Bench Memos on National Review Online

Bench Memos on National Review Online http://bench.nationalreview.com National Review Online’s Bench Memos blog is devoted to judicial news, in particular news related to the Supreme Court and Constitutional law. en-us © National Review Online 2009. All Rights Reserved webmaster@nationalreview.com (NRO Webmaster) Sat, 07 Nov 2009 11:03:52 -0500 Sat, 07 Nov 2009 11:03:52 -0500 NRO RSS Generator v1.0 http://blogs.law.harvard.edu/tech/rss 5 http://www2.nationalreview.com/images/nro_rsslogo.jpg Bench Memos on National Review Online http://bench.nationalreview.com 144 80 National Review Online This Day in Liberal Judicial Activism-November 7 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ODNjZmQ0ZDU2YWFhMDRjZDIzOWYzNGYwZTE4YmE5OTA= 2000—So much for respecting a capital inmate’s final wishes. Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief. But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.” Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODNjZmQ0ZDU2YWFhMDRjZDIzOWYzNGYwZTE4YmE5OTA= Sat, 07 Nov 2009 08:00:00 -0400 Slim Pickings from the Federal Appellate Courts -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZjkwN2ZhNTYzZGYyYjVlZGZmOWEzMzY3MjUyMzcwOWI= 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 <a href="http://bench.nationalreview.com/post/?q=MDZjZThkOGE4YzA0NjU1N2E2Yjg0MTM1ZWQxNTc1OWM=">perilous pick</a>—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 <a href="http://www.fjc.gov/history/home.nsf/judges_frm">Biographical Directory of Federal Judges</a>. 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjkwN2ZhNTYzZGYyYjVlZGZmOWEzMzY3MjUyMzcwOWI= Fri, 06 Nov 2009 14:14:01 -0400 This Day in Liberal Judicial Activism-November 6 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZTM4ZTMwYzRkNWNkZWVhNWNiZWE0MjcxNDk1NjE2YjI= 2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit. Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it. In February 2004, President Bush recess-appoints Pryor to the seat. And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush appoints him to a lifetime seat. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZTM4ZTMwYzRkNWNkZWVhNWNiZWE0MjcxNDk1NjE2YjI= Fri, 06 Nov 2009 08:00:00 -0400 Short Memories -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=OTNhZWY3MWEzN2IyNjk1NzhkMzM4NGM2OTNiOGIyODU= The <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/11/05/AR2009110500687.html">AP takes a skeptical eye</a> to Democratic claims that Republicans are engaged in unprecedented obstruction of judicial nominees. <blockquote> 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. </blockquote> 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OTNhZWY3MWEzN2IyNjk1NzhkMzM4NGM2OTNiOGIyODU= Thu, 05 Nov 2009 08:40:59 -0400 This Day in Liberal Judicial Activism-November 5 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NTFiYTUyNzQwNGZjNDg1YjUyZDlhYzk3YzkzZjc5ODg= 1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine. In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent: “First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.” On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTFiYTUyNzQwNGZjNDg1YjUyZDlhYzk3YzkzZjc5ODg= Thu, 05 Nov 2009 08:00:00 -0400 Two NC Judges Nominated to Fourth Circuit -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=NTYxOGI0Y2M3ZTFhMDY3ZjllNjE4ZWZiYTM3NmYwNTE= 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 <a href="http://legaltimes.typepad.com/blt/2009/11/obama-nominates-two-from-nc-to-the-4th-circuit.html">here</a>, and the official White House release is <a href="http://www.whitehouse.gov/the-press-office/president-obama-nominates-judge-albert-diaz-and-judge-james-wynn-fourth-circuit-cou">here</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTYxOGI0Y2M3ZTFhMDY3ZjllNjE4ZWZiYTM3NmYwNTE= Wed, 04 Nov 2009 23:04:12 -0400 D.C. Conference on School Choice -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=N2ZkNzBjNTc0ZjgzNzkzYjA5ZGFjMzZlZTQ5ZGVjNjM= Next Monday, November 9, the <a href="http://www.amcsc.org/mission">American Center for School Choice</a> will hold its inaugural conference, “<a href="http://www.regonline.com/builder/site/Default.aspx?eventid=774689">School Choice and the American Family: A Moral and Civic Imperative</a>,” 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=N2ZkNzBjNTc0ZjgzNzkzYjA5ZGFjMzZlZTQ5ZGVjNjM= Wed, 04 Nov 2009 17:13:38 -0400 Election Fallout for Next Supreme Court Vacancy -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZjAzY2E2OTcwYmY0ODhjNjc4YzZkNTRkZjZiYjZkMjU= At her confirmation hearing this past July, now-Justice Sonia Sotomayor <a href="http://bench.nationalreview.com/post/?q=MTFiOTFhNzQxYjg0MDg4YjNkYjJmMDRkNDY5MjZiNjg=">exasperated and disgusted</a> many of her supporters on the Left by attempting to <a href="http://bench.nationalreview.com/post/?q=NmRhMDYxOTI2NTdiZmUzMzE4NDMwYjdlYjA1NTM3NzU=">disguise herself</a> 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 <a href="http://bench.nationalreview.com/post/?q=ZDRmZTk0NzM2MWI3ODhkZTRjZDBiYjMwODdiNDFiYjM=">very, very likely</a>) 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] <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjAzY2E2OTcwYmY0ODhjNjc4YzZkNTRkZjZiYjZkMjU= Wed, 04 Nov 2009 13:03:59 -0400 This Day in Liberal Judicial Activism-November 4 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MDA5NzUwZDc3NjY4OWNlZGIzOGFiNGExMTRlNmE1NTY= 1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues. 2008—In reaction against the California supreme court’s May 2008 decision <a title="http://www.eppc.org/publications/pubID.3402/pub_detail.asp" href="http://www.eppc.org/publications/pubID.3402/pub_detail.asp">inventing</a> a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MDA5NzUwZDc3NjY4OWNlZGIzOGFiNGExMTRlNmE1NTY= Wed, 04 Nov 2009 08:00:00 -0400 Supreme Court "Too Liberal" -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=N2FjYWVlODA4MWFiYTY2Mjc5YjI1NDZhZDQ3OTYwODk= Amidst the usual media blather about our <a href="http://bench.nationalreview.com/post/?q=MGJkZWQzNzgyOTc3NTVkNDFjNTNjMjhiN2Y0YjY4ZDE=">supposedly “conservative”</a> Supreme Court, a new <a href="http://www.rasmussenreports.com/public_content/politics/toplines/pt_survey_toplines/october_2009/toplines_supreme_court_october_22_23_2009">poll</a> 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 <a href="http://bench.nationalreview.com/post/?q=NTc3ZDJiNjMxNGNkMmRkM2MzN2ExMjUyMWFjMWIzNjI=">“empathy” standard</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=N2FjYWVlODA4MWFiYTY2Mjc5YjI1NDZhZDQ3OTYwODk= Tue, 03 Nov 2009 10:25:04 -0400 Pitt and Duquesne Events -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MTdhYjk1MjQxNTEyZTUwMTI0ZmQzZGM5ZjZmOWYzZWY= 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 <a href="http://www.facebook.com/event.php?eid=171318566536&ref=mf">here</a>.) The events are sponsored by the respective law school chapters of the Federalist Society. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MTdhYjk1MjQxNTEyZTUwMTI0ZmQzZGM5ZjZmOWYzZWY= Mon, 02 Nov 2009 10:16:38 -0400 The Trial Lawyers' Latest Target: Mutual Funds -- By: Paul Schott Stevens webmaster@nationalreview.com (Paul Schott Stevens) http://bench.nationalreview.com/post/?q=NGRkZDRhNWM2OGNkMTZiZmE5YWFhYzE1OGM1ODgxZWY= 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGRkZDRhNWM2OGNkMTZiZmE5YWFhYzE1OGM1ODgxZWY= Mon, 02 Nov 2009 09:00:09 -0400 This Day in Liberal Judicial Activism-November 2 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MjdhN2U1MzA4ZDYzMGVkYzcwMGQzM2RjMzE2MzI4ZWI= 2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity. The 10-member majority rests its conclusion on the combined force of facts that include: (1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds. Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack. But other means would have generated a currency-transaction report. (2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs. (3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds. (4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice. (5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York. (6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash. (7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping). Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.” Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjdhN2U1MzA4ZDYzMGVkYzcwMGQzM2RjMzE2MzI4ZWI= Mon, 02 Nov 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-October 31 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NTEyNzE2NzdmYTdkZDMxYTRhNWY5NjVmMjMzOTc0ZjI= 1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses. In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTEyNzE2NzdmYTdkZDMxYTRhNWY5NjVmMjMzOTc0ZjI= Sat, 31 Oct 2009 08:00:00 -0400 Stuart Taylor on Harold Koh's Threat to Free Speech -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OGE1YzRmZmFiYmQ0MmE4OTdiNTlkMTkyMjk5OTczYWQ= Stuart Taylor’s latest column, “Troubling Signals on Free Speech” (available <a href="http://www.nationaljournal.com/njmagazine/openingargument.php">here</a> 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 <a href="http://www.eppc.org/publications/pubID.3793/pub_detail.asp">here</a> (with additional related posts <a href="http://www.eppc.org/news/newsID.3810/news_detail.asp">here</a>). [Cross-posted on The Corner] <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OGE1YzRmZmFiYmQ0MmE4OTdiNTlkMTkyMjk5OTczYWQ= Fri, 30 Oct 2009 14:57:31 -0400 Obama Judicial Nominee Louis B. Butler Jr. -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZjA2Yjg3YjE1MzBmM2JiNzIxMjFlMTFkYTIyMDU5ZGI= One month ago, President Obama nominated former Wisconsin supreme court justice—and This Day <a href="http://bench.nationalreview.com/post/?q=MWQ1NjQwNWJlZDBiNDcwOWUxN2ZjMjk4ZTJiNzdhMDk=">honoree</a>—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 <a href="http://online.wsj.com/public/article_print/SB120735975782591721.html">called</a> “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 <a href="http://gop3.com/wp-content/uploads/2008/01/from-the-pen-of-justice-butler.pdf">here</a>, <a href="http://gop3.com/2008/03/29/calling-justice-butler-out-on-judicial-philosophy/">here</a>, and <a href="http://gop3.com/wp-content/uploads/2008/01/a-bibliography-of-criticism.pdf">here</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjA2Yjg3YjE1MzBmM2JiNzIxMjFlMTFkYTIyMDU5ZGI= Fri, 30 Oct 2009 14:25:30 -0400 More on Doug Kendall's Illusion -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NmZlZTMzOTE1ZTE1ZTBhNTZhNmE5MzQ0MzkyNzIyYmE= A follow-up to <a href="http://bench.nationalreview.com/post/?q=OGMwODkwYjQ5NGM2NWFiNDljNjY4ODc5YzAzMDkzZWY=">these</a> <a href="http://bench.nationalreview.com/post/?q=ODEwZTQ2ZTI3NjQ0MjM0NGE0YzdiZWYzZDI3MzgyMzk=">posts</a>: Doug Kendall has a further <a href="http://theusconstitution.org/blog.history/?p=1402">reply</a> 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.