Thursday, May 15, 2008

McCain Reaction to California Ruling   [Gerard V. Bradley]

McCain spokesman Tucker Bounds released this statement from the presumptive nominee about today's California Supreme Court decision on same-sex "marriage":

"John McCain supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona. John McCain doesn't believe judges should be making these decisions."

05/15 10:01 PM

California Marriage Ruling: More Comments   [Ed Whelan]

A couple additional comments, which I will number serially from my previous comments:

4.  Chief justice George’s majority opinion reeks of judicial imperialism and rarely takes notice of those pesky yahoos called citizens.  When it does, it deals with them dishonestly.

For example, George writes:  “If civil marriage were an institution whose only role was to serve the interests of society, it reasonably could be asserted that the state should have full authority to decide whether to establish or abolish the institution of marriage.”  (62 (emphasis added).)  By “the state,” George in fact means California’s citizens, whether acting by voter initiative or through their legislators (and he posits an unattractive hypothetical argument that defenders of traditional marriage need not, and apparently did not, make).  So we have George, in the course of a flagrantly illegitimate exercise of state power, trying to cast aspersions on the legitimate power of citizens.

Even more brazenly, George later tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.”  (113)  In a sense, yes—when they are faithfully and properly interpreted and applied.  But not when judicial activists like George stretch their terms beyond what the people who adopted them could possibly have meant.

5.  Given the high likelihood that the California Marriage Protection Act—a voter-sponsored initiative that would amend the California Constitution to provide expressly that “Only marriage between a man and a woman is valid or recognized in California”—will be on the state ballot in November, the sensible course of action would be for the state supreme court to stay its ruling until after the November vote (or until after the initiative fails to qualify for the ballot).  If the supreme court instead permits its ruling to go into effect promptly (as it apparently intends), it will create the potential for lots of chaos and confusion.  Consider, for example, same-sex “marriages” that occur between now and November, and assume that the initiative is adopted, thus overriding the court’s ruling.  What happens, say, to a same-sex couple that has moved out of state in the meantime?  How would other states treat the “marriage”?  How would they handle requests for divorce?

There is one very bad reason for the court to have its ruling take effect in the meantime:  to try to affect the November vote by, for example, making same-sex marriage seem a fait accompli.  Somehow I suspect that is the majority’s reason.

05/15 09:48 PM

California Marriage Ruling: A Few Comments   [Ed Whelan]

Just a few quick comments:

1.  The majority itself concedes that “[f]rom the beginning of California statehood, the legal institution of marriage has been understood to refer to a relationship between a man and a woman.”  But it fails to recognize that that is an essential characteristic of the very “right to marry” that it is construing—and that no one, until recent years, would have pretended otherwise.

Is there anything in the court’s concocted “right to marry” that would prevent it from being invoked by, say, practitioners of adult incest or plural marriage?  On the latter:  Oh, sure, the court repeatedly speaks of “couples”, but that’s because no plural marriage was at issue.  What in the court’s reasoning, what in its principles will prevent the extension of the right to marry to those whose own sense of “personal autonomy” and of “family” calls for plural marriage?  (Perhaps there is something:  I haven’t yet read carefully through the entire 121-page majority opinion.)  [UPDATE:  I now see that footnote 52 attempts—unsuccessfully—to distinguish polygamy and incest on the ground that “our nation’s culture has considered [those] relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”  Similar considerations would seem to explain why voters haven’t redefined marriage to incorporate same-sex couples.]

2.  The majority offers the usual false assurances that its task “is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership …, but instead only to determine whether the difference in the official names of the relationships violates the California Constitution….  Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.”  (Emphasis in original.)

Oh, please.  Spare us the pompous nonsense.  I’ll repeat, with minor changes, what I had to say about the New Jersey supreme court’s similar (but marginally more modest) ruling in October 2006:  This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades.  So many judges today view judicial decisionmaking as essentially an autonomous process, unmoored from the meaning of the actual text.  Not a single justice in the majority did a simple sanity check:  Is it remotely plausible, remotely compatible with democratic principles, to read the state constitutional provisions as supporting the court’s result? 

3.  I’ll note again that California voters will likely have the opportunity in November to override the court’s decision.  I wish as well that voters could give the justices in the majority the Rose Bird treatment (see This Week for Nov. 4, 1986), but if I understand California law correctly, the earliest any of them will face a retention election is 2014.

