Scalia abandoned his abhorrence of federal intervention simply because he opposed the legalization of marijuana.”  She finds it especially telling that Scalia chose not to engage the question but instead requested another one.

The trusting reader might imagine that Scalia can’t reconcile his positions in the two cases and would be surprised to learn that Scalia wrote a separate concurring opinion in Raich that addresses precisely that matter.  (Even in her endnote (p. 365 n. 9), Biskupic refers only to the majority opinion and the O’Connor and Thomas dissents.)  It would of course be fair game to examine and contest the arguments in that concurring opinion, but Biskupic doesn’t even acknowledge their existence.  Had she done so, her reliance on Scalia’s declining to answer the question would be revealed to be as ridiculous as it is.  (There are, of course, innocuous reasons why Scalia would have disfavored this “last question.”  He might, for example, have regarded the matter as too intricate for a brief off-the-cuff response.)

Although she seems not to realize it, Biskupic herself provides compelling evidence that Scalia’s constitutional positions don’t align with his religious or policy views.  According to Biskupic (p. 196), Scalia holds “fervent views consistent with his religious beliefs” about “the moral issue of whether women should have abortions and the policy issue of whether laws should permit or forbid that choice.”  It ought to be particularly striking, then, that Scalia does not read the Constitution to bar permissive abortion laws.  He does not seek, in other words, to entrench in the Constitution his “fervent views.”  Instead, he believes that the Constitution leaves policy decisions on abortion to the legislative processes, where the people, through their elected representatives, can determine whether or not to regulate abortion.  (I developed this general point more fully in my NRO essay “Abortion and Justice:  Let’s hope John Roberts is a genuine moderate.”)

To bolster her confused case, Biskupic resorts to more misrepresentations of Scalia’s positions.  She claims, for example, that Scalia has said that “legal views are ‘inevitably affected by moral and theological perceptions’” and insinuates that he believes that it’s proper for a judge to indulge those “moral and theological perceptions” (p. 210).  But in the very speech that she purports to quote (published as “Morality, Pragmatism, and the Legal Order,” 9 Harv. J. L. Pub. Policy 123 (1986)), Scalia distinguishes at the outset between a judge’s “doing justice” by “deciding the rights of litigants before me in accordance with the laws as they are written” and society’s “moral beliefs” about justice.  (Biskupic’s quote is also a misquote, as her excerpt comes from Scalia’s statement that “the value that one [in society] places upon competing goods—sexual pleasure versus economic security, or avoidance of pain versus preservation of human life—is inevitably affected by moral and theological perceptions.”)

(See also Parts 1 and 2.)

11/18 11:34 AMShare

Tuesday, November 17, 2009

Joan Biskupic’s Biography of Justice Scalia—Part 2   [Ed Whelan]

Justice Scalia’s influence derives heavily from his promotion of the interpretive methodology of “original meaning,” which holds that the various provisions of the Constitution are to be interpreted in accordance with the public meaning they bore at the time they were promulgated.  Joan Biskupic of course recognizes the central importance of Scalia’s originalism (as her title American Original indicates).  But her book does not present clearly what Scalia’s original-meaning methodology is, nor the arguments that Scalia has made on its behalf.  (If she draws at all on Scalia’s A Matter of Interpretation, I missed it.) 

In her prologue (p. 4), Biskupic describes Scalia’s originalism as “insisting that judges should render constitutional decisions based on the eighteenth-century understanding of the text” and contrasts it with Chief Justice Earl Warren’s “interpret[ing] the Constitution to contain broad principles that could be applied to modern circumstances.”  The trusting reader is left to puzzle over how, say, the post-Civil War Amendments could be construed “based on the eighteenth-century understanding of the text” and to infer mistakenly that the Constitution, under an originalist interpretation, can’t “be applied to modern circumstances.”  The real divide between originalism and the misnamed “living Constitution”—over the breadth of play that the Constitution gives to the democratic processes to adapt policies to new conditions—is left obscure.

Similarly, in her next foray (p. 87), Biskupic recites the cliché that proponents of the “living Constitution” believe that “it evolve[s] to fit the needs of a society in every era,” while the originalist’s Constitution is “fixed by its eighteenth-century perspective.”   Biskupic doesn’t take note of the inconvenient fact that the Supreme Court’s invention of new rights that entrench the current elite’s policy preferences deprives future generations of the very adaptability that living constitutionalists claim they favor, whereas the originalist’s refusal to invent those new rights preserves that adaptability. 

A bit later (p. 125), we’re told that Justice “Brennan’s approach—tied to the ‘essential dignity and worth of an individual’”—was “worlds apart” from Scalia’s.  The reader might naturally imagine that Scalia’s approach is opposed to the “essential dignity and worth of an individual,” when in fact the real difference between Brennan and Scalia relates to whether justices have freewheeling authority to impose their own subjective views of which policies advance that goal.

And so on.

I don’t mean to contend that an alert reader might not be able to find some passages—including some quotes from Scalia (e.g., pp. 117-118)—that give a better sense of what his originalism is.  But Biskupic doesn’t make the task an easy one.

11/17 04:33 PMShare

Joan Biskupic’s Biography of Justice Scalia—Part 1   [Ed Whelan]

I’ve read through USA Today reporter Joan Biskupic’s new biography of Justice Scalia, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia.  In this and a few additional posts, I’ll offer my comments on the book. 

Disclosure:  As I assume regular Bench Memos readers know, and as clicking my name above will readily reveal, I had the privilege of serving as a law clerk to Justice Scalia.  (I clerked during the October 1991 Term.)

American Original has 16 chapters.  The first four are the most purely biographical, tracing Scalia’s life from his birth in Trenton, New Jersey, in 1936 to his appointment to the D.C. Circuit in 1982.  Chapters 5 and 6 cover his service on the D.C. Circuit and his nomination to the Supreme Court.  The remaining ten chapters cover various aspects of his tenure on the Supreme Court, largely (if somewhat loosely) by the subject matter of cases (e.g., race, abortion, homosexuality, Bush v. Gore).

Biskupic succeeded in securing Scalia’s cooperation on her book project.  She interviewed him a dozen times, and as she puts it, he “was generous with his time and candor, and he encouraged colleagues, friends, and relatives to talk to me.”  (p. 413)

My overall take on American Original is decidedly mixed.  On the positive side:  The book is well written, much more so than I expected from my occasional encounters with Biskupic’s reporting.  It is also in many places more evenhanded than I expected.  And I found the first four chapters particularly interesting.

I’ll flesh out the negative side in my posts to come, but here’s an overview:  Consistent with her reductionist depiction of judging as politics, Biskupic does not engage well with Scalia’s ideas about judging.  In particular, I doubt that any reader will come away from the book understanding what Scalia’s original-meaning methodology is, much less his stated reasons for believing that it’s the correct interpretive methodology.  Far from grappling with Scalia’s jurisprudential ideas, Biskupic resorts to flawed and simplistic accounts.  Worse, she misrepresents Scalia’s positions and statements on a variety of matters—always to his detriment.  In sum, although she may well have, as she says (p. 415), “worked hard to be both fair to him and true to the readers of this book,” she has fallen well short of those goals.

11/17 10:50 AMShare

Monday, November 16, 2009

Re: President Obama's Nominations Pace   [Jonathan Adler]

My own take on President Obama's slow pace of nominations can be found on the VC here.

11/16 10:22 PMShare

Re: Summary Reversal of Ninth Circuit Judge Reinhardt   [Ed Whelan]

A few follow-up points to my earlier post (as well as thanks to the reader who called them to my attention):

1.  As Jack Dunphy highlights on The Corner, the unanimous Supreme Court in Wong v. Belmontes states that it “simply cannot comprehend the assertion by the Court of Appeals [opinion of Judge Reinhardt, joined by Judge Paez] that this case did not involve ‘needless suffering’”: 

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes.  The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night.  McConnell suffered, and it was clearly needless.  [Internal citations omitted.]

2.  The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.”  Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.”

3.  Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

11/16 04:20 PMShare

Summary Reversal of Ninth Circuit Judge Reinhardt   [Ed Whelan]

In a unanimous per curiam opinion today in Wong v. Belmontes, the Supreme Court summarily reversed the ruling by a divided Ninth Circuit panel that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial.  The Ninth Circuit opinion was written by arch-activist Judge Stephen Reinhardt and was joined by Judge Richard Paez.  In dissent was Judge Diarmuid O’Scannlain.

As Orin Kerr on the Volokh Conspiracy points out, that’s the third time in this same case that the Supreme Court has reversed or vacated a ruling by Reinhardt.  (Each ruling was joined by Paez and was over O’Scannlain’s dissent.)

Ever defiant of the Supreme Court as he makes his wayward rulings, Reinhardt has declared, “They can’t catch them all.”  He’s undoubtedly right about that, but at least the justices haven’t given up.

11/16 12:43 PMShare

Re: President Obama’s Nominations Pace   [Ed Whelan]

On FindLaw, Senator Hatch responds to a recent op-ed by law professor Carl Tobias that faulted Senate Republicans for obstructing President Obama’s judicial nominees.

11/16 12:10 PMShare

President Obama’s Nominations Pace   [Ed Whelan]

Sunday’s New York Times has an interesting article on the relatively slow pace of judicial nominations by President Obama—relative, that is, to the first-year pace of President George W. Bush:

Mr. Bush … had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts.

Fairly or not, it appears that recently departed White House deputy counsel Cassandra Butts—a longtime friend of President Obama—has borne the brunt of blame for the delays.  Butts has just become senior adviser to the Millennium Challenge Corporation—not what many folks would regard as a lateral move, much less a promotion.