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NmZlZTMzOTE1ZTE1ZTBhNTZhNmE5MzQ0MzkyNzIyYmE= Fri, 30 Oct 2009 13:51:15 -0400 This Day in Liberal Judicial Activism-October 30 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OTY2MDJjYjM1NjFlMmQzNmE5NWZhOTgyMjg2ZTExYmM= 2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.” In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statements, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.” In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OTY2MDJjYjM1NjFlMmQzNmE5NWZhOTgyMjg2ZTExYmM= Fri, 30 Oct 2009 08:00:00 -0400 Senate Judiciary Committee Approves One More Nominee [CORRECTED] -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=ZTBiOWQ2ZDZiZTFlZjQyNTlmNTY1ZmQ2NjU5NTBlOGY= <a href="http://legaltimes.typepad.com/blt/2009/10/4th-circuit-nominee-gets-committee-backing.html">Legal Times' BLT reports</a> 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.] <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZTBiOWQ2ZDZiZTFlZjQyNTlmNTY1ZmQ2NjU5NTBlOGY= Thu, 29 Oct 2009 17:16:08 -0400 Re: Doug Kendall's Illusion -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ODEwZTQ2ZTI3NjQ0MjM0NGE0YzdiZWYzZDI3MzgyMzk= Doug Kendall has offered a <a href="http://theusconstitution.org/blog.history/?p=1394#more-1394">response</a> to my <a href="http://bench.nationalreview.com/post/?q=OGMwODkwYjQ5NGM2NWFiNDljNjY4ODc5YzAzMDkzZWY=">critique</a> 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.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODEwZTQ2ZTI3NjQ0MjM0NGE0YzdiZWYzZDI3MzgyMzk= Thu, 29 Oct 2009 11:11:56 -0400 Brown, Plessy, Whatever -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OWZhMjhhMTZiY2JjZWNjN2RmMWZkZWZmM2UyMjAyOWE= Given Justice Scalia’s longstanding position (set forth, among other places, in this New Yorker <a href="http://www.newamerica.net/publications/articles/2005/supreme_confidence">interview</a>) that the Court in Brown v. Board of Education reached the right result, I was surprised to see this <a href="http://politicalwire.com/archives/2009/10/27/scalia_would_have_voted_to_keep_school_segregation.html?utm_campaign=pwire&utm_medium=pwire.us-twitter&utm_source=twitter.com&utm_content=site-basic">summary</a> 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 <a href="http://tv.azpm.org/kuat/segments/2009/10/26/kuat-a-conversation-on-the-constitution/">video</a> 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—<a href="http://balkin.blogspot.com/2009/10/justice-scalia-comes-clean-on-brown-v.html">says</a>.) My own sketch of the originalist case for the result (not the reasoning) in Brown is <a href="http://www.eppc.org/programs/constitution/publications/pubID.2336,programID.39/pub_detail.asp">here</a>. [Cross-posted on The Corner] <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OWZhMjhhMTZiY2JjZWNjN2RmMWZkZWZmM2UyMjAyOWE= Tue, 27 Oct 2009 16:00:30 -0400 Doug Kendall's Illusion -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OGMwODkwYjQ5NGM2NWFiNDljNjY4ODc5YzAzMDkzZWY= I was surprised to read Doug Kendall’s <a href="http://www.slate.com/id/2233309">piece</a> 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 <a href="http://bench.nationalreview.com/post/?q=NmU2ZjY3NjA3YjE0ZGU1ZDEwYmU0MDVhZmYxN2E5Y2Y=">extraordinary measure</a> 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 <a href="http://www.crs.gov/Pages/Reports.aspx?ProdCode=RL33953">here</a>), 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 <a href="http://bench.nationalreview.com/post/?q=YzhlNzk3YjEyYmU3MmUxNjNmODE4NzFkYjM5OTU1NWU=">Anthony Trenga</a>, <a href="http://bench.nationalreview.com/post/?q=NGU5NGFjZTU5YjMxOWExMTI5ZWVmMWE0MGNlOWEwODM=">Mary Scriven</a>, and former Clinton nominee <a href="http://bench.nationalreview.com/post/?q=ODIyZWIxMWFhMjhjZGJlNTc5ODA5OTEzNThmNDAxOTc=">Christine Arguello</a>. 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 (<a href="http://bench.nationalreview.com/post/?q=MzNiMjgxMTYyNjc2NWEwMjdmZDlmZDI0OWM5YmQxZTI=">sometimes</a> 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 <a href="http://bench.nationalreview.com/post/?q=MzYxNmM0NjFlNmMxOTEwNTNiNzUyZTk4ZjU1NWRmYjg=">ran interference</a> 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 <a href="http://bench.nationalreview.com/post/?q=ZjcyMmNjY2E4ZTYzMGRlZmM3NTQ5Zjc3OWU4NTdlMDU=">here</a>, <a href="http://bench.nationalreview.com/post/?q=ZWE4YWU0NjEyYjAwYzkyN2JlNTIwYjU0ZTI3MjNkOGM=">here</a>, <a href="http://bench.nationalreview.com/post/?q=ZmRiZGVkYzZmZGFhMDM4MTE2ZmE1ZTMxOTAxM2RkNmM=">here</a>, <a href="http://bench.nationalreview.com/post/?q=ZDc4NmQ5ZjllNzBlM2ZlZDcxMjQ5Yzg2OWU5YTk0OGI=">here</a>, and <a href="http://bench.nationalreview.com/post/?q=NDM3YzBmYjIzNDgwNjdjM2E5MGFiZjRlZjY4N2M2ZWQ=">here</a>—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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OGMwODkwYjQ5NGM2NWFiNDljNjY4ODc5YzAzMDkzZWY= Tue, 27 Oct 2009 15:23:45 -0400 Gay Talese -- By: Kathryn Jean Lopez webmaster@nationalreview.com (Kathryn Jean Lopez) http://bench.nationalreview.com/post/?q=ZGE1MjVlNjMzZmM1Y2I1MTA0MjQzZTQxM2VjY2EwYjM= <a href="http://cityroom.blogs.nytimes.com/2009/10/26/pay-no-mind-to-the-next-table-its-just-the-chief-justice/">gets a taste of John Roberts.</a> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZGE1MjVlNjMzZmM1Y2I1MTA0MjQzZTQxM2VjY2EwYjM= Mon, 26 Oct 2009 18:50:00 -0400 Eric Holder's Pretense -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MzM4ZWI4MDhhMGRiNjIyYTk1YzBlNWNmMjFhYjY0MDE= Attorney General Eric Holder recently <a href="http://www.npr.org/templates/story/story.php?storyId=113840800&ps=rs">explained</a> 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 <a href="http://www.mainjustice.com/2009/10/20/meet-nicholas-klinefeldt/">MainJustice.com page</a> (registration required).) My point is not to contend that there is anything exceptional about Klinefeldt’s nomination. As I <a href="http://bench.nationalreview.com/post/?q=NjI0MTNkODU5NWZlMGU4YzZhY2IxM2VhZjc5MDRmZDE=">wrote</a> 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 <a href="http://www.weeklystandard.com/Content/Public/Articles/000/000/016/799hlime.asp">essay</a>, giving rise to “a growing concern that the Obama administration is politicizing the department in ways the Bush team never imagined.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MzM4ZWI4MDhhMGRiNjIyYTk1YzBlNWNmMjFhYjY0MDE= Mon, 26 Oct 2009 15:11:55 -0400 This Day in Liberal Judicial Activism-October 26 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZTUzMTEyZDExYTIxNGJlZWQyZDQzNzdmMDk1NGIyMjM= 2001—“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” declares Second Circuit judge Sonia Sotomayor. In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality. Implementing his promise—or, rather, threat—to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2008 makes Sotomayor his first pick for the Supreme Court. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZTUzMTEyZDExYTIxNGJlZWQyZDQzNzdmMDk1NGIyMjM= Mon, 26 Oct 2009 08:00:00 -0400 The Latest Dubious Judicial Nomination from the Obama Administration -- By: Roger Clegg webmaster@nationalreview.com (Roger Clegg) http://bench.nationalreview.com/post/?q=YzQ2YzM2ZjkwZGU5NzExYTViNjdmYjRlMzNjZDY4Yzk= The Washington Times <a href="http://www.washingtontimes.com/news/2009/oct/25/another-judicial-radical/">editorialized</a> yesterday against the nomination of Edward Chen to the Northern California federal district court.<a href="https://192.168.168.10/owa/redir.aspx?C=8e3d97ce65444cfa986c1e4b83d899a7&URL=http%3a%2f%2fwww.washingtontimes.com%2fnews%2f2009%2foct%2f25%2fanother-judicial-radical%2f" target="_blank"></a> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YzQ2YzM2ZjkwZGU5NzExYTViNjdmYjRlMzNjZDY4Yzk= Mon, 26 Oct 2009 07:59:51 -0400 This Day in Liberal Judicial Activism-October 25 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NGI5MDU0MDU5OGNmY2NlM2NkMWU5YjEzZGI5MzljZWM= 1957—No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery. What was that evidence? As Judge David L. Bazelon, in dissent, summarizes it: “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I'm coming in.’” Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.” “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”! In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery. 2006—Who knew that the Declaration of Independence was a declaration of same-sex marriage? Echoing the Declaration of Independence, the New Jersey constitution provides: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGI5MDU0MDU5OGNmY2NlM2NkMWU5YjEzZGI5MzljZWM= Sun, 25 Oct 2009 08:00:00 -0400 OLC Nominee Dawn Johnsen and Pre-Confirmation Etiquette -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZWFiMDY3ODcxZGRkMmQzYmZjZjA2NGY1YTAyNmYzZTM= 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZWFiMDY3ODcxZGRkMmQzYmZjZjA2NGY1YTAyNmYzZTM= Fri, 23 Oct 2009 08:21:51 -0400 This Day in Liberal Judicial Activism-October 23 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MTlhOWQ1ZDEzZTNkYzc2NDlmYTZjNTQzNTZlZjU1NTI= 1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MTlhOWQ1ZDEzZTNkYzc2NDlmYTZjNTQzNTZlZjU1NTI= Fri, 23 Oct 2009 08:00:00 -0400 Stevens to Retire? -- By: Kathryn Jean Lopez webmaster@nationalreview.com (Kathryn Jean Lopez) http://bench.nationalreview.com/post/?q=MWYzODQyOWU2OGU2OWNjYTM1NzhmMmU5YTM3OGMyODA= <a href="http://twitter.com/AP_Courtside">From AP Court Tweet feed: </a> <blockquote> 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 </blockquote> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MWYzODQyOWU2OGU2OWNjYTM1NzhmMmU5YTM3OGMyODA= Thu, 22 Oct 2009 12:03:46 -0400 This Day in Liberal Judicial Activism-October 22 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NzU2ZTcwOGE0YTI5NjJkOWZjZjgzYzdhY2FiMDEwMzE= 1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short. The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause. Undeterred, in Foster v. State Florida chief justice (and, since 1993, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation. Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution. And there are no apparent limits to the statistical evidence that she regards as relevant: “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.” Barkett’s approach would make the death penalty impossible. In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office. There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes. As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzU2ZTcwOGE0YTI5NjJkOWZjZjgzYzdhY2FiMDEwMzE= Thu, 22 Oct 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-October 21 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=M2FiZjQ1MjU1MmQ3NGU0MzRiMmI0NzExNWRlZGJkNWU= 1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status. On his death in 1993, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent: “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.” The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.” One testament to Bazelon’s craftsmanship: In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants. Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=M2FiZjQ1MjU1MmQ3NGU0MzRiMmI0NzExNWRlZGJkNWU= Wed, 21 Oct 2009 08:00:00 -0400 Re: Tokin' Federalism -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=MjAxNjNiZjMwNjE2ZDQ3NTU2ZGQ3YzMzNjJjMzVkNWM= Jonathan Adler's <a href="http://bench.nationalreview.com/post/?q=YjI0ZDNlZDFjZDAxNjI0ODU1Yjg4YzJhYjhiYjU3YTA=">response</a> to my <a href="http://bench.nationalreview.com/post/?q=MDQ3ZjA5ZTE2Nzg4ZTBiYjkzMmM3NzZhZmRiNDQzNTA=">original post</a> 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjAxNjNiZjMwNjE2ZDQ3NTU2ZGQ3YzMzNjJjMzVkNWM= Tue, 20 Oct 2009 21:45:48 -0400 Re: Tokin' Federalism -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=YjI0ZDNlZDFjZDAxNjI0ODU1Yjg4YzJhYjhiYjU3YTA= 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 <a href="http://corner.nationalreview.com/post/?q=Njg5YTc5NjQ0M2U4OTc5NzJjMjkwYjM0NzU0N2FkNTc=">here</a> and <a href="http://volokh.com/2009/10/19/a-step-toward-sanity-on-medical-marijuana/">here</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YjI0ZDNlZDFjZDAxNjI0ODU1Yjg4YzJhYjhiYjU3YTA= Tue, 20 Oct 2009 17:35:40 -0400 Tokin' Federalism -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=MDQ3ZjA5ZTE2Nzg4ZTBiYjkzMmM3NzZhZmRiNDQzNTA= I can't quite get my head around the NR editors' <a href="http://article.nationalreview.com/?q=YTlkYjg0MGQzNWE3MzVlNTE2ZTViNjAxNTlhNzI5OTc=">mixed reaction</a> 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MDQ3ZjA5ZTE2Nzg4ZTBiYjkzMmM3NzZhZmRiNDQzNTA= Tue, 20 Oct 2009 16:33:15 -0400 This Day in Liberal Judicial Activism-October 20 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ODdhOWU5YTQxOGY5YWMzMTYzOTZiZDRlZDM1ZWYzMTg= 2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODdhOWU5YTQxOGY5YWMzMTYzOTZiZDRlZDM1ZWYzMTg= Tue, 20 Oct 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-October 16 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MDk1MjBkMjkxYzliMTYxNWE3MjFlMDRiMWZmMWMzMDU= 1898—William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota. (See This Day entry for <a href="http://bench.nationalreview.com/post/?q=NDNkMjc2NmY1ZDk1MmZjZTNkMjZhYjhjNWIwYWQ1MDc=">April 4</a>, 1939, for Judge Richard A. Posner’s colorful summary of Douglas’s life and career.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MDk1MjBkMjkxYzliMTYxNWE3MjFlMDRiMWZmMWMzMDU= Fri, 16 Oct 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-October 15 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NzBkNjUzMzU4MmJiYmIwNjk5MjMwYzk2MDYxN2I1OTI= 1956—So much for basing Supreme Court selections on short-term political calculations. Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation. That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzBkNjUzMzU4MmJiYmIwNjk5MjMwYzk2MDYxN2I1OTI= Thu, 15 Oct 2009 08:00:00 -0400 Re: Protestants Losing the Diversity Game for Supreme Court Justices? -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OWJmNzA3MWVlNmNlY2Y0ODRiOTM5YjNiZDA3NWM4ZjE= As a follow-up to my recent <a href="http://bench.nationalreview.com/post/?q=M2ExM2YzMDE2ZmE5MjMwYjZhYzRjYmE4MTFiY2FhMGI=">post</a> on possible clamoring for the next Supreme Court nominee to be a Protestant, I’ll highlight this passage from Adam Liptak’s “<a href="http://www.nytimes.com/2009/10/10/us/10scotus.html?_r=3">Supreme Court Memo</a>” 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.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OWJmNzA3MWVlNmNlY2Y0ODRiOTM5YjNiZDA3NWM4ZjE= Wed, 14 Oct 2009 10:33:44 -0400 This Day in Liberal Judicial Activism-October 14 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZjdkOTFlNTU0MzEzODc1MmE4YzAxMTYxNjc1MzgwYTE= 1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections. In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.” On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjdkOTFlNTU0MzEzODc1MmE4YzAxMTYxNjc1MzgwYTE= Wed, 14 Oct 2009 08:00:00 -0400 Northwestern, Notre Dame, Stanford, and Boalt Events -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MTUyOTcyYmZhZTJhN2M2MzJjNTVjMDQyNTU2ZDdlMzk= 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MTUyOTcyYmZhZTJhN2M2MzJjNTVjMDQyNTU2ZDdlMzk= Tue, 13 Oct 2009 10:04:15 -0400 This Day in Liberal Judicial Activism-October 11 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NzU0Y2UxMjY5YjUxMzk5Y2M5MjlkYjMwY2QxMWVjMDk= 1990—In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional. In a brief dissent, Justice Rosemary Barkett, joined by Justice Gerald Kogan, asserts: “A basic legal problem with the criminalization of obscenity is that it cannot be defined.… Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.” Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.” But Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections. Nor does she recognize that there are any number of criminal laws—criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide—whose definition or application is not more objectively “obvious to all” than for obscenity. In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzU0Y2UxMjY5YjUxMzk5Y2M5MjlkYjMwY2QxMWVjMDk= Sun, 11 Oct 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-October 10 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OWU0YTdhZDNlMjAyMTBkMmY2NzNhZTkxM2M1MDg1ODY= 2008—By a vote of 4 to 3—with the decisive vote provided by a lower-court judge who, as a result of <a title="http://www.ctlawtribune.com/getarticle.aspx?id=31937" href="http://www.ctlawtribune.com/getarticle.aspx?id=31937">two curious recusals</a>, was sitting in for the chief justice—the Connecticut supreme court, in Kerrigan v. Commissioner of Public Health, invents a right to same-sex marriage under the state constitution. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OWU0YTdhZDNlMjAyMTBkMmY2NzNhZTkxM2M1MDg1ODY= Sat, 10 Oct 2009 08:00:00 -0400 Instead of Pres. Obama's Nobel Acceptance, -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=ZWM5Nzc3NDY0NGIyZDUwNTRiZDg5MzI0N2RlMmEyMmM= I'd rather watch Justice Clarence Thomas give a speech about the greatness of Abraham Lincoln. Fortunately, Justice Thomas <a href="http://www.youtube.com/watch?v=cLUJYFVINk8">gave a wonderful speech</a> 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! <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZWM5Nzc3NDY0NGIyZDUwNTRiZDg5MzI0N2RlMmEyMmM= Fri, 09 Oct 2009 18:20:08 -0400 This Day in Liberal Judicial Activism-October 9 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YTdhNGFjZmVmODNhOGYxYzQ0OTUxZmU5NzZmZDA0ZWM= 1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town. When he returned a couple months later, Williams had begun a new relationship. Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her. He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.” On October 8, he visited Williams, who then called the police in fear. If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett. (Congratulations, by the way.) Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Justice Barkett, joined by Justice Gerald Kogan, complains: “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YTdhNGFjZmVmODNhOGYxYzQ0OTUxZmU5NzZmZDA0ZWM= Fri, 09 Oct 2009 08:00:00 -0400 Protestants Losing the Diversity Game for Supreme Court Justices? -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=M2ExM2YzMDE2ZmE5MjMwYjZhYzRjYmE4MTFiY2FhMGI= I very much share Chief Justice Roberts’s <a href="http://bench.nationalreview.com/post/?q=MTA1NzY1YWQwYjZlMTgzNjNmYzNiMTZmNDY0Y2NiYzI=">sentiment</a> 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 <a href="http://bench.nationalreview.com/post/?q=NTBkYmY4YjVlNGFjMGI5MTFiOWJiMzEzMjZmYmQzNjM=">event</a> 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 <a href="http://www.law.harvard.edu/media/2009/10/01/fs.mp4">here</a>. 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=M2ExM2YzMDE2ZmE5MjMwYjZhYzRjYmE4MTFiY2FhMGI= Thu, 08 Oct 2009 16:47:46 -0400 This Day in Liberal Judicial Activism-October 8 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YWFiNTJjYTI2OWU0YTQ5OTQ3OWFiYjg0Y2Q5Y2Q5ODQ= 2006—New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” According to Calame, Greenhouse defends these remarks as “‘statements of fact’—not opinion—that would be allowed to appear in a Times news article.” Calame forcefully condemns Greenhouse’s ethical violation: “[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions…. Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining…. Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YWFiNTJjYTI2OWU0YTQ5OTQ3OWFiYjg0Y2Q5Y2Q5ODQ= Thu, 08 Oct 2009 08:00:00 -0400 Can Mush Be "Dismantled"? -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OTE0NzYyOWE2MzczYzU2OWY3MzUxMTkxMGRiYWYwYjU= According to this USA Today <a href="http://www.usatoday.com/news/washington/judicial/2009-10-05-sandra-day-oconnor_N.htm">article</a>, 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 <a href="http://www.eppc.org/publications/pubID.2907/pub_detail.asp">sound exercise of judicial restraint</a> 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OTE0NzYyOWE2MzczYzU2OWY3MzUxMTkxMGRiYWYwYjU= Tue, 06 Oct 2009 13:26:25 -0400 Cass Sunstein's "Zombie Constitution" -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ODg5Yzc0ZjU5YjY0MGY1ZWZlN2M4YWM4YTIyNzUyZjY= In Policy Review, Steven Menashi, an Olin/Searle fellow at Georgetown law school, offers a withering <a href="http://www.hoover.org/publications/policyreview/61152837.html">critique</a> 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 <a href="http://www.eppc.org/programs/constitution/publications/pubID.2459,programID.39/pub_detail.asp">reviewed</a> 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODg5Yzc0ZjU5YjY0MGY1ZWZlN2M4YWM4YTIyNzUyZjY= Tue, 06 Oct 2009 11:26:08 -0400 Heritage Foundation Event on Judicial Activism -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MWU5NGViYmI3NjNkYTVmYTY3ZTA5M2RlYjNkODg5MjM= 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 <a href="http://www.heritage.org/press/events/ev100809a.cfm">here</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MWU5NGViYmI3NjNkYTVmYTY3ZTA5M2RlYjNkODg5MjM= Tue, 06 Oct 2009 10:23:00 -0400 The Cry for Justice -- By: Kathryn Jean Lopez webmaster@nationalreview.com (Kathryn Jean Lopez) http://bench.nationalreview.com/post/?q=NGZkZjY5OWFhYmY0YzU1NmI2ZmYwMmU2ODViOTNiNDg= The homilist at the annual Red Mass Sunday said, in part: <blockquote> 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. </blockquote> More <a href="http://whispersintheloggia.blogspot.com/2009/10/word-meets-us-it-also-judges-us.html">here</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGZkZjY5OWFhYmY0YzU1NmI2ZmYwMmU2ODViOTNiNDg= Tue, 06 Oct 2009 07:54:11 -0400 This Day in Liberal Judicial Activism-October 5 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YTI3YTQ2ODFkOGNhYzg4ZjQ2Y2MxZTkzYzVmMDU3YzU= 1995—In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions—and “all government officials and employees during the performance of government business”—“shall act in English.” In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages. Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.” Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”: “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.” Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures. Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Arizona) shows. In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit: “The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.” Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains. First, the cause of action under which the plaintiff sued creates no remedy against a state. Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor. Ginsburg notes this “lapse” in Reinhardt’s reasoning: “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.” In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona supreme court’s authoritative reading of the provision. Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes: “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YTI3YTQ2ODFkOGNhYzg4ZjQ2Y2MxZTkzYzVmMDU3YzU= Mon, 05 Oct 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-October 2 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MmY5YzFiNjUxNjBiMjFlOWE0MDQwOTI4ZmYzYjY3ZjI= 1953—Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California governor Earl Warren as Chief Justice. In January 1954, Eisenhower nominates Warren to hold that office “during good Behaviour,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969. Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MmY5YzFiNjUxNjBiMjFlOWE0MDQwOTI4ZmYzYjY3ZjI= Fri, 02 Oct 2009 08:00:00 -0400 Thinking About Law School? Think Again! -- By: Kathryn Jean Lopez webmaster@nationalreview.com (Kathryn Jean Lopez) http://bench.nationalreview.com/post/?q=MWM5OTZlN2MxNzQ2OGI5NmMxNmMzYzhkNWQ2MDA0YzE= <a href="http://blogs.wsj.com/law/2009/10/01/scalia-we-are-devoting-too-many-of-our-best-minds-to-lawyering/?mod=wsj_share_twitter">Justice Scalia: </a> <blockquote> 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. </blockquote> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MWM5OTZlN2MxNzQ2OGI5NmMxNmMzYzhkNWQ2MDA0YzE= Thu, 01 Oct 2009 16:32:47 -0400 This Day in Liberal Judicial Activism-October 1 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NDkzODgxMmFhMTVkNTUzYmJhZDk5MTRlYTg0ZGEzYmY= 2008—The Supreme Court denies the state of Louisiana’s petition for rehearing in Kennedy v. Louisiana, the case in which the Court held, by a 5-4 vote, that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the state’s petition for rehearing was the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized military courts to impose the death penalty for child rape. The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape. Chief Justice Roberts and Justice Scalia—both dissenters from the original ruling—vote against rehearing on the ground that the majority was just making it up all along anyway. As Scalia puts it, in an opinion that Roberts joins: I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NDkzODgxMmFhMTVkNTUzYmJhZDk5MTRlYTg0ZGEzYmY= Thu, 01 Oct 2009 08:00:00 -0400 Court Grants Review of Second-Amendment Incorporation Question -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NGRiMWYyNGVjMzZiNWMzNWY3NjVkZTUyNDQ4MWNjMjY= 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 <a href="http://article.nationalreview.com/print/?q=MzMyMTIzMTg5MmFhNGQ5MDgzOGIxYzNiNzE4N2M2NzQ=">piece</a> from a couple weeks ago and a Wall Street Journal <a href="http://online.wsj.com/article/SB125417630049247539.html">article</a> from yesterday. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGRiMWYyNGVjMzZiNWMzNWY3NjVkZTUyNDQ4MWNjMjY= Wed, 30 Sep 2009 10:38:24 -0400 The Court's Shrinking Docket -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MDhiOWMwMGYwNTNhNWIzZThiMmFhNWRiZGJkNzMyYjk= Why the sharp reduction in the Supreme Court’s caseload since the 1980s? In the New York Times, Adam Liptak <a href="http://www.nytimes.com/2009/09/29/us/29bar.html?_r=1&pagewanted=print">calls attention</a> to a new (and refreshingly brief) <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1476537">paper</a> 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.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MDhiOWMwMGYwNTNhNWIzZThiMmFhNWRiZGJkNzMyYjk= Tue, 29 Sep 2009 11:20:32 -0400 Harvard Law School Event -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NTBkYmY4YjVlNGFjMGI5MTFiOWJiMzEzMjZmYmQzNjM= 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTBkYmY4YjVlNGFjMGI5MTFiOWJiMzEzMjZmYmQzNjM= Tue, 29 Sep 2009 10:28:10 -0400 This Day in Liberal Judicial Activism-September 29 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=M2QwNzgyODQwNjA2Y2E2M2E3NGZhOTEzZGExYWM0ZjE= 1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy. The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.” Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has <a title="http://balkin.blogspot.com/2006/08/larry-tribe-on-aba-signing-statements.html" href="http://balkin.blogspot.com/2006/08/larry-tribe-on-aba-signing-statements.html">acknowledged</a>, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn't implied by the power of judicial review as recognized in Marbury v. Madison.” Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address: “[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=M2QwNzgyODQwNjA2Y2E2M2E3NGZhOTEzZGExYWM0ZjE= Tue, 29 Sep 2009 08:00:00 -0400 Misunderstanding the Court -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MGJkZWQzNzgyOTc3NTVkNDFjNTNjMjhiN2Y0YjY4ZDE= Slate’s Dahlia Lithwick <a href="http://www.slate.com/id/2229517/">complains</a> 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 <a href="http://www.examiner.com/x-7812-DC-SCOTUS-Examiner~y2009m9d26-Biased-press-coverage-of-Supreme-Court-aids-Obama-and-Democrats">response</a> to Lithwick. (Update: At the Volokh Conspiracy, Jonathan Adler also <a href="http://volokh.com/2009/09/28/the-roberts-courts-hidden-heart-of-darkness/">takes issue</a>, in detail, with “Lithwick’s caricature.”) Lithwick maintains that the “Roberts Court”—the Court that issued such rulings as, say, <a href="http://article.nationalreview.com/?q=YzI5MTg1OGZjZWRkYmE0MmJhZjUxOGEwMDIxNzYyMzE=">Boumediene v. Bush</a> (aliens detained at Guantanamo as enemy combatants have a constitutional right to challenge their detention through a habeas corpus proceeding in federal court) and <a href="http://bench.nationalreview.com/post/?q=MWMzNDBlNTk0YmQ1MWVmNTVhNDZlNWM5MjhmMGI1Njk=">Kennedy v. Louisiana</a> (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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MGJkZWQzNzgyOTc3NTVkNDFjNTNjMjhiN2Y0YjY4ZDE= Mon, 28 Sep 2009 11:17:11 -0400 Harvard Hates the Constitution -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=Zjk1NTE4MTc5ZGZiNDllNjcwYzc3YjJjNGQyNTM1ODU= 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 <a href="http://media.www.hlrecord.org/media/storage/paper609/news/2009/09/24/News/222-Years.Later.Constitution.Scholars.Find.Little.To.Celebrate.In.Founding.Docum-3782327.shtml">reported by the Harvard Law Record</a>, 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: <blockquote> "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." </blockquote> 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=Zjk1NTE4MTc5ZGZiNDllNjcwYzc3YjJjNGQyNTM1ODU= Sun, 27 Sep 2009 10:23:00 -0400 This Day in Liberal Judicial Activism-September 26 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZmExZDRlMTgxMmY4YjBlNGNhNWNlM2JhZmJmMWI4M2Y= 2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship. (See <a title="http://article.nationalreview.com/?q=MTk5OTZkZTY2N2JkZmQ5NDgyNjAwZjAxZDE0ZjY3Yzc=" href="http://article.nationalreview.com/?q=MTk5OTZkZTY2N2JkZmQ5NDgyNjAwZjAxZDE0ZjY3Yzc=">here</a> for documentation.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZmExZDRlMTgxMmY4YjBlNGNhNWNlM2JhZmJmMWI4M2Y= Sat, 26 Sep 2009 08:00:00 -0400 Michael Stokes Paulsen on International Law -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZTRiOTI0YTM2ZjE2OWU5NWVmYzIzNDM0ZGYyMzAzNWU= Via <a href="http://opiniojuris.org/2009/09/25/peggy-replies-to-professor-paulsen/">Opinio Juris</a>, 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 <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396748">here</a>). 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZTRiOTI0YTM2ZjE2OWU5NWVmYzIzNDM0ZGYyMzAzNWU= Fri, 25 Sep 2009 14:47:32 -0400 Ginsburg Hospitalized -- By: NRO Staff webmaster@nationalreview.com (NRO Staff) http://bench.nationalreview.com/post/?q=MTExMDc0NmJlZmE0NjgzNDU5MzIyMjBlNzg2MGQzMzU= <blockquote> <a href="http://www.washingtontimes.com/news/2009/sep/25/justice-ginsburg-hospitalized-after-feeling-faint/?feat=home_headlines">WASHINGTON (AP) </a>-- 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. </blockquote> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MTExMDc0NmJlZmE0NjgzNDU5MzIyMjBlNzg2MGQzMzU= Fri, 25 Sep 2009 05:27:38 -0400 More Signing-Statement Curiosities -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MjIxYTI2YzhlZmRkNDExMzJhOGM0NmIyNmQ1ZDBiNGQ= As I <a href="http://www.eppc.org/programs/constitution/publications/pubID.2673,programID.39/pub_detail.asp">explained</a> three years ago, the <a href="http://bench.nationalreview.com/post/?q=NjA0YTAzM2JmYzg3NmUyMThkYjRjNmRhNDRlYzUxN2M=">signatories</a> 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 <a href="http://www.abanet.org/op/signingstatements/aba_final_signing_statements_recommendation-report_7-24-06.pdf">report</a> 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 <a href="http://www.nytimes.com/2009/09/16/us/politics/16justice.html?_r=1&pagewanted=print">reported</a> (and as I discussed <a href="http://bench.nationalreview.com/post/?q=ZmEyMDcwYzFkOWNkNDAyYjMxZGUzZTJkMjViZDAxM2M=">here</a>), 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 <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/09/23/AR2009092304427.html">article</a> 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.] <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjIxYTI2YzhlZmRkNDExMzJhOGM0NmIyNmQ1ZDBiNGQ= Thu, 24 Sep 2009 16:35:02 -0400 "The Case Against Boies-Olson" -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZGQ0YjA5N2IyYThkOTc3NzRmZDUwNTI4ZGMyM2NiY2Y= On NRO, George Mason law professor Nelson Lund has an excellent <a href="http://article.nationalreview.com/print/?q=MmI0NWU2ZTU4ZGJlNDUwYWZjNzI4MzFmZjYwMDA1MGY=">essay</a> 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 <a href="http://bench.nationalreview.com/post/?q=MmI3YWVkYWQwZTUyNTVkNjZlMDEwNzBjMmExYTdiNjE=">post</a> responding to the arguments—or, rather, assertions—that Boies made in a Wall Street Journal op-ed.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZGQ0YjA5N2IyYThkOTc3NzRmZDUwNTI4ZGMyM2NiY2Y= Thu, 24 Sep 2009 13:43:00 -0400 This Day in Liberal Judicial Activism-September 24 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZDEwYTdmZDZmNTc1ZGVkMzVmNTJhNDk0N2YzNzAwZWM= 1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices: “The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.