05/15 04:35 PM

California Marriage Ruling   [Ed Whelan]

Here’s my quick stab at a selective (but, I think, neutral) summary of California chief justice Ronald M. George’s 121-page majority opinion, which was joined by associate justices Kennard, Werdegar, and Moreno:

1.  The issue in California differs from that addressed by other state courts because California has in recent years enacted “comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges” as marriage.  (Emphasis added.)  Thus, the issue here is whether the state constitution prohibits identical statutory schemes for opposite-sex and same-sex couples, one designated “marriage,” the other “domestic partnership.”  (2-4; see also 36-47 & 42 n. 24 on virtual equivalence of marriage and domestic partnership.)

2.  The implied state constitutional right to marry must be understood to encompass “the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated.”  These rights include “the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.”  (Emphasis in original.)  The state constitution must be interpreted to guarantee this right “to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”  Giving the name “marriage” to the relationship entered into by opposite-sex couples and the name “domestic partnership” to that entered into by same-sex couples violates the state constitutional right to marry.  (6-9; 49-79.) 

3.  The different names also violate the state constitutional equal protection clause.  Strict scrutiny applies because the classification is based on sexual orientation.  California doesn’t have a compelling state interest in the differential names, nor is the difference necessary to serve what interests California does have.  (9-12; 82-119.)

The subsidiary arguments are too lengthy to summarize; I’ll leave it to interested readers to wade through them.

From associate justice Baxter’s dissent (joined by associate justice Chin):  “Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage … is no longer valid.  California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow.  If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means.

From associate justice Corrigan’s separate dissent:  “The principle of judicial restraint is a covenant between judges and the people from whom their power derives.…  It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.…  If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

05/15 02:26 PM

Judicial Activism Alert!   [Ed Whelan]

By a vote of 4 to 3 (I think), the California supreme court has concocted a right to same-sex marriage under the state constitution.  I’ll have more once I’ve read the decision.  For now, I’ll note that California voters will likely have the opportunity in November to override the court’s error:  The California Marriage Protection Act is a voter-sponsored initiative that would amend the California Constitution to provide expressly that “Only marriage between a man and a woman is valid or recognized in California.”  The initiative is well on its way to being placed on the November ballot; it acquired far more voter signatures than needed, and those signatures appear to be holding up well in the signature-verification process.

05/15 01:08 PM

Wednesday, May 14, 2008

Trouble in the Heartland   [Gerard V. Bradley]

Kansas Gover Kathleen Sibelius is in the news for two reasons.  One is that some people think she would be a good running mate for Barack Obama.  The other is that Archbishop Joseph Naumann of Kansas City publicly stated that she should not receive Holy Communion until she repudiates her pro-abortion positions.  The Archbishop cited several Sibelius vetos of abortion-restricting bills, particularly the recently passed Comprehensive Abortion Reform Act.

The archbishop is responsible for the spiritual welfare of all Catholics within his archdiocese, including Governor Sibelius.  His action flows from that responsibility and is not meant to be, nor should it be understood as, ecclesiastical interference in political matters.

Governor Sibelius' response, however, raises an interesting and important question of constitutional law.  She (partly) explains her vetoes as requirements of office, and not (at least not necessarily) as her own preferences.  She says that court decisions about abortion rights show that the bills cross the constitutional line, and that her oath therefore requires her to  veto the bills as unconstitutional. 

By "unconstitutional" Governor Sibelius almost certainly means: contrary to a present majority view on the Supreme Court.  But this is not the same thing as the Constitution or a sound interpretation of it.  She should not veto an abortion bill based upon what five Justices say the Constitution means, unless that is also her view of what the Constitution truly requires.  After all, she swore to "support the Constitution", not whatever a court says about it. 

Maybe — maybe — it is sometimes legitimate for a governor to veto a bill which she thinks is constitutionally sound, but which she is sure a court will strike down, saying: 'though I disagree with the Court's interpretation, there is no realistic prospect that will change soon.  Thus this good law is bound to be enjoined immediately, do no good for that reason, cost a lot to defend  with no prospect of victory in sight, etc.  But when fundamental matters of justice are at stake  — as they are with abortion  —  this won't do.