I do find Obama’s slow pace surprising (and am quoted as saying so in the article).  But while it’s understandable that Obama supporters are concerned by the slow pace, it’s worth highlighting that President Clinton had made only five appellate nominations by roughly this point in his first year (1993)—but that he ended up appointing a full 16 appellate judges during his second year (1994).  Clinton’s total of 19 appellate appointees during his first two years slightly exceeded Bush’s total of 17 during his first two years.

The Senate Judiciary Committee, under chairman Leahy, is certainly doing its best to fill the pipeline quickly:  This week, it will hold its ninth hearing on a federal appellate nominee.  By contrast, the committee under chairman Leahy held a grand total of eight hearings on federal appellate nominees during the combined final two years of the Bush administration.  (The contrast is even starker in light of the fact that there were no nominees in the pipeline at the beginning of the year—all of the hearings have occurred since April—and given all the time and attention consumed by the Sotomayor hearing.)

11/16 10:30 AMShare

Saturday, November 14, 2009

Friday, November 13, 2009

Vote on Hamilton Next Week?   [Jonathan Adler]

Senate Majority Leader Harry Reid has filed a cloture motion on the nomination of David Hamilton to the U.S. Court of Appeals for the Seventh Circuit.  This means the Senate could vote to end debate on Hamilton's nomination next week.

11/13 09:28 AMShare

Thursday, November 12, 2009

Tuesday, November 10, 2009

Monday, November 09, 2009

Senate Confirms Davis   [Jonathan Adler]

The Senate confirmed Judge Andre Davis to the U.S. Court of Appeals for the Fourth Circuit today by a vote of 72-16.  As David Ingram reports on BLT,

The seat that Davis will fill has been vacant since 2000, when Judge Francis Murnaghan Jr. of Baltimore died. President Bill Clinton nominated Davis for the seat, but the choice came near the end of Clinton’s second term and it languished in the Senate. Then, Senate Democrats blocked President George W. Bush’s attempts to fill the seat, most recently with Maryland’s U.S. Attorney Rod Rosenstein. . . .

With Rosenstein’s nomination, Democrats countered that he did not have strong enough ties to Maryland. Though he had been an assistant U.S. attorney in Maryland from 1997 to 2001, he worked most of his career in Washington for the U.S. Justice Department and is a native Pennsylvanian.

11/09 10:58 PMShare

Re: Supreme Court Slams Sixth Circuit Panel   [Jonathan Adler]

Ed — The Supreme Court might not be done with the Sixth Circuit.  It has two more habeas cases from the Sixth Circuit this term. Like the decision overturned today, each was "pro-defendant."  Another thing all three cases have in common: Judges Martin and Moore were on the panel.

11/09 10:55 PMShare

Supreme Court Slams Sixth Circuit Panel   [Ed Whelan]

Today, the Supreme Court, in a summary disposition (that is, without seeing any need for briefing on the merits or oral argument), unanimously reversed a Sixth Circuit panel decision that ruled that a capital defendant, Van Hook, did not receive effective assistance of counsel during the sentencing phase of his capital trial.  The Court didn’t think the question a close one:  “[W]e think it clear that Van Hook’s attorneys met the constitutional standard of competence under the correct standard.”  Its reversal puts an emphatic end to what would seem to be a rogue panel’s series of judicial frolics.

No one familiar with the Sixth Circuit will be surprised that the panel at issue consisted of Carter appointees Boyce F. Martin Jr. and Gilbert S. Merritt Jr. and Clinton appointee Karen Nelson Moore.  As the Supreme Court opinion explains, in 2006 the Sixth Circuit panel reversed a district court decision denying habeas relief to Van Hook, only to have the en banc Sixth Circuit vacate its ruling (by an 8-7 vote on a very polarized court).  On remand, the panel in 2008 then came up with other grounds to grant habeas relief, only to have the en banc Sixth Circuit again vacate its ruling.  (I haven’t found these rulings online.)  In March 2009, the panel issued the ruling that the Court today reversed.

11/09 04:12 PMShare

Justice Alito on the ABA   [Ed Whelan]

The American Bar Association’s pursuit of its ideological agenda is all the more obnoxious because the ABA purports to be “the national representative of the legal profession.”  I’m pleased to see that Justice Alito, in a concurring opinion today (see last page here) involving the relevance of ABA guidelines to the question whether an attorney provided effective assistance of counsel, rejects the ABA’s nonsense:

The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership. The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole.

11/09 03:18 PMShare

Ideological Diversity in the Media   [Ed Whelan]

Princeton University’s Program in Law and Public Affairs is sponsoring a panel discussion this Wednesday (yes, Veterans Day) titled “Full Court Press:  The Supreme Court, the Media and Public Understanding.” I’m amused to see that the four panelists—Emily Bazelon, Adam Liptak, Dahlia Lithwick, and Jeffrey Toobin—all come from the same sliver of the ideological spectrum. By noting this, I don’t mean to denigrate any of the panelists, each of whom, individually, is a reasonable selection for the panel. But the ensemble hardly seems well designed to generate meaningful debate over why, as the program’s press release puts it, “public knowledge of the justices and the impact of the judiciary remains fairly foggy.”

Somehow I suspect that more time will be spent puzzling over why the public refuses to embrace the canard that the Supreme Court is “fundamentally conservative” than over the detrimental effects of ideological groupthink among Supreme Court reporters.

11/09 10:30 AMShare

Saturday, November 07, 2009

Friday, November 06, 2009

Slim Pickings from the Federal Appellate Courts    [Ed Whelan]

If, as I expect, President Obama is presented with another Supreme Court vacancy next year, one prominent pool of potential candidates consists of sitting federal appellate judges.  (Since Justice Alito replaced Justice O’Connor in 2006, the Court has been composed entirely of justices who have had previous service on the federal courts of appeals—a historic first.)  As it happens, the set of sitting federal appellate judges who will be 60 or younger next year and who were appointed by a Democratic president is not large.

Fourteen of President Clinton’s appointees were born in 1950 or later (and none after 1954):

            R. Guy Cole Jr. (1951)

            Merrick B. Garland (1952)

            Roger L. Gregory* (1953)

            Robert H. Henry (1953)

            Robert A. Katzmann (1953)

            M. Margaret McKeown (1951)

            Johnnie B. Rawlinson (1952)

            Barry G. Silverman (1951)

            Carl E. Stewart (1950)

            Richard C. Tallman (1953)

            Sidney R. Thomas (1953)

            Kim McLane Wardlaw (1954)

            Charles R. Wilson (1954)

            Diane P. Wood (1950)

Of these 14, I’d be surprised if more than three or four would make the White House’s initial long list of candidates to consider seriously.  (Wood is one who would likely be on that list—though she’d be a politically perilous pick—but I’ll refrain from offering my speculation as to the other two or three.)

The one federal appellate judge whom Obama has so far appointed, Gerard E. Lynch, was born in 1951.

(I’ve drawn my data from the Federal Judicial Center’s Biographical Directory of Federal Judges.  If I’ve made any mistakes, please let me know.)

* Clinton recess-appointed Gregory to a temporary position on the Fourth Circuit, and President George W. Bush, in an unrequited act of goodwill, later appointed Gregory to a lifetime seat.

11/06 02:14 PMShare

Thursday, November 05, 2009

Short Memories   [Jonathan Adler]

The AP takes a skeptical eye to Democratic claims that Republicans are engaged in unprecedented obstruction of judicial nominees.

Ten months into Barack Obama's presidency, Democrats are accusing Republicans of creating "a dark mark on the Senate" by delaying confirmation of his federal court nominees.

The mark might not be as dark as Democrats make it seem.

Of the 27 judicial nominations Obama has made so far, all five brought up for votes in the Senate have won relatively quick confirmations, including new Supreme Court Justice Sonia Sotomayor.

The report notes that Dem complaints center around two nominees, and that Senate Majority Leader HArry Reid has yet to try and bring either to the floor for a vote.

11/05 08:40 AMShare

Wednesday, November 04, 2009

Two NC Judges Nominated to Fourth Circuit   [Jonathan Adler]

Today President Obama nominated two state court judges from North Carolina — Albert Diaz and James Wynn — to the U.S. Court of Appeals for the Fourth Circuit.  BLT reports here, and the official White House release is here.

11/04 11:04 PMShare

D.C. Conference on School Choice   [Ed Whelan]

Next Monday, November 9, the American Center for School Choice will hold its inaugural conference, “School Choice and the American Family:  A Moral and Civic Imperative,” at the National Press Club in Washington, D.C.  I will be moderating a panel titled “School Choice and the Law:  Precedents and Prospects.”  The panel will feature a presentation by the eminent constitutional-law scholar Jesse H. Choper, with commentary by Villanova law professor Patrick M. Brennan and University of San Diego law professor Frank R. Kemerer.

11/04 05:13 PMShare

Election Fallout for Next Supreme Court Vacancy   [Ed Whelan]

At her confirmation hearing this past July, now-Justice Sonia Sotomayor exasperated and disgusted many of her supporters on the Left by attempting to disguise herself as a judicial conservative.  In a recent event in which we both took part, SCOTUSblog’s Tom Goldstein stated emphatically that he was reliably informed that the White House, at the highest levels, determined in advance that it wanted Sotomayor to testify precisely as she did.  I fully credit Goldstein’s account.

If (as appears very, very likely) President Obama will have another Supreme Court vacancy to fill next summer, the Left will be pushing for the next nominee to be an ardent advocate of the progressive vision of constitutional decisionmaking.  But even apart from the fact that Sotomayor’s testimony already set a benchmark that raises the political costs of such a nomination, yesterday’s election results would seem to make it much less likely that the Left will get its wish.  If the White House, near the peak of Obama’s popularity, chose to try to play things safe by casting Sotomayor as a judicial conservative, how probable is it that the White House would take a more aggressive approach in advance of the 2010 midterm elections, which now look markedly more threatening to Democrats than they previously did? 

[Cross-posted on The Corner]

11/04 01:03 PMShare

Tuesday, November 03, 2009

Supreme Court “Too Liberal”   [Ed Whelan]

Amidst the usual media blather about our supposedly “conservative” Supreme Court, a new poll from Rasmussen Reports indicates that 36% of Americans—more precisely, of likely voters—consider the Supreme Court “too liberal,” compared to only 20% who consider it “too conservative” (and 35% who think it’s “about right”).

Also, 70% of Americans think that the Supreme Court should “make decisions based on what’s written in the Constitution and legal precedents,” versus 25% who think that it should “be guided mostly by a sense of fairness and justice.”  So much for President Obama’s lawless “empathy” standard.

11/03 10:25 AMShare

Monday, November 02, 2009

Pitt and Duquesne Events   [Ed Whelan]

I’ll be in Pittsburgh this Thursday, November 5, for two events in which I’ll discuss lessons of the Sotomayor confirmation process.

The first event is at Pitt law school from 1:00 to 2:00 (in room 113).  I’m grateful that Pitt law professor Arthur Hellman, a scholar of the federal courts, will offer commentary on my presentation.  Lunch will be provided. 

From 4:30 to 5:30, I’ll be at Duquesne law school (room 204).  Duquesne law professor Robert S. Barker, whose scholarly interests include constitutional law, has kindly agreed to offer commentary.  Free food will be served.  (More information here.)

The events are sponsored by the respective law school chapters of the Federalist Society.

11/02 10:16 AMShare

The Trial Lawyers’ Latest Target: Mutual Funds   [Paul Schott Stevens ]

Federal judges are usually, well, judicious in choosing their words. So the rebuke that a panel of judges from the U.S. Second Circuit of Appeals aimed at the plaintiffs’ bar in a recent decision was, in judicial terms, sharp and stinging. “We cannot help but observe that the Complaints filed in this case are strikingly similar to prior claims brought—including one in this Circuit—by Plaintiffs’ counsel, all of which have been dismissed.” The panel tossed out the case in question, but that hasn’t stopped contingency-fee lawyers from bringing more suits.Today, these lawyers will have their day before the U.S. Supreme Court—and if they win, the real losers will be American investors.

What burning issue is attracting these swarms of trial lawyers? It’s the fees that portfolio managers and advisors charge for running mutual funds. It’s hard to see any injustice: Overall, the cost of investing a dollar in a mutual fund has fallen by around 60 percent over the last 30 years. Yet mutual fund fee litigation is growing. In some years, cases involving funds represent almost 10 percent of all U.S. federal securities class actions. Overall, according to Securities Litigation Report, more than 500 private class actions and derivative suits have been filed against mutual fund advisers.

The case of Jones v. Harris Associates L.P. is the trial bar’s best shot yet at turning the mutual-fund industry into a contingency-fee bonanza.

In 1940 and 1970, Congress gave the task of negotiating mutual-fund advisory fees to funds’ independent directors—trustees who are unaffiliated with the fund adviser and charged with a fiduciary duty to represent fund shareholders. The Supreme Court has recognized these trustees as “independent watchdogs” for shareholder interests. And the Second Circuit set the standard for how judges should consider claims that fees are excessive, including a requirement that a court give considerable weight to the judgment of the independent directors, in the 1982 case of Gartenberg v. Merrill Lynch.

The plaintiffs’ bar wants to gut this precedent, inviting contingency-fee lawyers to file annual lawsuits to drag each fund’s fee decisions in front of a federal judge. The results could be higher costs for funds, fewer advisers in the fund business, and less choice for investors.

How do the trial lawyers justify this legal attack? First, they insist that there is no competition in the fund industry, as demonstrated by the fact that fund boards rarely fire advisors. But that misses the point. The real competition is for investor dollars, and investors hire and fire fund managers every day. With more than 8,000 funds to choose among, investors can move their money with a couple of phone calls or a few clicks of the mouse—and they do. Each year from 1990 to 2008, between 25 percent and 70 percent of fund advisers experienced net cash outflow.

The contingency-fee lawyers also point to the gap between fees that advisers charge mutual funds and the generally lower fees they charge such institutional clients as pension funds. The two fees should be identical, the plaintiffs say. But the services, capital commitments, risks, and regulations involved in serving these two classes of clients are worlds apart. With an average mutual fund account balance of $26,000; an adviser must gain and service more than 1,500 fund accounts just to match the $41 million average balance of an institutional account.

But facts like these have rarely stood in the litigators’ way. In 2006, a commission headed by Brookings Institution Chairman John Thornton and Columbia Business School Dean Glenn Hubbard warned that the unique American institution of class action suits in securities law resulted in $150 million of liabilities in 1995. “(B)y 2004, this had exploded to $3.5 billion.” A commission headed by Senator Charles Schumer (D., N.Y.) and New York Mayor Michael Bloomberg warned in 2007 that the U.S. must “reduce spurious and meritless litigation and eliminate the perception of arbitrary justice.”

We can only hope that judges are taking note. One small but hopeful sign is the slap that the Second Circuit gave to a mutual fund fee case similar to Jones. One member of the judges on that panel was Sonia Sotomayor, now the newest member of the Supreme Court. Let’s hope that the high court recognizes that if the trial lawyers win, it’s investors who will get stung.

 — Paul Schott Stevens is president and CEO of the Investment Company Institute, the national trade association for mutual funds and other registered investment companies.

11/02 09:00 AMShare

Saturday, October 31, 2009

Friday, October 30, 2009

Stuart Taylor on Harold Koh’s Threat to Free Speech   [Ed Whelan]

Stuart Taylor’s latest column, “Troubling Signals on Free Speech” (available here for a week or so), calls attention to various threats to free speech, including “a little-publicized October 2 resolution in which [Hillary] Clinton’s own State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive.”  Taylor sketches how “doctrines developed by legal academics including Obama appointee Harold Koh, the State Department’s top lawyer,” could lead to erosion of cherished First Amendment free-speech rights.  (Taylor also correctly notes that Koh, in his confirmation testimony, didn’t squarely acknowledge the “clear meaning” of his writings on this issue.)

My own series on Koh’s transnationalist threat is available here (with additional related posts here).

[Cross-posted on The Corner]

10/30 02:57 PMShare

Obama Judicial Nominee Louis B. Butler Jr.   [Ed Whelan]

One month ago, President Obama nominated former Wisconsin supreme court justice—and This Day honoree—Louis B. Butler Jr. to a district judgeship in the Western District of Wisconsin.  Never mind that Butler, in his short tenure on the state supreme court, had proven himself a leading member of what the Wall Street Journal’s John Fund aptly called “the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices.”  Never mind that Wisconsin’s voters—yes, Wisconsin’s voters—in April 2008 took the extraordinary step of defeating Butler’s bid to remain on the state supreme court.

Additional material on Butler’s record (material that I haven’t yet reviewed) is available here, here, and here.

10/30 02:25 PMShare

More on Doug Kendall’s Illusion   [Ed Whelan]

A follow-up to these posts:  Doug Kendall has a further reply that, apart from tendentiously mis-summarizing the exchange to date, makes a couple of other points that I can’t pass up responding to.

First, Kendall thinks it meaningful to state that my “proposed metric of time from first nomination to confirmation,” while “a fair metric to use from the nominee’s perspective,” “does not comport well with Senate rules.”  His observation is a silly irrelevance.  Would he really not have made his complaints about delay if Senate Republicans had caused the then-pending nominations to be sent back to the White House over the August recess (thus requiring renominations by President Obama)?  Would he withdraw those complaints if Republicans were to do so over the next recess?  Isn’t it plain that what Kendall calls the “nominee’s perspective” is also the perspective of the White House—and of anyone trying to make a serious comparison of delays?

Second, Kendall somehow twists his flagrant misuse of renominated candidates into a contention that I’m inaccurately comparing “how two Congresses performed on the judicial nominations front.”  I haven’t been comparing any “two Congresses” at all.  I’ve been discussing how Bush 43 nominees fared versus Obama nominees.  It’s Kendall who’s been making the comparison that he now labels “really inaccurate.” 

10/30 01:51 PMShare

Thursday, October 29, 2009

Senate Judiciary Committee Approves One More Nominee [CORRECTED]   [Jonathan Adler]

Legal Times' BLT reports that the Senate Judiciary Committee favorably reported the nomination of Justice Barbara Keenan to the U.S. Court of Appeals for the Fourth Circuit today without opposition.  Ranking minority member Senator Jeff Sessions called Keenan, currently serving as a justice on the Supreme Court of Virginia, a "fine nominee."  The committee also favorably reported two U.S. attorney nominees, also without opposition. 

[As originally posted, I mistakenly wrote that the Judiciary Committee had approved two district court nominees.]

10/29 05:16 PMShare

Re: Doug Kendall’s Illusion   [Ed Whelan]

Doug Kendall has offered a response to my critique of his Slate essay alleging a supposedly “new form of obstructionism” of judicial nominees.  I’ll largely rest with my original critique and will simply reiterate two points and add a third: 

1.  The sensible benchmark for comparing delay of judicial nominees is overall time from nomination to final Senate action. 