So, if Governor Sibelius holds what she ought to hold about when people begin — at fertilization — and if she glances at the Equal Protection Clause of the Fourteenth Amendment, she will see where her constituional duty lies: assuring equal treatment for all persons (including those not yet born) under the homicide laws of Kansas. 

05/14 05:09 PM

California Marriage Ruling Tomorrow   [Ed Whelan]

According to an announcement today, the Supreme Court of California will disclose tomorrow whether it has decided to concoct a right to same-sex marriage under the state constitution.  The ruling will be announced at 1:00 ET.

05/14 05:04 PM

Future Supreme Court Justice...   [Kathryn Jean Lopez]

...Paul Clement is moving on. Resigning at the end of this SCOTUS term:

WASHINGTON – Today, the Department of Justice announced that Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.

Nominated by President Bush on March 14, 2005, Clement was confirmed as Solicitor General on June 8, 2005, and was sworn in on June 13, 2005. Prior to his confirmation, he served for over four years as Principal Deputy Solicitor General, and during that period served for nearly a year as Acting Solicitor General. Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.

“Paul Clement is one of the nation’s finest appellate lawyers,” said Attorney General Michael B. Mukasey. “I am deeply grateful to Paul for his service to the Department and to the nation during his seven-year tenure in the Office of the Solicitor General. I will miss not only Paul’s superb advocacy on behalf of the United States, but also his wise counsel and keen legal analysis.”

During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. Landmark cases argued by Clement include Tennessee v. Lane, McConnell v. FEC, Rumsfeld v. Padilla, Gonzales v. Raich, and. He also argued many other significant cases in both the Supreme Court and the lower courts involving novel and important legal issues concerning the conduct of the War on Terror. Gonzales v. Carhart

The Office of the Solicitor General is responsible for conducting all litigation on behalf of the United States in the Supreme Court, and for supervising litigation in the federal appellate courts. Oral arguments for the 2007 Supreme Court term were completed in April 2008. The Department will submit all of its briefs for action during this term by the end of May 2008.

Prior to today’s announcement, Clement informed the President and the Attorney General of his plans to resign.

05/14 04:00 PM

Re: Still More on Obama’s [Non-]Conversion   [Ed Whelan]

At the risk of exhausting the patience of readers, Gerry, I think that we are disagreeing.  You somehow see a grand victory in Obama’s patently false declaration that “Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.”  As I discussed here, I see a deliberate deception meant to mask the scope of the damage that would result from Obama’s liberal judicial activist picks to the Supreme Court. 

You want us to leave the next move to Obama.  I have no idea what that means.  There’s nothing new about Obama’s claim.  Obama made the same claim in his September 2005 remarks explaining his decision to vote against the confirmation of John Roberts: 

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

What sort of a victory was that?  What further move are we awaiting? 

I’m also at a loss as to how you think that I might be “scrambl[ing] legal conservatism.”  What will most damage legal conservatism is the election of a President Obama.  Imagining that Obama is on our team is one way to help achieve that result.

05/14 03:30 PM

Ronald Dworkin’s The Supreme Court Phalanx   [Ed Whelan]

I’ve recently received Ronald Dworkin’s new book, The Supreme Court Phalanx:  The Court’s New Right-Wing Bloc.  The little book—just 70 pages—republishes in four separate chapters four essays by Dworkin that appeared in the New York Review of Books from 2005 to 2007—one on Roberts’s confirmation hearing, one on Alito’s, one on the 2007 partial-birth ruling, and one on the 2006-2007 term generally.

I’ve just read a couple of the chapters this morning and skimmed the others.  One need not wade far into the book to discover that Dworkin—a law professor at NYU and at University College London and, for reasons that escape me, a revered figure in some quarters—is quite unhinged.  At the end of the first chapter of his introduction, Dworkin, summarizing the Supreme Court from 1994 to 2005, asserts that Chief Justice Rehnquist, Justice Scalia, and Justice Thomas “steadfastly defended the most conservative positions possible.”  That assertion is patently false.  For example, on the issue of abortion (about which Dworkin is passionate), Rehnquist, Scalia, and Thomas never took the position that the Constitution prohibits permissive abortion laws.  Rather, they took the middle-of-the-constitutional-road position that the Constitution does not speak to the question of abortion.  (For more on this, see my 2005 essay, “Abortion and Justice:  Let’s hope John Roberts is a genuine moderate”.)  Likewise, on issues of race, the trio never took the position that Brown v. Board of Education was wrongly decided.  Instead, they took the position that the Constitution requires that the government be color-blind.  For someone like Dworkin who associates conservatives with benighted racial views, it is absurd to contend that colorblindness is “the most conservative position[] possible.”  And so on for plenty of other issues.