2.  According to a Congressional Research Service report (dated May 6, 2009), the average number of days from first nomination to final Senate action for confirmed Bush 43 nominees was 350 days for federal appellate nominees and 179 days for district-court nominees.  (For unconfirmed nominees, the average number of days from first nomination to final Senate action was 663 days for federal appellate nominees and 393 days for district-court nominees.) 

3.  Let’s consider, by contrast, the duration of the Obama nominations that Kendall finds so troublesome.  And have in mind that the Judiciary Committee was consumed for much of the summer with the Sotomayor nomination, and that the August recess also took place.  First, the confirmed nominees:

Gerard Lynch (Second Circuit)—168 days

Roberto Lange—105 days

Jeffrey Viken—96 days

Irene Berger—111 days

Now the pending nominees (with the count as of today):

David Hamilton (Seventh Circuit)—226 days

Andre Davis (Fourth Circuit)—210 days

Beverly Martin (Eleventh Circuit)—132 days

Joseph Greenaway (Third Circuit)—132 days

Edward Chen—84 days

Jacqueline Nguyen—90 days

Dolly Gee—84 days

Richard Seeborg—84 days

In other words, we have another four months or so before Hamilton and Davis will have reached the average for confirmed Bush 43 appellate nominees, more than seven months before Martin and Greenaway will have, and a good three months before the district-court nominees will have reached the average for confirmed Bush 43 district nominees.

(If I’ve made any mistakes in my quick calculations, please let me know.)

10/29 11:11 AMShare

Tuesday, October 27, 2009

Brown, Plessy, Whatever   [Ed Whelan]

Given Justice Scalia’s longstanding position (set forth, among other places, in this New Yorker interview) that the Court in Brown v. Board of Education reached the right result, I was surprised to see this summary of a newspaper article contending that Scalia recently stated that he would have dissented in Brown.  Well, apparently he actually stated that he would have joined Justice Harlan’s dissent in Plessy v. Ferguson—in other words, the exact opposite of the position that the newspaper imputed to him.  (I haven’t reviewed the video myself, but that’s what someone who has done so tells me, and that’s also what Yale law professor Jack Balkin—no admirer of Scalia’s jurisprudence—says.)  

My own sketch of the originalist case for the result (not the reasoning) in Brown is here.

[Cross-posted on The Corner]

10/27 04:00 PMShare

Doug Kendall’s Illusion   [Ed Whelan]

I was surprised to read Doug Kendall’s piece yesterday on Slate contending that Senate Republicans have developed a “new form of obstructionism” of judicial nominees and “are prepared to take the partisan war over the courts into uncharted territory.”  Could it really be, I wondered, that Senate Democrats, who resorted to the massive and unprecedented series of partisan filibusters against Bush 43 judicial nominees and who even took the extraordinary measure of returning unconfirmed nominees to the White House during intrasession recesses, had somehow left some terrain of procedural obstruction unexplored? 

Well, it turns out that the answer is no.

Kendall’s argument, in brief, is that the “new form of obstructionism” engaged in by Senate Republicans is “delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president’s judicial nominees.”  But this is exactly the practice that Senate Democrats engaged in on Bush nominees:  by routinely insisting on roll-call votes (rather than proceeding by unanimous consent), Senate Democrats required the same time-consuming process that Kendall now decries. 

According to information I’ve received from a reliable Senate staffer, in the 50 years before Bush 43, only 63 of the nearly two thousand confirmations of lower-court judges involved a roll-call vote.  In the Bush 43 years, the Senate confirmed 191 lower-court judges by roll-call vote, and 166 of those (around 87%) were unanimous.  In other words, Senate Democrats required roll-call votes—and the attendant negotiations over what Kendall labels “precious floor time”—on lots of nominees that were so “uncontroversial” that not a single Democrat voted against them.  And this process took a lot of time:  according to a Congressional Research Service report (which may or may not be accessible here), the average number of days from first nomination to final Senate action for confirmed Bush 43 nominees was 350 days for federal appellate nominees and 179 days for district-court nominees.  (The comparable figures for Clinton nominees were 238 days and 136 days, respectively.)

Kendall’s leading item of evidence in support of his contention that things are now different is that in 2007 and 2008 the Senate “voted on more than one-third of Bush’s confirmed nominees (26 of 68) less than three months after the president nominated them.”  But Kendall’s data is woefully flawed and misleading. 

First, a full 15 of the 26 nominees whom Kendall claims were confirmed “less than three months after the president nominated them” had in fact merely been renominated by President Bush in January 2007.  If one looks to their earlier, original nomination dates, then the time to confirmation is much longer:  14 months for two of the nominees, 8 or 9 months for eight nominees, and 6 or 7 months for the other five.  In short, these 15 nominees undercut rather than support Kendall’s case.

Second, the remaining 11 nominees who actually were confirmed less than three months after President Bush nominated them include folks like Sixth Circuit nominee Helene White, who is Democratic senator Carl Levin’s former cousin-in-law and who had been nominated to the same court by President Clinton; district-court nominee Stephen Murphy, who was part of the deal that the White House struck with Democrats over Helene White (and who two years before his confirmation had been nominated to the Sixth Circuit); and, in instances of evident outright White House capitulation to Democratic senators, Democratic supporters like Anthony Trenga, Mary Scriven, and former Clinton nominee Christine Arguello.  It’s hardly a surprise that Senate Democrats moved these nominees fast, and you can be sure that Senate Republicans would likewise move quickly on any comparable picks by President Obama (not that there will be any). 

There’s a lot more that’s contorted about Kendall’s argument.  For example, his contention that Obama nominees Andre Davis and David Hamilton “have spent longer in this particular form of limbo”—i.e., the period between Judiciary Committee vote and floor action—“than any Bush nominee confirmed from 2007-08” obscures more than it enlightens.  The sensible benchmark for comparison is overall time from nomination to final Senate action.  The various stages of that process will, not surprisingly, vary in duration depending on the particular political configuration.  For example, in 2007 and 2008, Democrats had control of the Senate and made a practice of giving hearings only to those Bush 43 nominees to whom they intended to give the green light, so it’s not remarkable that the time from committee action to floor vote was relatively short (and the time from nomination to committee hearing relatively long).  By contrast, the Senate Judiciary Committee is now scheduling hearings and committee votes for President Obama’s nominees very rapidly (sometimes before Republicans even have a fair opportunity to review the record), so Republicans resort to the post-committee stage to ensure thorough review.

And then, of course, there’s Kendall’s suggestion that Hamilton should be deemed uncontroversial merely because he has the support of Richard Lugar, the Republican senator from Indiana (who also supports Dawn Johnsen’s OLC nomination and who ran interference for State Department legal adviser Harold Koh).  Home-state senators have lots of bad reasons for supporting nominees (as former Florida senator Connie Mack’s support of President Clinton’s nomination of Rosemary Barkett to the Eleventh Circuit starkly illustrates).  Hamilton’s controversial record—which I’ve discussed in several posts, including here, here, here, here, and here—belies any positive inferences that might be drawn from Lugar’s support.

At bottom, Senate Republicans, far from developing a “new form of obstructionism,” are deploying only a portion of the arsenal that Democrats used against Bush 43 nominees.  And while it’s theoretically possible that Republican leader Mitch McConnell is playing harder hardball on negotiating floor votes for “uncontroversial” nominees than his Democratic predecessors did, Kendall offers no meaningful evidence in support of that proposition.

10/27 03:23 PMShare

Monday, October 26, 2009

Gay Talese   [Kathryn Jean Lopez]

gets a taste of John Roberts.

10/26 06:50 PMShare

Eric Holder’s Pretense   [Ed Whelan]

Attorney General Eric Holder recently explained that the Obama administration was taking so long to nominate United States Attorneys because, in supposed contrast to the George W. Bush administration, it was looking so hard for the “best people”—“people who are highly qualified, who understand what immense power they will be given as United States attorneys, who understand that they are to enforce the law in an impartial, nonpolitical way.”  That explanation seems difficult to reconcile with—to cite one example that a reader has brought to my attention—President Obama’s nomination of Nicholas Klinefeldt to be U.S. Attorney for the Southern District of Iowa. 

Klinefeldt’s professional qualifications hardly render him “highly qualified”:  He’s an associate at a Des Moines law firm and all of 35 years old.  He’s tried one federal criminal case and three to five small-claims matters.

What is most clearly “highly qualified” about Klinefeldt are his political connections:  counsel for the Iowa Democratic Party from fall 2006 to March 2009 (the latter date presumably being the time he applied to become U.S. Attorney); state counsel to the 2008 Obama presidential campaign; and formerly a staff assistant to Senator Tom Harkin and field organizer for one of Harkin’s re-election campaigns.  (I’ve drawn this information from this MainJustice.com page (registration required).)

My point is not to contend that there is anything exceptional about Klinefeldt’s nomination.  As I wrote about some of the hysteria over President Bush’s dismissal of U.S. Attorneys:

No one (especially no one on the Hill) should be surprised, much less scandalized, that political favorites get political appointments.  That’s true in every Administration. 

My point instead is to take issue with Holder’s pretense that Obama’s DOJ is supposedly above politics (and to blame nomination delays on that fiction).  Unfortunately, the opposite appears to be the case.  There’s already plenty of disturbing evidence, as Jennifer Rubin summed it up in her recent Weekly Standard essay, giving rise to “a growing concern that the Obama administration is politicizing the department in ways the Bush team never imagined.”

10/26 03:11 PMShare

The Latest Dubious Judicial Nomination from the Obama Administration   [Roger Clegg]

The Washington Times editorialized yesterday against the nomination of Edward Chen to the Northern California federal district court.

10/26 07:59 AMShare

Sunday, October 25, 2009

Friday, October 23, 2009

OLC Nominee Dawn Johnsen and Pre-Confirmation Etiquette   [Ed Whelan]

The controversial nomination of Dawn Johnsen to Office of Legal Counsel at the Department of Justice seems to be going nowhere.  But from what I hear from reliable sources, Johnsen has been involving herself in OLC’s decisions on hiring junior lawyers.  If those reports are accurate, Johnsen’s actions would seem a serious violation of the Senate’s understanding of pre-confirmation etiquette—an etiquette that is especially punctilious for nominees who have generated controversy—and would give senators additional reason to oppose her nomination. 

10/23 08:21 AMShare

Thursday, October 22, 2009

Stevens to Retire?   [Kathryn Jean Lopez]

From AP Court Tweet feed:

Stevens may be thinking about retiring next year. By the end of June, he'll trail only William Douglas, who served 36 yrs, 6 mos, 26 days.

...

As of Sat, Justice Stevens has 5th longest tenure on Supreme Court, passing John Marshall Harlan's 33 yrs, 10 mos, 4 days - Mark Sherman

10/22 12:03 PMShare

Wednesday, October 21, 2009

Tuesday, October 20, 2009

Re: Tokin' Federalism   [Matthew J. Franck]

Jonathan Adler's response to my original post makes two points and I'll take them each in turn.

1.  Jonathan takes the Obama administration's announcement of nonenforcement of the marijuana laws in the medical-marijuana states as analogous to 27 U.S.C. 122, under which "it is against federal law to transport alcoholic beverages into a state in violation of state law."  I don't think the two cases are parallel at all.  The law Jonathan cites is one in which Congress has fashioned federal law deliberately to vary according to applicable state law on the same question (and this particular example is a direct legislative implementation of the terms of Section 2 of the 21st Amendment).  By contrast, the Controlled Substances Act under which marijuana possession and distribution are criminalized is intended by its terms to have uniform meaning and application nationwide.  There's a large difference between Congress conforming federal policy to diverse state laws, and Congress establishing uniform policy notwithstanding diverse state laws, only to have the executive announce that it plans to frustrate that statutory uniformity wherever states have chosen to legislate opposing policies—an announcement that runs contrary to the supremacy principle of the Constitution.

2.  I have trouble buying the "it's just prosecutorial discretion" line of argument.  Yes, the exercise of such discretion need not be totally ad hoc and case by case, but might be usefully guided by sound public policy choices.  But to be truly prosecutorial discretion (not thinly disguised legislating), those policy choices ought to be keyed to truly prosecutorial considerations.  Enforcement resources matter, as do considerations of the magnitude or triviality of harms.  The prospect of bringing victorious prosecutions is no small consideration as well.  There are 14 states legalizing some medical use of marijuana, and 36 states not doing so.  I have difficulty believing that resources to prosecute, or the magnitude of harm, or the prospects of success in prosecution, weigh more heavily against the choice to prosecute in the 14 states than in the 36.  It is impossible not to notice that the only decisive difference between the two prosecutorial environments is that in one set of states the legislatures have decided to pass laws that are concededly trumped by contrary federal law under the supremacy principle.  And precisely where federal law has been challenged—and vindicated four years ago by the Supreme Court—the Obama administration has decided to cave.

Postscript: An alert reader reminds me that the equal protection clause, by its terms, does not apply to the federal government.  This is true, and on my own more alert days I have been known to point this out.  But the principle of equal protection has long been held (rightly or wrongly) to bind the federal government no less than the states.

10/20 09:45 PMShare

Re: Tokin' Federalism   [Jonathan Adler]

I think Matthew's legal and constitutional concerns about the Obama Administration's new policy concerning medical marijuana to be misplaced. 

First, it is not at all uncommon for the legality of conduct under federal law to be dependent upon state law.  To take the most obvious example, under 27 U.S.C. 122, it is against federal law to transport alcoholic beverages into a state in violation of state law.  Therefore, under federal law, it is legal to something in one place but not another because of differences in state law. The purpose of such laws is to allow states to adopt laws that reflect local preferences while simultaneously protecting states from the spillover effects of their neighbors' choices.  So, in the case of alcohol, the post-prohibition policy was to say: State A can legalize alcohol if they like, but the federal government will not allow State A to become a source of illegal alcohol for State B, in which alcohol is still prohibited.  This sort of law makes perfect sense within our federal system.  Indeed, such federal laws are preferable to federal efforts to create uniformity on divisive questions of social policy.

Second, it is also not anomolous or particularly unusual for the federal government to announce a policy of declining to prosecute to the full extent possible under given laws or statutes.  The federal government lacks the resources to pursue all acts prohibited by federal law, so choices must be made.  In some cases, it makes sense to base those chocies on broader policy judgments than ad hoc, case-by-case determinations.  This is particularly common in the regulatory context.  A given regulatory statute may, on its face, apply to thousands of instances of a given conduct.  But the relevant enforcement agency, seeking to focus its efforts where they wil do the most good, may announce a policy of focusing its efforts on those instances where there are real harms.  So, for instance, in the environmental context, the EPA may announce it will prioritize regulatory violations that result in measurable amounts of environmental contamination, and generally ignore paperwork violations.  This doesn't make such conduct legal, as the agency in question inevitably reserves the right to prosecute any violation — as the Justice Department has here — but it does provide greater predictability, which is an important rule of law concern.

For more of my thoughts on the Obama Administration's announcement, see here and here.

10/20 05:35 PMShare

Tokin' Federalism   [Matthew J. Franck]

I can't quite get my head around the NR editors' mixed reaction to the Obama Justice Department's decision to cease "prosecuting medical-marijuana users and distributors who are acting in accord with state laws."  My reaction to it is quite unmixed: I think it's a terrible idea.  Apart from any questions regarding the medical utility of marijuana, or the matter of the drug's prohibition more generally—on which I disagree with NR's long-stated position but have no claim to know much—I think there is a constitutional anomaly lurking in the Obama administration's choice here.

By announcing the non-prosecution of marijuana cases only in those 14 states that legalize some use of the drug for medical purposes, the administration has effectively proclaimed that federal law means one thing in those 14 states, and something else in the other 36.  That could readily give rise to equal protection claims in the 36 states where the federal government still considers itself free to prosecute.  I don't think they'd be frivolous claims.  This is not, properly speaking, a matter of prosecutorial discretion, but an announced public policy choice about the applicability of a criminal statute in some places but not others.

Worse, by conditioning the prospect of prosecution on the presence or absence of state laws that contradict a nationwide federal prohibition, the Justice Department has effectively subjected the validity of federal law to the will of state legislators.  This turns one of the most important principles of the Constitution—the supremacy principle expressed in Article VI—on its head.  It's not up to the states to be flipping switches that turn federal statutes on and off within their jurisdictions.  In the 2005 Gonzales v. Raich case, the Supreme Court decided that federal prosecutions were still lawful in California in cases where the defendants were acting in accord with the state's medical marijuana law, and even in cases where no "interstate" transaction had occurred.  Some conservatives didn't like the ruling (I do not include myself among that number), but I wonder if any of them considered that a contrary outcome in the Raich case would have looked an awful lot like what the Obama administration has now done—establishing a patchwork of enforcement here and nonenforcement there, with federal law inferior to state law.  That isn't remotely like the federalism the Framers created.

If this is a prelude to relaxation of federal marijuana prosecution nationwide, I wouldn't be at all surprised.  But the way to do that is to go to Congress with a proposal to change the law.  This way evinces Professor Obama's usual respect for the Constitution: he rolls his own.

10/20 04:33 PMShare

Friday, October 16, 2009

Thursday, October 15, 2009

Wednesday, October 14, 2009

Re: Protestants Losing the Diversity Game for Supreme Court Justices?   [Ed Whelan]

As a follow-up to my recent post on possible clamoring for the next Supreme Court nominee to be a Protestant, I’ll highlight this passage from Adam Liptak’s “Supreme Court Memo” in last Friday’s New York Times:

Justice O’Connor was asked about the lack of geographical diversity on the court, and she answered with a surprising non sequitur.

“I don’t think they should all be of one faith,” she said, “and I don’t think they should all be from one state.”

With the addition of Justice Sotomayor, there are now six Roman Catholics on the court. Justices Ruth Bader Ginsburg and Stephen G. Breyer are Jewish. Not so long ago, there was casual talk of a “Jewish seat” and a “Catholic seat” on the court.

“Now we have a single ‘Protestant seat,’” said Jeffrey A. Segal, who teaches political science at the State University of New York at Stony Brook. “It belongs to John Paul Stevens, and he is 89.”

10/14 10:33 AMShare

Tuesday, October 13, 2009

Northwestern, Notre Dame, Stanford, and Boalt Events   [Ed Whelan]

I have a flurry of events at law schools over the coming week, each sponsored by the law school’s chapter of the Federalist Society.

On Thursday, October 15, at 4:30, I’ll be at Northwestern law school to discuss lessons from the Sotomayor confirmation process. 

On Friday, October 16, at 12:30, I’ll discuss the same topic at Notre Dame law school (Eck Hall of Law, room 3130).  Notre Dame law professor Mark McKenna will offer his commentary.

On Monday, October 19, at 12:35, I’ll be at Stanford law school to debate the topic of judicial activism with Tom Goldstein (who, in addition to his Supreme Court practice and his work at SCOTUSblog, teaches Supreme Court litigation at Stanford). 