Here are some other examples of Dworkin’s wild rhetoric:

“The polarization [in the 2006-2007 term] was matched by revolutionary zeal:  the new conservative phalanx overruled an amazing number of past decisions in that term.”  (pp. xi-xii)

“Alito, Roberts, Scalia, and Thomas are judges on a mission:  to destroy the impressive constitutional structures that a long succession of prior justices built and shaped in the decades following the Second World War, and to replace them with cruder principles that burden if not eliminate abortion rights … and allow the executive branch near-dictatorial powers in the so-called ‘war’ against terror.”  (p. xii)

“The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.” (p. 47)

“It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance.”  (pp. 47-48)

“I suspect that [Roberts’s] Senate testimony was actually a coded script for the continuing subversion of the American Constitution.  The worst is yet to come.”  (p. 70)

Even a quick read shows that, beyond his reckless rhetoric, Dworkin can’t be trusted to present legal issues accurately.  For example, Dworkin contends that “[i]n one of the two most politically sensitive of his cases [as a D.C. Circuit judge, Roberts] declared that the federal government has no power under the Constitution’s interstate commerce clause to force a California developer to protect an endangered species of toad that has so far been found only in that state.”  In fact, Roberts’s opinion (in dissent from a denial of rehearing en banc), in arguing that the panel’s approach “seems inconsistent with” Supreme Court precedent, expressly reserved the possibility that there might be “alternative grounds for sustaining application of the [Endangered Species] Act” under the Commerce Clause.  Similarly, Dworkin concocts a flawed challenge to Alito’s testimony that “the question of the unitary executive [as Alito had used the term] does not concern the scope of executive powers, it concerns who controls whatever power the executive has.” 

05/14 02:42 PM

Still More on Obama's Conversion   [Gerard V. Bradley]

Ed Whelan and I are not disagreeing so much as we are talking about different things.  Ed questions whether the position which Obama says is his, is really his.  Or, Ed questions whether Obama means what we mean when we say things that look and sound just like what Obama said.  Or both.

I am talking about the position itself that Obama described (and says is his).   I think I know legal conservatism when I see it.  And anyone who says that the judicial lion can (does, should) lie down with the lamb up to 99 percent of the time, is singing  a conservative tune. Anyone who says that John Roberts' picture of calling balls and strikes hits home in all but one case of the hundred, is playing on the Fed-Soc's team. 

Groucho once said that he would not want to belong to any club willing to have him as a member.  It is tempting to think that any position claimed by Barack Obama on judges just cannot be the movement in which Ed — and I — have long labored.  Yet, there is Obama's speech, in black and white (and red, not blue).   The next move is, I think, Obama's, not ours.   What I would not do — and which I fear Ed might, in part, be doing — is scramble legal conservatism just so that Obama's confessed position, isn't.

Postscript: Ed mentions (in his most recent post) Ronald Dworkin's "one right answer" thesis.  I don't think Dworkin's views are apposite.   Dworkin argued that the conventional legal materials are usually indeterminate, and that judges routinely must rely upon their own moral principles to actually find the law of the case.  For Dworkin, the "right" legal answer was the answer which was the morally "best" answer which also "fit" the legal materials.  Obama is saying (believe it or not) that conventional legal materials almost always settle matters, and that rarely should judges rely upon their "moral bearings."

05/14 12:58 PM

Tuesday, May 13, 2008

More on Obama’s [Non-]Conversion   [Ed Whelan]

Gerry:  I’ll also note that not all “living constitutionalists” believe the Constitution to be broadly indeterminate.  For example, as Judge Posner (in How Judges Think) describes Ronald Dworkin’s views—I’ll acknowledge that it’s been a long time since I myself have read Dworkin—Dworkin believes “that there is one right answer to every legal question.”  So even if one took seriously (as I don’t) Obama’s statement that he believes that there is a clear answer in 95% (or 99%) of all cases, it simply wouldn’t follow that Obama has joined the conservative legal movement (any more than Dworkin has). 

05/13 06:06 PM

Re: Obama’s Conversion   [Ed Whelan]

Except, Gerry, that Obama doesn’t mean his supposed concession about the law’s determinacy and he’s using it to deceive the public into thinking that liberal judicial activism only rarely affects case outcomes.  We’re not in a formal legal proceeding where we can use his statement against him.  We’re in an election where he’s trying to use it against us.  So I’ll defer any celebrating.

05/13 02:23 PM

Obama's Conversion   [Gerard V. Bradley]

In the heat of forensic battle it is hard to recognize when a concession — even a huge one — has been made.  I tell this to my students in Trial Advocacy all the time, especially when they practice cross-examination. I tell them: listen to the witness's answer and know when you have won. Then stop. Bank it for your closing argument. Move on to something else, or just sit down.

This comes as news to my beginning students. They keep jabbing at the witness, mauling him or her if given the chance (and, sometimes, even when not). These students mistake the process for the result. They think that the point of cross-examination is precisely to be tough, harsh, combative, as if they get points for being, well, cross. The point of cross-examination is, however, to get what you need from the witness in order to make the closing point you have already decided to make. If the witness serves it up to you on a platter, be glad. It's a good day. Don't act like you have been robbed of your birthright, of your one chance to go ten rounds with the champ.

Barack Obama has just handed a great gift to conservatives.  He is now on record (with Wolf Blitzer, if that counts) as saying about the Supreme Court that in "5 percent of cases or 1 percent" the law won't be clear.  Obama is thus conceding that there may be as few as one case each term in which a Justice would have to resort to his or her own "moral bearings" to decide the matter. ONE CASE!!!. 

This gigantic concession to law's determinacy will shock the consciences of Obama's teachers at Harvard Law School, who surely gave much wider berth to the vision thing in matters constitutional. Too bad for Laurence Tribe, who might now want to re-shoot his fawning television commercial for Obama. But, for conservatives, it is very good indeed. It is not time to bicker and argue with Obama about the content of judges' worldviews, and about the proper scope of judicial deference to legislators in the annual limit case. It is time to stop. Sit down. Kick back. And pop open the bubbly, for Barack Obama has just announced his conversion to the conservative legal movement.

Cheers!

 

05/13 12:31 PM

Monday, May 12, 2008

Re: More Obama Support for Liberal Judicial Activism   [Ed Whelan]

I’m reminded by this Volokh Conspiracy post that Obama used the same 95% canard in his July 2007 speech to the Planned Parenthood Action Fund (transcribed here*), after referring to Chief Justice Roberts’s intellect:

[I]n the overwhelming number of Supreme Court decisions, [intellect is] enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.  

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be.  Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges.  

* I’ve tweaked the transcript to correct its misspelling of Ginsburg’s name.  Based on my own previous review of the video of the speech, I’ve also made some slight changes to the transcript’s punctuation of the passage and have substituted “criterion” for “criteria”.  (I quoted the last part of this passage in my Weekly Standard essay on Obama’s commitment to liberal judicial activism.)

05/12 05:00 PM

More Obama Support for Liberal Judicial Activism   [Ed Whelan]

In my Weekly Standard essay from mid-March, I showed how Barack Obama’s record and rhetoric on judicial nominations reveal him to be “a leftist partisan who will readily resort to sly deceptions to advance his agenda of liberal judicial activism.”  In a softball interview with CNN’s Wolf Blitzer last week, Barack Obama provided further evidence of his sweeping liberal judicial activism.  Some excerpts from this transcript (emphasis added):

BLITZER: You know a lot about the Supreme Court. And the next president of the United States will have an opportunity to nominate justices for the Supreme Court. He gave a speech, McCain, this week saying he wants justices like Samuel Alito and John Roberts. And he defined the kind of criteria he wants. So, what would be your criteria?

OBAMA: Well, I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial lawmaking. I think...

*  *  *

OBAMA: What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.  And, in those circumstances, what I do want is a judge who's sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.

Let’s examine the Obama two-step:

1.  Obama first tries to minimize for the general public the importance of who picks Supreme Court justices.  After Blitzer helpfully assures the audience that Obama “know[s] a lot about the Supreme Court,” Obama asserts—in the context of discussing the Supreme Court—that “95 percent of the time, the law is so clear, that it's just a matter of applying the law.”  A bit later, he states that “cases where the law isn’t clear” are “5 percent of cases or 1 percent of cases.”