On Tuesday, October 20, at 12:45, I’ll discuss lessons from the Sotomayor confirmation process at Boalt law school (UC Berkeley).  I’ll be on a panel with Boalt law professors Jesse Choper and Melissa Murray.

During the intervening weekend, I’m looking forward to attending the USC-Notre Dame game in South Bend.

10/13 10:04 AMShare

Sunday, October 11, 2009

Saturday, October 10, 2009

Friday, October 09, 2009

Instead of Pres. Obama's Nobel Acceptance,   [Matthew J. Franck]

I'd rather watch Justice Clarence Thomas give a speech about the greatness of Abraham Lincoln.  Fortunately, Justice Thomas gave a wonderful speech on just that subject two weeks ago at Washington and Lee University—and in the Lee Chapel no less.  (Think about that: Justice Thomas praising President Lincoln in a chapel named for General Lee in Virginia.  A nice moment.)

I was there for the speech, which was truly riveting, and kicked off a superb conference devoted to Lincoln, with panels the next day featuring distinguished Lincoln scholars.  It was all organized by Professor Lucas Morel of Washington and Lee.  To my friend Lucas I say, get all those excellent papers together into a book, and use Justice Thomas's speech as the introduction.  I'd buy it!

10/09 06:20 PMShare

Thursday, October 08, 2009

Protestants Losing the Diversity Game for Supreme Court Justices?   [Ed Whelan]

I very much share Chief Justice Roberts’s sentiment that “divvying us up by race” is a “sordid business,” and I have the same reaction to divvying us up by religion.  That said, given how widely played the diversity game is, it’s worth noting that there are often clear winners and losers by the standards of that game.

I was reminded of this point by some interesting and provocative comments that Texas law professor Sandy Levinson made last week in an event that we both took part in at Harvard Law School.  Complaining that the “Supreme Court right now is spectacularly undiverse,” Levinson noted the Court’s dominance by graduates of Ivy League law schools, by Easterners, and by former federal courts of appeals judges.  He then added:

There’s one last point, incidentally, about diversity. It is certainly a fascinating factoid that there is no practicing Protestant on the current United States Supreme Court. And I, if I had a ranch, I think I would bet it against the probability that the next nominee will be Catholic. And, you know, one doesn’t like to talk about these things publicly, but you know, it is a remarkable change in our lifetime with regard to the demographic composition of the Supreme Court. And whether or not the president is under any pressure to appoint a male to succeed John Paul Stevens, it does seem to me that he would be well advised to look for somebody who can make a plausible claim to being a Protestant.

(The audio recording of the event is available here.  Levinson’s discussion of the Court’s lack of diversity can be found at around the 3/4 mark of the recording (which doesn’t have a minute-and-second tracker).) 

Will the usual devotees of the diversity game clamor for the next Supreme Court nominee to be a “practicing Protestant” (or even “somebody who can make a plausible claim to being a Protestant”)?  Somehow I doubt it.

10/08 04:47 PMShare

Tuesday, October 06, 2009

Can Mush Be “Dismantled”?   [Ed Whelan]

According to this USA Today article, former justice Sandra Day O’Connor “says she regrets that some of her decisions ‘are being dismantled’ by the current Supreme Court.”  But O’Connor was notorious for rulings that failed to set forth any clear principles, and I don’t see how a decision can be “dismantled” without its ever having been meaningfully assembled in the first place. 

The article claims specifically that since O’Connor’s retirement the Court has “retreated from some rulings in which she crafted consensus, including on abortion rights, campaign finance and government race-based policies.”  I’m not clear what “consensus” O’Connor crafted in these areas.  The sharply divided 5-4 decisions in Planned Parenthood v. Casey and Stenberg v. Carhart would hardly seem to reflect any grand “consensus” on abortion.  Perhaps someone can discern a consensus in the Court’s major campaign-finance ruling in McConnell v. FEC, but the Court’s own summary of positions suggests otherwise:

Stevens and O'Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II-A, and II-B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined.

And the cross-cutting 5-4 and 6-3 decisions in Grutter v. Bollinger and Gratz v. Bollinger, respectively, also fail to suggest a consensus in the area of racial preferences.

As for the Court’s supposed retreat:  The Court’s sound exercise of judicial restraint in its 2007 ruling on partial-birth abortion in Gonzales v. Carhart amounts to an effective reversal of its decision in Stenberg, but the basic Roe regime, as modified by Casey’s highly subjective “undue burden” standard, remains, alas, in effect.  It’s true that the as-applied ruling in FEC v. Wisconsin Right to Life narrows the scope of McConnell, and the pending Citizens United case may do so as well, but it’s far from clear that McConnell itself was faithful to previous precedents.  And the Court’s recent rulings on racial preferences haven’t touched on the law-school and college admissions policies that were at issue in Grutter and Gratz.

More broadly, O’Connor’s ad hoc decisionmaking was inherently unclear and unstable, so there’s no reason that she or anyone else should imagine that there should be such a thing as an O’Connor judicial legacy.

10/06 01:26 PMShare

Cass Sunstein’s “Zombie Constitution”   [Ed Whelan]

In Policy Review, Steven Menashi, an Olin/Searle fellow at Georgetown law school, offers a withering critique of law professor (and current OIRA head) Cass Sunstein’s new book A Constitution of Many Minds:  Why the Founding Document Doesn’t Mean What It Meant Before.  Here’s Menashi’s closing paragraph:

The whole project of A Constitution of Many Minds turns out to be much ado about a pretty simple point. Sunstein starts with the idea that constitutional interpretation involves judgments about “political morality.” So as not to make those judgments seem entirely baseless and subjective, he gives his hypothetical judge a lifeline: He can “ask the audience” what the correct answer is and the Condorcet Jury Theorem says it will probably be correct. So Sunstein replaces the ideas of the 18th-century American Founders with the idea of an 18th-century French mathematician. But how does one even apply Condorcet’s theorem in this context? What does it mean to say that a member of the public has a greater than 50 percent chance of having the correct political morality? Is that even an appropriate subject of judicial inquiry? Sunstein starts with judicial minimalism and ends with moral correctness. However well-intentioned, he’s created a monster.

I haven’t read Sunstein’s book, but many of the flaws that Menashi identifies remind me of Sunstein’s earlier book Radicals in Robes, which I reviewed in NR in 2005.

I’ll also highlight Menashi’s coining of the term “zombie Constitution” as a fitting riposte to advocates of the “living Constitution”:

Most living constitutionalists … prefer to retain the original constitutional text but infus[e] it with modern-day ideals. So living constitutionalists aim to establish not a “living” but a zombie Constitution; they want to take the corpse of constitutional text and reanimate it with new principles in every generation. But this Constitution is at war with itself. Like Frankenstein’s monster, half dead and half alive, it wanders in the wilderness never finding complete acceptance. Call this “the undead hand problem”: The living Constitution is always an unstable mix of living and dead elements, chosen according to the preferences of the assembler.

10/06 11:26 AMShare

Heritage Foundation Event on Judicial Activism   [Ed Whelan]

This Thursday, October 8, at noon, I will be taking part in an event at the Heritage Foundation entitled “Order in the Court?  Judicial Activism and Its Threat to the Rule of Law.”  My fellow panelists are pollster Kellyanne Conway and Heritage’s Robert Alt, and Todd Gaziano, also of Heritage, will serve as host and moderator.  For more information, or to RSVP, see here.

10/06 10:23 AMShare

The Cry for Justice   [Kathryn Jean Lopez]

The homilist at the annual Red Mass Sunday said, in part:

There are always smoldering wicks and bruised reeds needing our human attention, an attention that cries out and says that even sophisticated knowledgeable "human" lawyers need reminding, need a purifying divine fire from the Lord, both in their personal lives and in their profession itself. It is that reality that brings us to praise, reflection, and prayer this day.

The many smoldering wicks are our "clients" but more than clients. They are poor and wealthy, confused and lucid, polite and impolite. In some cases the clients are voiceless for they lack influence; in others they are literally voiceless, not yet with tongues and even without names, and require our most careful attention and radical support.

More here.

10/06 07:54 AMShare

Monday, October 05, 2009

Friday, October 02, 2009

Thursday, October 01, 2009

Thinking About Law School? Think Again!   [Kathryn Jean Lopez]

Justice Scalia: 

there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

10/01 04:32 PMShare

Wednesday, September 30, 2009

Court Grants Review of Second-Amendment Incorporation Question   [Ed Whelan]

The Supreme Court today granted review in the case of McDonald v. City of Chicago, which presents the question whether the Second Amendment applies against the states.

The upcoming term, which opens next Monday, already has a broad array of interesting cases.   Worthwhile previews of the term include Jonathan Adler’s NRO piece from a couple weeks ago and a Wall Street Journal article from yesterday.

09/30 10:38 AMShare

Tuesday, September 29, 2009

The Court’s Shrinking Docket   [Ed Whelan]

Why the sharp reduction in the Supreme Court’s caseload since the 1980s?  In the New York Times, Adam Liptak calls attention to a new (and refreshingly brief) paper by law professor David R. Stras that strongly indicates that changes in the Court’s membership are a primary cause.  Specifically, data from Justice Blackmun’s records for the years 1986 to 1993 show that each of the five justices appointed during those years—Scalia, Kennedy, Souter, Thomas, and Ginsburg—“was stingier with grant … votes than his or her predecessor.” 