As Obama ought to know, the unanimity rate on the Supreme Court is nowhere near 95%.  According to the Harvard Law Review’s statistics for the past three terms, cases with dissents accounted for 64.4% (2006 term), 45.7% (2005 term), and 62.0% (2004 term) of all cases.  Indeed, last term, cases dividing 5-4 accounted for over a third of all cases, and the three justices that Obama cited as justices he likes—Breyer, Ginsburg, and Souter—agreed in the disposition of non-unanimous cases only 61%, 60%, and 63% of the time, respectively.

Obama could of course maintain that the Court majority is misapplying clear law in lots of cases.  But that’s not his argument.  Instead, he’s pretending that the divide among the justices is far less than it actually is—and that he’s “not somebody who believes in a bunch of judicial lawmaking.”     

2.  When the law isn’t clear, Obama argues, “the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.”  But, contrary to Obama’s position, there is nothing inevitable about the judicial activism that he prescribes.  For example, in cases in which a statute is being challenged as violative of the Constitution, a justice who ultimately finds it unclear whether the statute in fact violates the Constitution ought—under principles of judicial restraint—to let the statute stand.  What possible authority does the justice have for resorting to “his or her own perspectives, his ethics, his or her moral bearings” to strike down the statute? 

It of course sounds enticing that justices should be “sympathetic enough” to side with the “vulnerable” and the “powerless”.  But those are highly manipulable terms that liberal judicial activists apply selectively.  Somehow their sympathies are never exercised for, say, inner-city children deprived of school choice or for the most vulnerable and powerless group of human beings among us, the unborn.  Within the broad bounds of the Constitution, it’s the role of citizens and legislators to decide whether and how to express our sympathies through the democratic processes; it is not the proper role of justices to invoke their own sympathies to override the give-and-take of democratic politics.

05/12 11:13 AM

Friday, May 09, 2008

Welcome to My Neighborhood   [Matthew J. Franck]

I don't want to get Gerry Bradley thrown off Senator McCain's Justice Advisory Committee — and I'm very glad he's on it to hold the Republican presidential nominee to the standards enunciated in that speech the other day — but I wonder whether Gerry really agrees more with the senator, or more with me. Here's Gerry's take on the difference between a presidential nomination of a Supreme Court justice, and a senator's vote to confirm that nominee:

I submit that the norms or criteria according to which a President should select nominees for the bench differ from the norms and criteria according to which a Senator should decide to confirm (or oppose) the President's choices. It also seems to me that this difference — whatever exactly it is — amounts to deference: a Senator (such as John McCain) should vote to confirm some nominees which he would not have nominated from the Oval Office. Put differently: that a Senator (such as John McCain) would not himself have nominated, say, Stephen Breyer, is not by itself sufficient reason to vote against Breyer's confirmation.

We are largely agreed on what Gerry says here. The initiative to shape the future of the Supreme Court rests with the president, who nominates. Senators can only say "yea" or "nay" to those nominations, and for various prudential reasons may wish to say "yea" when the nominee is someone they would very strongly prefer not to see on the Court. They may believe that the nominee is "good enough" but not ideal. They may expect the president to do no better with his next nominee if this one is defeated. They may be able to count heads, see that the nominee is bound to be confirmed regardless of any arguments they might make to the contrary, and decide to join the "yea" votes in order not to antagonize the president or their fellow senators.  I would not call this "deference," as Gerry does, but a pragmatic political calculation when one is in the minority. It would not exactly be principled behavior (in the strongest sense), but neither would it be blameworthy depending on the circumstances.

McCain's own statement on the matter was much stronger, and strove to enunciate a principle that animated his votes for Ginsburg and Breyer:

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me. And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsburg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.

As a single paragraph, this travels in such a circle that it comes back to bite itself in the hindquarters.  Senator McCain has his "own standards" for appointing justices, exemplified by Roberts and Alito. I would ordinarily take these to be his notion of what makes a justice "qualified."  But in the next breath he declares that Ginsburg and Breyer were "qualified," and inasmuch as there was a president who preferred such nominees and it was his "call to make," it would have been unprincipled — "petty, and partisan, and disingenuous" — for him to vote against those nominees as a senator.