Justice Ginsburg’s replacement of Justice White provides one striking example:  White “voted to grant plenary review a prodigious 215.6 times per Term …, or 67% more often than the next closest member of the Court,” while Ginsburg (in her only year included in the data) voted to grant review only 63 times.  As Stras explains, White and Ginsburg held very different views of the supervisory role of the Court:  White favored resolving circuit splits right away, whereas Ginsburg had (in 1987) complained about the “bloated size” of the Court’s docket.

Stras also raises the interesting question whether justices on both sides of the ideological divide on the Court were deterred from voting to grant review because of their lack of confidence that the Court would reach what they regarded as the right result.  But the limited data seem not to shed any light on that question.  (From 1990 to 1993, Chief Justice Rehnquist’s grant votes fell from 124 to 50, and Justice Scalia’s fell from 100 to 58.  But the vote totals of Justices O’Connor and Kennedy—whom the other justices would presumably regard as the main sources of uncertainty over how the Court would rule—also fell sharply, from 121 and 105, respectively, to 54 and 52.)

09/29 11:20 AMShare

Harvard Law School Event   [Ed Whelan]

This Thursday, October 1, I’ll be returning to my alma mater, Harvard Law School, to discuss lessons of the Sotomayor confirmation process with University of Texas law professor Sanford V. Levinson (who is a visiting professor at Harvard this semester).  The event, sponsored by the law school chapter of the Federalist Society, will run from noon to 1 p.m. in the John Chipman Gray Room on the second floor of Pound Hall.

09/29 10:28 AMShare

Monday, September 28, 2009

Misunderstanding the Court   [Ed Whelan]

Slate’s Dahlia Lithwick complains that the Supreme Court’s high standing in public-opinion polls reflects the fact that “it remains almost completely misunderstood by the American public.”  As regular Bench Memos readers will recognize, I have some sympathy for Lithwick’s overall complaint, but not for the reasons that she presents. 

Lithwick believes that the public fails to discern “a clear trend [at the Court] in which big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”  But one good reason that the public doesn’t discern that trend is that its existence is a fantasy of Lithwick’s creation—“breathtakingly inconsistent with reality,” as Hans Bader spells out in his Washington Examiner response to Lithwick.  (Update:  At the Volokh Conspiracy, Jonathan Adler also takes issue, in detail, with “Lithwick’s caricature.”)

Lithwick maintains that the “Roberts Court”—the Court that issued such rulings as, say, Boumediene v. Bush (aliens detained at Guantanamo as enemy combatants have a constitutional right to challenge their detention through a habeas corpus proceeding in federal court) and Kennedy v. Louisiana (death penalty for crime of raping a child always violates the Eighth Amendment)—“is a fundamentally conservative creature and will remain that way for the foreseeable future.”  I would maintain, to the contrary, that no Court on which Justice Kennedy provides the decisive vote—the same Kennedy who wrote and/or voted as he did in cases like Planned Parenthood v. Casey, Lawrence v. Texas, Boumediene, Rasul, Hamdan, Lee v. Weisman, and various Eighth Amendment/death penalty cases—can plausibly be described as “fundamentally conservative.”  (For similar reasons, I don’t think it’s fair to Chief Justice Roberts to refer to the current Court as the “Roberts Court.”)

Lithwick even asserts, parenthetically, that Justice Sotomayor “is generally expected to move the court to the right in some areas.”  I don’t know which areas Lithwick has in mind—I’m guessing some criminal-law issues on which the Court has not been divided ideologically—but I don’t think that anyone expects that Sotomayor will be to Kennedy’s “right,” and provide the decisive fifth vote, in any case that divides the Court on a basic matter of judicial philosophy.

09/28 11:17 AMShare

Sunday, September 27, 2009

Harvard Hates the Constitution   [Matthew J. Franck]

In 2004, at the behest of Sen. Robert Byrd, Congress passed a spending-bill provision requiring that on Constitution Day (now officially and foolishly renamed "Constitution Day and Citizenship Day"), educational institutions receiving federal funding—i.e., nearly all of them—must host some kind of educational programming on the Constitution on or about September 17, the anniversary of the last day of the Constitutional Convention of 1787.  Some colleges and universities do not comply with this federal statute, and probably count on being inconspicuous in their neglect.

Harvard University cannot count on being inconspicuous.  But the organizers of this year's Constitution Day event gave Congress a nicely conspicuous poke in the eye by putting on a panel dominated by scholars who loathe and despise the Constitution.  As reported by the Harvard Law Record, the university hosted a discussion chaired by Nancy Rosenblum and featuring Charles Fried, Mark Tushnet, Alexander Keyssar, Sanford Levinson, and Michael Klarman.  Without seeing a full transcript or video of the event, it's hard to know exactly how awful it was.  But the Record's report sounds awful enough, with Fried offering a sheepishly half-hearted defense of the Constitution, Tushnet reluctantly saying a few good words in order to "balance" the event, and Keyssar, Klarman, and Levinson falling over each other to say how much contempt they have for the nation's governing charter.  Racist, sexist, anti-democratic, chaotic—you name the pathology seen by leftist eyes, the Constitution's got it.  They don't like the separation of powers, they don't like federalism, they don't like the electoral college, and on and on.  It's a strange feeling to be so strongly affirmed in my admiration for the Constitution by observing the qualities of its enemies' arguments—and at the same time to be so dismayed by the quality of teaching in the most prestigious law schools.  For it appears that the Constitution's critics do not much like liberty, and would gladly sacrifice the institutions that secure its blessings in order to gain a good deal more "equality" (a larger welfare state, socialized health care, etc.)

Or so it appears—as I say, I haven't seen the full text or video of the event.  But here's a priceless boner from Prof. Levinson, assuming the Record quoted him accurately:

"To say that decisions made in 1787 should bind us today because those decisions were made by great men," he observed, "is like saying that we should be bound to the structure of the U.N. Security Counsel [sic] because the political needs of Stalin and Churchill were part of the logic of its formation."

But of course no one has ever argued that "decisions made in 1787 should bind us today because those decisions were made by great men."  What people have argued is that decisions made in 1787 should bind us today because those decisions became the Constitution, by the consent of the governed.  And because the Constitution is, rightly, regarded as a smashing success as these things go, the framers of it have been celebrated as great men.  And so they were.  No gnawing criticism of modern mice will change that.

As for the Constitution Day celebration at Harvard University?  No great men in sight, I'm afraid.

09/27 10:23 AMShare

Saturday, September 26, 2009

Friday, September 25, 2009

Michael Stokes Paulsen on International Law   [Ed Whelan]

Via Opinio Juris, I’ve just learned of law professor Michael Stokes Paulsen’s recent Yale Law Journal article entitled “The Constitutional Power to Interpret International Law” (accessible here).  Paulsen is one of my favorite constitutional scholars, and my initial quick review of his article (which has focused most heavily on his Part I) indicates that it embodies his usual clarity, logical rigor, and willingness to reject unsound conventional wisdom.  One excerpt:

Carl von Clausewitz famously referred to the “fog” of war as a metaphor for the inability to think clearly and sensibly in the midst of battle once the forces of war have been unleashed. “Fog” is likewise a useful image for the phenomenon of unclear thinking about international law in contemporary legal and political discourse. Once the idea of international law has been unleashed, its rhetorical salience frequently seems to overtake careful thought.

What precisely is the force of international law as a matter of U.S. law, under the U.S. Constitution? How does it affect—does it affect—the U.S. constitutional law of war and foreign affairs powers? My contention is that international law is not binding law on the United States, and cannot be binding law except to the extent provided in the U.S. Constitution. That extent is very limited and subject to several important constitutional overrides—empowerments or restrictions that nearly always permit international law requirements to be superseded by contrary enactments or actions of U.S. governmental actors.

The result is that international law is primarily a political constraint on the exercise of U.S. power, not a true legal constraint; it is chiefly a policy consideration of international relations—of international politics. International law may be quite relevant in that sense. But it is largely irrelevant as a matter of U.S. law. While the legal regime of international law may consider international law supreme over the law of every nation, the U.S. Constitution does not.

09/25 02:47 PMShare

Ginsburg Hospitalized   [NRO Staff]

WASHINGTON (AP) — Ruth Bader Ginsburg, the 76-year-old Supreme Court justice who underwent pancreatic cancer surgery earlier this year, fell ill at work after a treatment for anemia and was hospitalized overnight.

Ginsburg was taken to Washington Hospital Center at 7:45 p.m. EDT Thursday and would remain there for the night as a precaution, a statement from the court said.

Earlier in the day, Ginsburg had received an iron sucrose infusion to treat an iron deficiency anemia that had been discovered in July.

09/25 05:27 AMShare

Thursday, September 24, 2009

More Signing-Statement Curiosities   [Ed Whelan]

As I explained three years ago, the signatories to the ABA’s foolish report on presidential signing statements deserve intense derision for their shoddy and irresponsible work.  Further special recognition seems to have been earned by two of those signatories, former Yale law school dean Harold Koh and attorney Mark D. Agrast.

In adopting the ABA’s report on presidential signing statements, both Koh and Agrast voted to “oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President’s issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.”  (Report, p. 5.)  They and their fellow signatories maintained that their opposition was “directed not just to the sitting President, but to all Chief Executives who will follow him.”  (Id.)  They embraced the confused and rhetorically extravagant assertion that a president “may not sign [bills] into law and then emulate King James II by refusing to enforce them” (or any part of them).  (Id. at 19.)