This is only coherent if Senator McCain is willing to say something like, "Here at Grade C is what I would call a merely qualified nominee to the Court, but I promise to hold my own nominations to Grade A standards." Yet throughout his speech, McCain rightly rails against the very kind of jurisprudence that is practiced by Justices Ginsburg and Breyer (among others), effectively identifying it with Grade F performance. Could that be seen coming when they were nominated? I think probably so.

Now I understand that Senator McCain is already looking forward to enjoying the presidential initiative in filling vacancies on the Supreme Court. May he romp to the victory that makes his anticipation a reality. But it is this anticipation, not any constitutionally principled obligation, that leads him to identify his votes for Ginsburg and Breyer as positive and obligatory goods, rather than "least bad" choices at the time (or, worse yet, lazy nonchalance at the time). He wants Democratic senators to respond to the same alleged imperative: "Gee, the nominee's qualified, and it's the president's call." If that helps, it is its own justification. But I would not call it anything like a principled obligation.

05/09 05:53 PM

Obama's Catholic Advisors   [Gerard V. Bradley]

Last week the indispensable Bill Donohue (President of the Catholic League for Religious and Civil Rights) published some disquieting facts about Senator Obama's "Catholic National Advisory Council". By letter dated yesterday the Committee fired back. Donohue's original press release took the measure of the 26 former or current public officials on the Committee (folks such as Senators Kennedy, Leahy, Dodd, Kerry). Yesterday's response was signed, however, by what appears to be the whole Committee — including academics and activists to whom Donohue did not explicitly refer.

Their letter asserts in its opening paragraph that Donohue "labeled many of our friends, and some of us, as 'Catholic dissidents' because we support Senator Obama". But Donohue asserted no such thing. Nowhere in his press release last week did Donohue say, imply, or suggest that supporting Barack Obama for President made one a Catholic dissident.

Donohue instead said, and proved upon the basis of published sources, that the public officials are "Catholic dissidents" — not "because" they support Obama, but because (as Donohue stated clearly) "not one [of them] agrees with the Catholic Church on all three major public policy issues: abortion, embryonic stem cell research and school vouchers". Donohue pointed out, for example, that "[o]f the 20 National Leadership Committee members with a NARAL score, 17 have earned a 100 percent rating. Of those who have less than a perfect score", Donohue also wrote, "not one is in favor of school vouchers".

Nowhere in their letter do Obama's Catholics address the claim Donohue actually made, or his evidence for it. And so Donohue's claim remains unrebutted: the public officials (at least) on Obama's Catholic Advisory Council are "Catholic dissidents".

05/09 02:20 PM

Mr. Franck's Neigborhood   [Gerard V. Bradley]

When Matt Franck says he prefers another neighborhood to mine on matters constitutional, I have to take a long hard look at where I live. Even more so when Matt moves on to where the redoubtable Shannen Coffin resides. So I am sobered by their disagreement with some of my analysis of McCain's judges' speech. I even agree, come to think of it, with Shannen and Matt that Senator McCain has, at times, been non-partisan to a fault on judges. ( I do not count the Gang of Fourteen in this category, however, as do Shannen and Matt.) I would have preferred to see more of the warrior in McCain and less of the peacemaker when he dealt with Scumer, Leahy & Co.

Now we are talking about President McCain, not Senator McCain. I think the main thing now is to take McCain's judges' speech as his pledge and determine to hold him to it. (I am on his Justice Advisory Committee and mean to do my share of the holding.) But it is worth noting, too, that I disagree with Matt's suggestion that Senator McCain's "deference to the President" position is "insupportable". Leave aside whether, all things considered, Senator McCain should have voted to confirm Ruth Ginsburg and/or Stephen Breyer. Call what we are talking about something other than "deference" if you wish. I submit that the norms or criteria according to which a President should select nominees for the bench differ from the norms and criteria according to which a Senator should decide to confirm (or oppose) the President's choices. It also seems to me that this difference — whatever exactly it is — amounts to deference: a Senator (such as John McCain) should vote to confirm some nominees which he would not have nominated from the Oval Office. Put differently: that a Senator (such as John McCain) would not himself have nominated, say, Stephen Breyer, is not by itself sufficient reason to vote against Breyer's confirmation.

05/09 02:14 PM