As State Department legal adviser, Koh is now apparently implementing President Obama’s signing statement in March that asserted the president’s authority to disregard certain provisions of the Fiscal Year 2009 Department of State, Foreign Operations, and Related Programs Appropriations Act.  Specifically, as the New York Times recently reported (and as I discussed here), the Obama administration, has chosen to “disregard a law forbidding State Department officials from attending United Nations meetings led by representatives of nations considered to be sponsors of terrorism.”  The most recent reported instance of State Department officials’ disregarding this law occurred earlier this month, under Koh’s watch.

As I learned from a passing mention in an article in today’s Washington Post, Agrast, meanwhile, has become the deputy assistant attorney general for legislative affairs in the Department of Justice.  In that capacity, Agrast has the job of defending to members of the Senate and House and their staffers the positions that President Obama has taken in his various signing statements.

If Koh and Agrast truly believe that President Obama’s signing statements are “contrary to the rule of law and our constitutional system of separation of powers,” how can they be complicit in their implementation?  It’s of course theoretically possible, but in my judgment highly improbable, that Koh and Agrast are conscientious objectors to President Obama’s signing-statements practice—in other words, that they have quietly refused to carry out some of the duties ordinarily associated with their positions.  It’s also possible that they have recognized how foolish the position they publicly took in 2006 was.  If so, it would have been be fitting for them to say so publicly.  [On review, I’ve tweaked the verb tense in the preceding sentence, as I don’t mean to maintain that Koh and Agrast have the same freedom to speak publicly on the matter that they had before taking their jobs in the Administration.]

09/24 04:35 PMShare

“The Case Against Boies-Olson”   [Ed Whelan]

On NRO, George Mason law professor Nelson Lund has an excellent essay critiquing the lawsuit in Caifornia that David Boies and Ted Olson have brought against marriage.  (Equally noteworthy, if you missed it two months ago, is Matt Franck’s lengthy post responding to the arguments—or, rather, assertions—that Boies made in a Wall Street Journal op-ed.)

09/24 01:43 PMShare

Tuesday, September 22, 2009

Ban the New York Times?   [Ed Whelan]

In an editorial today, the New York Times asks, “What constitutional rights should corporations have?”—by which it seems to mean, “What constitutional rights should the Supreme Court recognize corporations to have?”  Alleging, on negligible evidence, that “the John Roberts court …. has been on a campaign to increase corporations’ legal rights,” the paper opines that the rights of corporations “should be quite limited—far less than those of people.”  On matters of speech, the editorial acknowledges only that it is “in society’s interest that [corporations] are allowed to speak about their products and policies.”

I may well share much of the Times’s general skepticism about the existence of corporate constitutional rights—except (and this may be a big “except”) insofar as such rights are derivative of the underlying individual rights of shareholders or of corporate officers and employees.  But as Eugene Volokh points out in a couple of posts (here and here), what’s really striking about the Times editorial is the Times’s apparent obliviousness to the consequences of its position for itself.  Noting that the Times is owned by a corporation, Volokh states:

Where would the arguments in the New York Times editorial leave the New York Times itself? Shouldn't New York Times v. Sullivan (the landmark libel case) and New York Times v. United States (the Pentagon Papers case), for instance, have come out the opposite way under the Times' analysis? ….

[A] business corporation [the Times] is publishing a political message arguing that business corporations shouldn't have the constitutional right to publish political messages, without even (1) mentioning that its argument would apply to itself, and (2) explaining why, despite that, the argument should not apply to itself.

09/22 01:22 PMShare

Saturday, September 19, 2009

Friday, September 18, 2009

Re: Campaign Finance and Precedent   [Ed Whelan]

Further reason that the Court might reasonably be expected to overrule its holdings in Austin and McConnell in the pending case of Citizens United v. FEC is provided by what election-law expert Rick Hasen—who opposes the overruling of those holdings—calls the government’s “remarkable” brief.  As Hasen put it (in a post in late July):

[T]he government does not even mention the central holding of Austin, much less defend it.  To put this in context, before Austin, in Buckley v. Valeo the Court had held that contributions to candidates could be limited because of the government's interest in preventing the corruption of elected officials (through quid pro quos and otherwise) and the appearance of such corruption, but that independent spending by individuals could not be limited consistent with the First Amendment. With truly independent spending, the Court in Buckley said, the link to corruption of candidates is too tenuous, and the costs to freedom of speech and association too high to justify such limits. Buckley did not deal with corporate spending limits, but in a 1981 case, First National Bank of Boston v. Bellotti, the Court held that corporate spending limits in ballot measure elections, in which candidates are not involved, are unconstitutional. In Austin, however, the Court held that corporate spending limits are constitutional. The key passage in Austin is the following:

… Regardless of whether [the] danger of "financial quid pro quo" corruption may be sufficient to justify restriction on independent expenditures, Michigan's regulation aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas. The Act does not attempt "to equalize the relative influence of speakers on elections"; rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations may accumulate large amounts of wealth is not the justification for [the Act]; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures.… [internal citations omitted]

Though the Austin Court spoke of a "different type of corruption" (like the "other white meat"), the anti-distortion rationale is better thought of as a type of equality argument, rejecting "disproportionate" corporate spending that can "unfairly influence elections." …

[T]he government brief does not mention the rationale, even in passing …. [I]t is no surprise that the government does not want to emphasize Austin anti-distortion. After all, as I detail here, this equality rationale has already been undermined by the Court's recent opinion in FEC v. Davis …. But in passing on discussing the equality/anti-distortion rationale, the government puts a great deal of effort into an argument that only Justice Stevens has embraced (in his Austin concurrence): that the government can justify limits on corporate independent spending to prevent quid pro quo corruption of candidates. In other words, the argument that the government pushes here requires the Court to reject, at least in part, one of the central tenets of Buckley, that independent spending cannot be limited because the independent nature of the spending means it cannot corrupt candidates.…

In sum: 

1.  The Solicitor General, representing the FEC and presumably complying with the office’s usual practice of advancing all arguments that can reasonably be made in defense of a federal statute, has walked away from the Court’s actual rationale in Austin.  The SG’s abandonment of Austin’s actual rationale is all the more striking as the Court’s opinion in Austin was written by Justice Thurgood Marshall, for whom SG Elena Kagan served as a law clerk (in an earlier term). 

2.  According to Hasen (whose expert judgment I defer to, all the more so here because it is adverse to his favored position), Austin’s actual rationale “has already been undermined” by recent precedent.

3.  Again according to Hasen, the defense of Austin that the SG is advancing is contrary to “one of the central tenets of Buckley.”

I recognize that there are some other factors that might reasonably be thought to cut against the Court’s use of Citizens United as the occasion for overruling its holdings in Austin and McConnell, and I haven’t paid enough attention to the case, or to campaign-finance case law generally, to offer a bottom-line judgment on that question.  I’ll limit myself to the observation that it would seem to me presumptively unobjectionable for the Court to overrule a precedent that is based on a rationale that a supportive SG (supportive of the precedent, that is) won’t even defend, especially when the perpetuation of that precedent would create or extend conflict with other better-regarded precedents.

09/18 02:31 PMShare

Thursday, September 17, 2009

Gerard Lynch Confirmed   [Jonathan Adler]

This afternoon the Senate confirmed Judge Gerard Lynch to a seat on the U.S. Court of Appeals for the Second Circuit by a vote of 94-3.  Details here.  Judge Lynch is the first of President Obama's appellate nominees to be confirmed by the Senate.

09/17 05:18 PMShare

A Child of Fortune   [Matthew J. Franck]

As Ed and others have noted, today is Constitution Day—the 222nd anniversary of the final day of the Constitutional Convention.  (Or as one of my students recently mistyped, the "Constitutional Convection"—anyone want to bake a cake?)

Here is what George Washington, who presided over that summer-long meeting, wrote the next day to the Marquis de Lafayette concerning the Constitution:

It is the production of four months deliberation.  It is now a Child of fortune, to be fostered by some and buffeted by others.  What will be the General opinion on, or the reception of it, is not for me to decide, nor shall I say any thing for or against it: if it be good I suppose it will work its way good; if bad, it will recoil on the Framers.

It was indeed good.  May we ever resolve to foster and not to buffet this child of fortune.

09/17 11:35 AMShare

A Resignation over Judicial Pay   [Ed Whelan]

According to this National Law Journal article, federal district judge Stephen G. Larson has announced that he will resign from the bench because Congress’s failure to increase judicial salaries makes it impossible for him to support his family.  Larson, 44, who was appointed by President Bush to the Central District of California in 2006, has seven children.  He has a long career of public service, including nine years as a prosecutor and six years as a magistrate.

My sympathies are genuinely with Larson, who may reasonably have expected at the time he was appointed that a substantial increase in judicial pay was imminent.  As I discussed in this February 2008 post, the judicial-pay bill reported out of the Senate Judiciary Committee would have raised the salaries of federal district judges to $218,000 (from $169,300), of federal appellate judges to $231,100 (from $179,500), of associate Supreme Court justices to $267,900 (from $208,100), and of the Chief Justice to $279,900 (from $217,400).  But that bill was apparently stymied because of some of its ancillary provisions.

I am of course not contending that Larson’s resignation itself proves the need for an increase in judicial salaries.  The case for an increase rises or falls on its broader systemic costs and benefits.  For what it’s worth, my own strong impression is that a substantial increase is warranted, though I would prefer that a locality-pay component, following the executive-branch model, be incorporated.  (That approach might be thought to raise constitutional difficulties in the event a judge moves his chambers from a higher-pay locality to a lower-pay one—and thereby faces a reduction in his overall compensation—but I think those difficulties can be finessed one way or another.)

09/17 10:57 AMShare