… “Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.” 1993—President Clinton nominates This Day Hall-of-Famer <a title="http://bench.nationalreview.com/post/?q=MDdiOGRhNTFiMmZkMmY0NTRhMWE2NGMyMzEyYWFmZmY=" href="http://bench.nationalreview.com/post/?q=MDdiOGRhNTFiMmZkMmY0NTRhMWE2NGMyMzEyYWFmZmY=">Rosemary Barkett</a>, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDEwYTdmZDZmNTc1ZGVkMzVmNTJhNDk0N2YzNzAwZWM= Thu, 24 Sep 2009 08:00:00 -0400 Ban the New York Times? -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MmRjNWNlNTljZDNlNWNmMzI2NzUzYWUxMzQ5YmFiNDQ= In an <a href="http://www.nytimes.com/2009/09/22/opinion/22tue1.html?ref=opinion&pagewanted=print">editorial</a> 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 (<a href="http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253637850">here</a> and <a href="http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253638695">here</a>), 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MmRjNWNlNTljZDNlNWNmMzI2NzUzYWUxMzQ5YmFiNDQ= Tue, 22 Sep 2009 13:22:35 -0400 This Day in Liberal Judicial Activism-September 22 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MjMyNDRhNjQ4YWIyOTRmM2FkZjE2ZjY2NDMwODI5NDU= 2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “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.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjMyNDRhNjQ4YWIyOTRmM2FkZjE2ZjY2NDMwODI5NDU= Tue, 22 Sep 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-September 19 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZjJjNzM3Mzc0Y2IxMGNjNDRjZjhlY2JlMDU4ZDlkOTk= 1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple examples of Mikva’s creative opinions: In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote. In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting). <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjJjNzM3Mzc0Y2IxMGNjNDRjZjhlY2JlMDU4ZDlkOTk= Sat, 19 Sep 2009 08:00:00 -0400 Re: Campaign Finance and Precedent -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=N2UyNjUyZmRhNTUzYmM1OTY0ZDVjNDI1Y2RjOGQ1YTA= <a href="http://bench.nationalreview.com/post/?q=ZGVmZWRhZTdlMjUxMTVmZGY0ZTJjZTlkYmI1ZTI3NTc=">Further reason</a> 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 <a href="http://electionlawblog.org/archives/014156.html">post</a> 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 <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=424&invol=1">Buckley v. Valeo</a> 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, <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=435&invol=765">First National Bank of Boston v. Bellotti</a>, 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 <a href="http://electionlawblog.org/archives/013971.html">here</a>, 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=N2UyNjUyZmRhNTUzYmM1OTY0ZDVjNDI1Y2RjOGQ1YTA= Fri, 18 Sep 2009 14:31:57 -0400 Gerard Lynch Confirmed -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=MGM1ZjNjMWFmMmJkOWU0MjZkMTMxYTAwMDQ4NjZiNzY= 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 <a href="http://legaltimes.typepad.com/blt/2009/09/obama-set-for-first-win-among-circuit-nominees.html">here</a>. Judge Lynch is the first of President Obama's appellate nominees to be confirmed by the Senate. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MGM1ZjNjMWFmMmJkOWU0MjZkMTMxYTAwMDQ4NjZiNzY= Thu, 17 Sep 2009 17:18:02 -0400 A Child of Fortune -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=YWQxMWFlMjc4NzRmZTIwMjhiOTdmNzFmMGFiNmUyODg= 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. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YWQxMWFlMjc4NzRmZTIwMjhiOTdmNzFmMGFiNmUyODg= Thu, 17 Sep 2009 11:35:59 -0400 A Resignation over Judicial Pay -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MTU0ZmY1NDM0NjRlZTMxYzc1Zjk4MWNhNDYxNzg0MDk= According to this National Law Journal <a href="http://www.law.com/jsp/nlj/PubArticlePrinterFriendlyNLJ.jsp?id=1202433864906">article</a>, 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 <a href="http://bench.nationalreview.com/post/?q=Yzc0ODljN2E0OTQ4OGM1MGI2ZDFjOTY2NWQ4ZTMwNGY=">post</a>, 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 <a href="http://www.opm.gov/oca/09tables/indexGS.asp">executive-branch model</a>, 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.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MTU0ZmY1NDM0NjRlZTMxYzc1Zjk4MWNhNDYxNzg0MDk= Thu, 17 Sep 2009 10:57:23 -0400 This Day in Liberal Judicial Activism-September 17 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MjE3NTU4Nzk1NjA3N2VmN2ZiYzkzNzRlMWNiMTk0Nzg= A mixed day for the Constitution: 1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…” 1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. As a justice, Souter misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjE3NTU4Nzk1NjA3N2VmN2ZiYzkzNzRlMWNiMTk0Nzg= Thu, 17 Sep 2009 08:00:00 -0400 Campaign Finance and Precedent -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZGVmZWRhZTdlMjUxMTVmZGY0ZTJjZTlkYmI1ZTI3NTc= There seems to be a flurry of commentary on the Left arguing that Chief Justice Roberts would be betraying his supposed confirmation testimony on precedent if he were to vote to overrule the Court’s holdings on corporate speech in Austin v. Michigan State Chamber of Commerce and McConnell v. FEC. (One example is E.J. Dionne’s recent <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/09/06/AR2009090601188.html">column</a>, which Hans von Spakovsky has already <a href="http://bench.nationalreview.com/post/?q=Yjg2MWMyYzM5NzE0ODA2NTQ5NzRmOGJkYmM1YzFkMWU=">addressed</a>.) Ditto for Justice Alito. Such commentary strikes me as a not-so-subtle effort to intimidate Roberts and Alito: Rule the wrong way, the implicit threat goes, and we’ll accuse you of perjury. But as this Daily Journal <a href="http://pda-appellateblog.blogspot.com/2009_09_01_archive.html#1495937048976957456">article</a> puts it, “a close reading of the confirmation hearing transcripts shows that Roberts and Alito … left themselves plenty of wiggle room when it comes to re-appraising old cases they disagree with.” (I made much the same point about Roberts’s testimony on Roe in this <a href="http://www.eppc.org/publications/pubID.2444/pub_detail.asp">essay</a>.) The article quotes law professor, and election-law expert, Rick Hasen—who opposes the overruling of the Austin and McConnell holdings—as acknowledging that “there are no statements that either made [in their confirmation testimony] that boxes them in.” (Oddly, the article at one point purports to paraphrase Roberts as having said that overruling precedent “should be avoided unless absolutely necessary.” So far as I’m aware, that’s not an accurate paraphrase.) If the holdings in Austin and McConnell were wrong, is there really any serious argument that they shouldn’t be overruled? (I haven’t studied, and therefore am not taking a position here on, whether the holdings in Austin and McConnell were wrong; I’m limiting myself to the question of overruling them if they are wrong.) Surely, a “plus” factor that would seem to weigh overwhelmingly in favor of overruling is that those precedents (again, on the arguendo assumption that they’re wrong) would, if left in place, operate to permit the ban in perpetuity of a category of political speech at the core of the First Amendment. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZGVmZWRhZTdlMjUxMTVmZGY0ZTJjZTlkYmI1ZTI3NTc= Wed, 16 Sep 2009 11:28:59 -0400 President Obama's Lawlessness? -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZmEyMDcwYzFkOWNkNDAyYjMxZGUzZTJkMjViZDAxM2M= Back when President George W. Bush was implementing his understanding of executive-branch prerogatives, many critics who should have known better (including the <a href="http://bench.nationalreview.com/post/?q=NjA0YTAzM2JmYzg3NmUyMThkYjRjNmRhNDRlYzUxN2M=">signatories</a> to the ABA’s <a href="http://www.eppc.org/publications/pubID.2673/pub_detail.asp">risible report</a> on presidential signing statements) went far beyond contesting the substantive positions that Bush adopted and <a href="http://bench.nationalreview.com/post/?q=Mzk2NDY0OWY2YTdjZTYwZWVlMDg1MzJlMzljYThlNDY=">denied</a> even the president’s authority to determine which provisions of law he could constitutionally enforce or decline to enforce. Today’s New York Times <a href="http://www.nytimes.com/2009/09/16/us/politics/16justice.html?_r=1&pagewanted=print">reports</a> that President Obama, following through on a position taken in a signing statement in March and acting consistent with constitutional <a href="http://www.usdoj.gov/olc/2009/section7054.pdf">advice</a> from the Justice Department’s Office of Legal Counsel, 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.” (More precisely, the law forbids the use of appropriated funds for such purpose.) On a quick review of the OLC opinion, I see no reason to doubt that President Obama is acting lawfully in this matter. Surely, though, the ABA and the signatories to its report on signing statements must be vigorously condemning what they must regard as Obama’s lawlessness, right? Indeed, shouldn’t we expect that current State Department legal adviser Harold Koh—one of the signatories—will forthwith resign his position in protest? Oh, wait. That was Bush. This is Obama. How could I have overlooked that point of principle? <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZmEyMDcwYzFkOWNkNDAyYjMxZGUzZTJkMjViZDAxM2M= Wed, 16 Sep 2009 10:41:05 -0400 Constitution Day Events in D.C. -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MGIwMjI2MmM5MDA1OGQxMGQ2N2I2ZDE3NjZkNTM0ZTk= This Thursday, September 17, is Constitution Day—the 222nd anniversary of the Constitutional Convention’s unanimous 1787 resolution that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…” To mark the occasion, two of the nation’s most outstanding constitutional thinkers will deliver lectures in D.C., both of which I hope to attend. At noon at the Heritage Foundation, Charles R. Kesler, editor of the Claremont Review of Books, will present a lecture titled “<a href="http://www.heritage.org/press/events/ev091709a.cfm">Picture of Silver, Apple of Gold: Withstanding the Assault on America’s Constitutional Principles</a>.” At 5:00, Stanford law professor (and former Tenth Circuit judge) Michael W. McConnell will cap the Cato Institute’s <a href="http://www.cato.org/events/ccs2009/index.html">day-long celebration</a> of Constitution Day with his lecture “Natural Rights and the Effect of Partial Enumeration.” Addendum: Let me also highlight the lecture—“<a href="http://events.georgetown.edu/events/index.cfm?Action=View&CalendarID=574&EventID=68853">Is the Constitution Relevant Today?</a>”—that former Attorney General (and great champion of originalism) Ed Meese will deliver at Georgetown University at 5:00. The lectured is sponsored by Georgetown’s Tocqueville Forum. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MGIwMjI2MmM5MDA1OGQxMGQ2N2I2ZDE3NjZkNTM0ZTk= Tue, 15 Sep 2009 10:56:51 -0400 Justice Keenan for Fourth Circuit -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=ODk4YmYwZTY5ZjdlMDQ4NTEzMGFmMDc5MmY1MTQwOGE= President Obama has nominated Virginia Supreme Court Justice <a href="http://en.wikipedia.org/wiki/Barbara_Milano_Keenan">Barbara Milano Keenan</a> to a seat on the U.S. Court of Appeals for the Fourth Circuit, <a href="http://blogs.cqpolitics.com/legal_beat/2009/09/obama-taps-virginia-justice-for-4th-circuit.html">CQ's Legal Beat reports</a>. Justice Keenan, who had been <a href="http://valawyersweekly.com/vlwblog/2009/06/02/senators-recommend-justice-keenan/">pushed by both of Virginia's Senators</a>, is only the second Obama appellate nominee who is not a sitting district court judge, though she obviously has judicial experience. Indeed, Jsutice Keenan is apparently one of only two judges to have served in every level of Virginia's judiciary. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODk4YmYwZTY5ZjdlMDQ4NTEzMGFmMDc5MmY1MTQwOGE= Mon, 14 Sep 2009 19:00:23 -0400 The Upcoming Supreme Court Term -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MjJkYjliYzkwYmE2OTU0ZjE0MGQzMGQ2N2E5YmUyYjA= On NRO today, Jonathan Adler has an interesting <a href="http://article.nationalreview.com/print/?q=MzMyMTIzMTg5MmFhNGQ5MDgzOGIxYzNiNzE4N2M2NzQ=">preview</a> of the upcoming term of the Supreme Court. (Of course, as Jonathan notes, there are still more cases to be added to the Court’s docket, and it’s often difficult to predict which cases will sizzle and which will fizzle.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjJkYjliYzkwYmE2OTU0ZjE0MGQzMGQ2N2E5YmUyYjA= Mon, 14 Sep 2009 14:42:39 -0400 This Day in Liberal Judicial Activism-September 12 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YWU3ZGM2Nzc2Yzg2YjViYzVlMTk0NTE4MjdkM2YxYTM= 2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YWU3ZGM2Nzc2Yzg2YjViYzVlMTk0NTE4MjdkM2YxYTM= Sat, 12 Sep 2009 08:00:00 -0400 Defense of Marriage in California -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=M2VlOThlMzM3NGY1MzZiYmQ2OGI2Yzk4Njg3MjJkZjM= For those interested in following closely the defense of California’s Proposition 8 against the assault being waged by Ted Olson and David Boies, <a href="http://cooperkirk.com/brief.php?brief_id=28">here</a> is the brief in support of summary judgment that Charles J. Cooper and his co-counsel have filed. I haven’t read the entire brief, but from the parts I have read, it strikes me as an excellent piece of work. The motion is scheduled to be heard in federal district court on October 14. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=M2VlOThlMzM3NGY1MzZiYmQ2OGI2Yzk4Njg3MjJkZjM= Fri, 11 Sep 2009 17:34:31 -0400 McConnell vs. Dworkin on Sotomayor and "Fidelity to Law" -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ODg5Yzc3Zjc0YmRhNzY2NmYxYzg1ZDk4ZjQwNjJmNDk= Two new essays by leading legal academics—a conservative and a liberal—nicely frame the debate over Justice Sotomayor’s confirmation testimony and President Obama’s <a href="http://bench.nationalreview.com/post/?q=NTc3ZDJiNjMxNGNkMmRkM2MzN2ExMjUyMWFjMWIzNjI=">“empathy” standard</a> for selecting Supreme Court justices. Let’s start with the liberal, NYU law professor Ronald Dworkin. In an <a href="http://www.nybooks.com/articles/23052">essay</a> in the New York Review of Books, Dworkin observes that Sotomayor’s confirmation hearing “could … have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public.” But, alas, Sotomayor “destroyed any possibility of that benefit” by her repeated insistence that “her constitutional philosophy is very simple: fidelity to the law.” According to Dworkin: That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. In Dworkin’s view (which he sets forth only briefly in this essay but which he has advocated much more fully elsewhere), key constitutional provisions “are drafted in abstract moral language.” The effort by the “conservative theory” of originalism to escape this reality “can itself be defended only by appealing to highly controversial political principles about the nature of democracy and about the role of intention in constitutional interpretation.” And originalism “is unhelpful anyway because the authors of the abstract clauses almost certainly intended to say what their words naturally mean”: “The clauses, read literally, … require interpreters to develop what they believe to be the best theory of equal citizenship.” (Emphasis added.) Therefore, a “genuine constitutional philosophy” “must include some at least rough theory about the best conception of democracy, including the best understanding of the individual rights that must be secured by law, as a matter of justice, if government by majority rule is to be fair.” In sum, Dworkin decries the “foolish myth” that “judges’ own political principles,” “moral opinions,” and “personal convictions” are irrelevant to the task of constitutional adjudication” (even as he states that Sotomayor was “well advised to embrace that myth” in order to smooth her already virtually certain path to confirmation). Stanford law professor (and former Tenth Circuit judge) Michael W. McConnell offers a very different take in the course of his essay in the October 2009 issue of First Things reviewing Philip Hamburger’s outstanding book <a href="http://www.nationalreview.com/redirect/amazon.p?j=0674031318">Law and Judicial Duty</a>. (That essay isn’t online yet, and probably won’t be online for a while, but if you’re not a <a href="http://www.firstthings.com/index.php">First Things</a> subscriber, you should be.) McConnell properly agrees with Dworkin that Sotomayor’s professed “fidelity to the law” is, as he puts it, “more platitude than commitment” and wishes that senators had asked Sotomayor “why a judge should not decide hard cases based on her own moral judgment.” But, unlike Dworkin, McConnell believes that question has a compelling answer, an answer rooted, as Hamburger’s book shows, in the “traditional American commitment to the rule of law” and in “an ideal of judging as old as the republic.” According to McConnell, “No one at the founding”—nor, I think it’s safe to impute to him, in the post-Civil War, and post-Dred Scott, era, in which the Fourteenth Amendment was adopted—“appeared to take the now popular academic view that the Constitution was deliberately framed in heroic generalities precisely to give federal judges a wider scope for discretion”: Rather, as Hamburger emphasizes, when objective sources of constitutional interpretation run out, judges in the traditional vein do not seize on ambiguity to impress their own vision of good government on the nation. Instead they defer to legislative judgments and intervene only when constitutional principles are clear. Vagueness is not an excuse for judicial creativity but evidence that legislative action is within the legitimate range of constitutional meaning. Thus, in hard cases judges consult first the language of the Constitution, understood in light of its public meaning at the time of adoption. If there is a legitimate range of meaning, judges look to established practice and precedent to narrow its scope. But in the end, if constitutional meaning is uncertain, judges look to legislative judgments as the source of law rather than to their own preferences…. [T]o allow judges to decide cases in accordance with empathy, or to advance their own, necessarily disputed, notions of justice and rationality above the dictates of the law, would accord the judiciary a degree of discretion that is incompatible with an understanding of law based on popular democratic authority. Regular Bench Memos readers won’t be surprised to learn that I think that McConnell has it exactly right. I’ll limit myself to two additional observations on Dworkin’s argument. I’m surprised to see Dworkin contend that originalism depends on a theory “about the role of intention.” That’s true of what’s commonly called the “original intent” species of originalism, but not of the now-predominant “original meaning” species. (For a brief explanation of the distinction, see this <a href="http://www.eppc.org/publications/pubID.2580/pub_detail.asp">essay</a> of mine.) And far from “appealing to highly controversial political principles,” original-meaning originalism, as law professor Lawrence Solum <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244">explains at length</a>, is “grounded in both common sense and widely accepted theoretical views about meaning and the nature of law.” (My “<a href="http://www.eppc.org/programs/constitution/publications/pubID.2394,programID.39/pub_detail.asp">Are You an Originalist?</a>” essay aims to provide a simple demonstration that originalism comports with the common-sense understanding of language and the law.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODg5Yzc3Zjc0YmRhNzY2NmYxYzg1ZDk4ZjQwNjJmNDk= Fri, 11 Sep 2009 11:53:04 -0400 Sunstein's Confirmation as OIRA Head -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZmYyODY0MzZhYTAxM2JhMGIyZGRjN2FjNjBjYWEwYWE= I haven’t paid any attention to law professor—and possible Supreme Court candidate— Cass Sunstein’s nomination to be head of the Office of Information and Regulatory Affairs in the Office of Management and Budget. But I’m struck to learn that he was confirmed today by only a <a href="http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00274">57-40 vote</a>, with the 40 no votes including five Democratic senators: Begich of Alaska, Lincoln and Pryor of Arkansas, Nelson of Nebraska, and Webb of Virginia. Lincoln, Pryor, and Webb were also among the <a href="http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00273">35 votes</a> yesterday against cloture on Sunstein’s nomination. These votes would seem to signal that Sunstein would be a very controversial Supreme Court nominee. Update (9/11): I overlooked the fact that independent Bernie Sanders of Vermont, who caucuses with the Democrats, also voted against Sunstein. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZmYyODY0MzZhYTAxM2JhMGIyZGRjN2FjNjBjYWEwYWE= Thu, 10 Sep 2009 17:15:25 -0400 Re: Senator Leahy Wants Judges -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ODg2OWQ1ZmJkMWExNGFjNjU3YjA5MjkwYWU1Mjg5ZjE= <a href="http://bench.nationalreview.com/post/?q=MWIyMjJhNWY1YTc2MDc5NzcwY2E0MDMzZTcwMzg2MjQ=">Jonathan</a>: I’ll just <a href="http://bench.nationalreview.com/post/?q=MmQ3MTQ5ODRiNmJjN2ZkZDJkMDgwMjk2NGZkNGVkMDM=">reiterate</a> that the distinction between the nine permanent appellate judgeships and the three “temporary” appellate judgeships in Senator Leahy’s bill is irrelevant from the perspective of President Obama’s appointment power, since Obama would fill the new “temporary” judgeships with lifetime (not temporary) appointments. Ditto for the 38 permanent district judgeships and the 13 “temporary” district judgeships. The distinction matters only 10 years or more down the road when the first vacancy occurs on the court with a temporary judgeship: whoever is president at that time would not be able to fill the vacancy (which means that the number of actual judgeships on that court would then equal the permanent authorized number). In short, what Leahy’s bill would do is create 12 new appellate judgeships and 51 new district judgeships for Obama to fill. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODg2OWQ1ZmJkMWExNGFjNjU3YjA5MjkwYWU1Mjg5ZjE= Thu, 10 Sep 2009 11:45:18 -0400 Judge Chin for the Second -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=NzQzMzQ5NmM2N2U5N2MzYWNhODNlMDZiNjZjZDFlZjg= The <a href="http://blogs.wsj.com/law/2009/09/09/chin-up/">WSJ Law Blog reports</a> President Obama intends to nominate federal district court judge Denny Chin to the U.S. Court of Appeals for the Second Circuit. Of note, all but one of President Obama's appellate nominees to date have been sitting federal district court judges. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzQzMzQ5NmM2N2U5N2MzYWNhODNlMDZiNjZjZDFlZjg= Thu, 10 Sep 2009 10:09:11 -0400 Senator Leahy Wants Judges -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=MWIyMjJhNWY1YTc2MDc5NzcwY2E0MDMzZTcwMzg2MjQ= <a href="http://legaltimes.typepad.com/blt/2009/09/without-gop-support-leahy-pushes-for-more-judges.html">BLT reports</a> Senator Leahy has introduced legislation to create nearly 50 new federal judgeships -- nine appellate and 38 district seats -- and three temporary appellate seats. Such legislation was expected. Senator Leahy had introduced a similar bill last year and the Judicial Conference has recommended creating new seats. Yet because the bill would take effect immediately upon passage, thereby guaranteeing the sitting president additional vacancies to fill, no Republican Senators have signed on. There are already 90 judicial vacancies, only a fraction of which have pending nominees. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MWIyMjJhNWY1YTc2MDc5NzcwY2E0MDMzZTcwMzg2MjQ= Thu, 10 Sep 2009 10:05:52 -0400 A Campaign-Finance-Law History Lesson -- By: Hans A. von Spakovsky webmaster@nationalreview.com (Hans A. von Spakovsky) http://bench.nationalreview.com/post/?q=Yjg2MWMyYzM5NzE0ODA2NTQ5NzRmOGJkYmM1YzFkMWU= With the special argument on rehearing in Citizens United v. FEC taking place today in the Supreme Court, the hysteria arising out of the campaign-reform crowd and their supporters in the press, like <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/09/06/AR2009090601188.html">E. J. Dionne</a> of the Washington Post, is really amazing. On the last day of its term in June, the Supreme Court asked for further briefing on whether it should reconsider its holding in Austin v. Michigan State Chamber of Commerce and McConnell v. FEC. The supporters of campaign-finance reform resemble Chicken Little running around saying the sky is about to fall down. Dionne can’t even get the most basic facts correct in a column he published about the case on Monday. He wrongly asserts that if CU wins this case, the Supreme Court will be “eviscerating laws that have been on the books since 1907 and 1947 -- in two separate cases -- banning direct contributions and spending by corporations in federal election campaigns.” Wrong, wrong, wrong. In 1907, Congress passed the Tillman Act, which banned direct contributions by corporations to federal candidates. This Act, which campaign “reformers” and Dionne trumpet as a wonderful example of progressive law, was sponsored by Ben “Pitchfork” Tillman, probably the worst racist to ever serve in the United States Senate. He was chiefly responsible for the implementation of Jim Crow laws in South Carolina when he was governor and was proud of his record of disenfranchising and murdering black citizens. He sponsored the Tillman Act because, at that time, large corporations supported Republican candidates like Teddy Roosevelt, who had banned Tillman from the White House. Tillman wanted to stop corporate giving to help the Democratic party and hurt Republican candidates, who were supported overwhelmingly by blacks. The 1947 law Dionne refers to simply added unions to the corporate ban on direct giving. However, the Austin case had nothing to do with direct contributions to federal candidates. The Supreme Court instead upheld a state ban on corporations engaging in independent political expenditures. It is a case that is completely at odds with other decisions of the Supreme Court that have consistently held that while direct contributions to candidates can be regulated, independent political expenditures cannot be restricted. Overturning the Austin case would in no way overturn the corporate and union ban on direct contributions to federal candidates. Moreover, the Supreme Court is only reconsidering the portion of the McConnell case that upheld the facial constitutionality of the electioneering communication provision. This bans certain advertisements by corporations and unions close to an election that simply name a federal candidate, even if the ad has nothing to do with an election and everything to do with a bill on an important issue that is coming up for a vote by the incumbent candidate. I am hopeful that the Supreme Court will overturn its prior holdings in both of these cases and uphold the political-speech rights of the First Amendment. If it does so, it does not mean that the sky is falling in on campaign-finance reform, as Dionne claims, or that either the 1907 or 1947 law on direct contributions will be “eviscerated.” More’s the pity. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=Yjg2MWMyYzM5NzE0ODA2NTQ5NzRmOGJkYmM1YzFkMWU= Wed, 09 Sep 2009 09:50:17 -0400 Justice Roberts: The Swing Vote? -- By: Will Haun webmaster@nationalreview.com (Will Haun) http://bench.nationalreview.com/post/?q=NTg1Nzk4NWU1MjNjNzc2MjkwNzE4YjU0YjA1M2ZmODM= Court watchers typically don’t call Chief Justice Roberts the Court’s “swing vote,” but the success of Citizens United’s challenge to the corporate political-speech ban could hinge on him. Justices Kennedy, Scalia, and Thomas have long favored an overhaul of current political speech regulation under “McCain-Feingold” and the case law emanating from Austin v. Michigan Chamber of Commerce. Justice Alito has also been skeptical of the current law’s ability to prevent constitutionally protected speech from regulation. Though Roberts shares their interest in limiting the scope of regulation, his 2007 opinion in FEC v. Wisconsin Right to Life demonstrated his preference to do so within the Court’s precedent. It would be surprising if Chief Justice Roberts would overturn a line of case law that includes a precedent he articulated just two years ago. By appealing to the purpose behind Robert’s “safe harbor” test from Wisconsin, the Court’s conservatives could bring the Chief Justice on board to vindicate Citizens United. Roberts distinguished Wisconsin from previous cases by narrowing the corporate ban only to ads that “expressly advocated” for the election or defeat of a candidate -- issue ads received a “safe harbor” from government regulation. Roberts’s test garnered the votes of the other conservatives, but not without their skepticism of a workable distinction between ads about issues and ads advocating or opposing a candidate. The FEC’s use of the test since Wisconsin has likely validated the concerns expressed by the conservatives. Any ad that mentions a party or candidate is currently a form of “expressed advocacy,” regardless if the ad specifically advocates how to vote, giving what could be an issue ad no “safe harbor” from regulation. The Chief Justice saw the extent of the FEC’s manipulation of his “safe harbor” test in the first round of oral arguments, which perhaps underlies why the Court is rehearing the case. If Chief Justice Roberts is looking to refine his “safe harbor” test to prevent excess regulation, Justice Scalia’s comment that speech “not only offered but welcomed by the listener is entitled to heightened First Amendment scrutiny” could provide a “safe harbor” for Citizens United’s “on demand” movie from the usual TV ad regulation. This outcome would certainly bring campaign-finance regulation closer to the Constitution, even if it doesn’t bring it the whole way. Most importantly, it will attract a fifth vote in Chief Justice Roberts. — Will Haun is policy chairman of the Young Conservative Coalition and in his first year at the Catholic University of America’s Columbus School of Law. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTg1Nzk4NWU1MjNjNzc2MjkwNzE4YjU0YjA1M2ZmODM= Wed, 09 Sep 2009 09:39:39 -0400 This Day in Liberal Judicial Activism-September 9 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MWNiZGU0NDc0Y2I4NzE4NDVhNjY1NzMzMGIzZThkODg= 1993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors. In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge. Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below. Simmons confesses to the murder. At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor. The jury recommends, and the trial judge imposes, the death penalty. A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. (See This Day for <a title="http://bench.nationalreview.com/post/?q=MWNmYjExMGRiZGNjOWM2NDY0Y2E4MTFmY2FhZDEzNDg=" href="http://bench.nationalreview.com/post/?q=ZmIyN2RhNDQ4YTFiMzliMjQxM2JiOTA2NzUxMDMxMzg=">Mar. 1</a>.) In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MWNiZGU0NDc0Y2I4NzE4NDVhNjY1NzMzMGIzZThkODg= Wed, 09 Sep 2009 08:00:00 -0400 Justice Stevens's Impending Retirement? -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZDRmZTk0NzM2MWI3ODhkZTRjZDBiYjMwODdiNDFiYjM= One item not to be lost in the late-summer stupor is the <a href="http://news.yahoo.com/s/ap/20090902/ap_on_go_su_co/us_supreme_court_stevens_3">news</a> (<a href="http://bench.nationalreview.com/post/?q=NzRmMWE4MzM4NWQ5Y2E0NDNkY2YwMDYyOTQ1N2IwNjc=">linked to</a> by Kathryn last week) that Justice Stevens has hired only one law clerk for the October 2010 Term. Under his long-established practice, he would have hired all his clerks by now. On its face, that news seems to be a crystal-clear sign that Stevens intends to retire next summer. (If I learn of anything that makes the sign more murky, I’ll pass it along.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDRmZTk0NzM2MWI3ODhkZTRjZDBiYjMwODdiNDFiYjM= Tue, 08 Sep 2009 10:20:37 -0400 This Day in Liberal Judicial Activism-September 7 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NGYzNTgwOGQxMDI1NmFkZTlmNjNiZjcxNTAwNWM5ZTU= 2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid. Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball”. You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court”, but the amendment “effectively strikes the state Clause from the constitutional scheme.” (Huh?? The ballot title and summary provide a far more accurate description of the amendment than the majority does.) And, the majority continues, the ballot summary supposedly failed to “mention[]—or even hint[] at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.” (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGYzNTgwOGQxMDI1NmFkZTlmNjNiZjcxNTAwNWM5ZTU= Mon, 07 Sep 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-September 5 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MDk3NzlkYjFkZGU5ODM3OTIxZjdkZThmNDJiMDRhMmU= 2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated. An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MDk3NzlkYjFkZGU5ODM3OTIxZjdkZThmNDJiMDRhMmU= Sat, 05 Sep 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-September 4 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZjlkYjc3MDQ3OWVmYjRhNTc1MzgyYTM1OTQxZjExODY= 1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds in Haines v. Liggett that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances. Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applied and ordered the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted. The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case. The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality. When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjlkYjc3MDQ3OWVmYjRhNTc1MzgyYTM1OTQxZjExODY= Fri, 04 Sep 2009 08:00:00 -0400 SCOTUS Watch -- By: Kathryn Jean Lopez webmaster@nationalreview.com (Kathryn Jean Lopez) http://bench.nationalreview.com/post/?q=NzRmMWE4MzM4NWQ5Y2E0NDNkY2YwMDYyOTQ1N2IwNjc= <blockquote> <a href="http://news.yahoo.com/s/ap/20090902/ap_on_go_su_co/us_supreme_court_stevens_3/print;_ylt=Ajkcy8emdHMD1btpij9GjzZAw_IE;_ylu=X3oDMTFhcGtkMm1tBHBvcwMxBHNlYwN5bl9zdG9yeV9wcmludF9jb250ZW50BHNsawNwcmludA--">Justice Stevens slows his hiring at high court</a> By MARK SHERMAN, Associated Press Writer Mark Sherman, Associated Press Writer Wed Sep 2, 6:33 am ET WASHINGTON - Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court's liberals will retire next year. If Stevens does step down, he would give President Barack Obama his second high court opening in two years. Obama chose Justice Sonia Sotomayor for the court when Justice David Souter announced his retirement in May. Souter's failure to hire clerks was the first signal that he was contemplating leaving the court. Stevens, 89, joined the court in 1975 and is the second-oldest justice in the court's history, after Oliver Wendell Holmes. He is the seventh-longest-serving justice, with more than 33 years and eight months on the court. In response to a question from The Associated Press, Stevens confirmed through a court spokeswoman Tuesday that he has hired only one clerk for the term that begins in October 2010. He is among several justices who typically have hired all four clerks for the following year by now. Information about this advance hiring is not released by the court but is regularly published by some legal blogs. Stevens did not say whether he plans to hire his full allotment of clerks or whether he will leave the court at the conclusion of the term that begins next month. Retired justices are allowed to hire one clerk. Former law clerks said the justice has for years hired all his clerks at once, usually in June or July of the year preceding their appointment. "I'd be surprised if he hired one but not four," said Columbia University law professor Jamal Greene, who worked for Stevens in 2006 and 2007. But as to what that might mean, Greene said, "Frankly, your guess is as good as mine." But one former clerk, University of Oklahoma law professor Joseph Thai, said he takes it as a sign that Stevens is likely to retire soon. </blockquote> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzRmMWE4MzM4NWQ5Y2E0NDNkY2YwMDYyOTQ1N2IwNjc= Wed, 02 Sep 2009 12:48:58 -0400 Professor Stone (again) on 'our six Catholic Justices' -- By: Richard Garnett webmaster@nationalreview.com (Richard Garnett) http://bench.nationalreview.com/post/?q=ZDAxOGY4YjYxOWE3YTM0NGE1MTA3ZGRlYTM0ZjlhNmU= Prof. Geoffrey Stone returns, <a href="http://www.huffingtonpost.com/geoffrey-r-stone/justice-sotomayor-justice_b_271229.html">here</a>, to the phenomenon of "our . . . Catholic justices." A few years ago, after the Supreme Court rejected a constitutional challenge to the federal ban on partial-birth abortions, Professor Stone had caused some controversy with <a href="http://www.huffingtonpost.com/geoffrey-r-stone/our-faithbased-justices_b_46398.html">his assertion</a> that the justices in the majority -- all Catholic -- had "failed to respect the fundamental difference between religious belief and morality," a distinction that "[t]o be sure, . . can be an elusive distinction, but in a society that values the separation of church and state, . . . is fundamental." I responded, <a href="http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased__1.html#more">here</a> (see also <a href="http://prawfsblawg.blogs.com/prawfsblawg/2007/04/a_chill_wind_fr.html">this</a>), and disagreed. I thought, and think, that the majority was both reasonable and correct in concluding that the Constitution permits Congress to regulate abortion in the way that it did, and that their decision did not involve the imposition of specifically Catholic "religious belief." In his latest piece on the subject, Professor Stone's presentation is (I think) less (to use his word) "inflammatory," and more measured, than was his earlier one. He proposes a number of arguments, grounded in data about justices' voting in abortion-related cases, intended to support, if not to "prove[]", his initial assertion that the Catholic justices' religion best explains their vote to uphold Congress's enactment. I'll leave it to readers, for the most part, to assess these arguments, but would suggest that Professor Stone's claims seem at least as consistent with the hypothesis that "non-Catholic justices are more likely than Catholic justices, in abortion-related cases, to give in to the temptation to impose their policy preferences and disable politically accountable actors through implausible readings of the Constitution" as with the hypothesis that "Catholic justices, in abortion cases, tend to rely on specifically Catholic beliefs and morality rather than on the Constitution's meaning." That is, the observation that Catholic justices tend to vote against the constitutionalization or expansion of abortion rights should raise not only the (in Professor Stone's words) "awkward" question whether they are imposing their religious beliefs, but also the question, "Why are the non-Catholic justices more likely to get it wrong, when it comes to abortion?" <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDAxOGY4YjYxOWE3YTM0NGE1MTA3ZGRlYTM0ZjlhNmU= Wed, 02 Sep 2009 09:21:57 -0400 This Day in Liberal Judicial Activism-September 2 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YmFjYTI4ZTkzNmY1MzVhMTE2NzQ3NGYzOTdmOTk2ODE= 2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively. In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure. On review, the Supreme Court (in Schriro v. Summerlin) reverses the Ninth Circuit. Not a single justice expresses agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion takes four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court rules that Ring did not announce a watershed rule of criminal procedure. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YmFjYTI4ZTkzNmY1MzVhMTE2NzQ3NGYzOTdmOTk2ODE= Wed, 02 Sep 2009 08:00:00 -0400 This Day in Liberal Judicial Activism-August 30 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NTZjZjc4MDM5MjU0ZmU0YTJkOThmNDk1MzliYjEyNjA= 1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.” Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child's education a function of the wealth of his parents and neighbors.” Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees. Citing Serrano, Justice Powell’s majority opinion adds this prescient “cautionary postscript”: “[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.… Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.” Ah, the unintended consequences of liberal judicial activism: According to <a title="http://www.pbs.org/merrow/tv/ftw/serrano.html" href="http://www.pbs.org/merrow/tv/ftw/serrano.html">experts</a>, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.” Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980. 2006—In a front-page story in the New York Times, Supreme Court reporter Linda Greenhouse reports a “sudden drop” in the number of female law clerks for the first full year of the Roberts Court. Justice Souter, who has no female clerks for that year, attributes the reduction to random variation, but Greenhouse observes that Justice Ginsburg had considered the drop sufficiently significant to take note of it in a speech to the American Sociological Association. Whatever Ginsburg’s sociological musings might have been, she ought to have had a keener understanding of the consequences of nondiscriminatory merit-based selection and random variation. In her 1993 Supreme Court confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary. Out of 57 employees, zero blacks. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTZjZjc4MDM5MjU0ZmU0YTJkOThmNDk1MzliYjEyNjA= Sun, 30 Aug 2009 08:00:00 -0400 The Supreme Court's Year in Revue -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZWNkNTg5NWQzMmU2YTc0OTA4MTIxZTAzOGQ5NjE3NmQ= For an engaging review of the Supreme Court’s recently completed (well, almost completed) term, read John P. Elwood’s “<a href="http://www.greenbag.org/v12n4/v12n4_elwood.pdf">What Were They Thinking: The Supreme Court in Revue, October Term 2008</a>” from the forthcoming issue of the <a href="http://www.greenbag.org/">Green Bag</a>. As usual, Elwood is as informative as he is irreverent -- and given how irreverent he is, that’s saying a lot. Here, for example, is Elwood’s discussion of FCC v. Fox Television Stations: <blockquote> When it comes to certain swear words, we are all ninth graders tittering at the back of Mrs. Moriarty’s English class, and this case involves, as the Court put it, “the F-Word and the S-Word.” In D.C., those terms usually denote “fawning” and “sycophantic,” which aren’t even bad words locally, but here, they involve the usual outside-the-Beltway sexual and excretory terms. In interpreting the Communications Act of 1934’s prohibition on “obscene, indecent, or profane language,” the Federal Communications Commission formerly took the position that fleeting references typically were not considered “indecent.” In 2004, the FCC declared that even a single use of these words could be indecent. That rule is an obvious hazard for celebrities, for whom such words are a basic building block of communication akin to nouns, verbs, and insincere air-kissing, and a broadcaster quickly found itself up S-Word creek after Bono Vox, Nicole Richie, and Cher F-Worded up. The broadcasters sued and the Second Circuit found the FCC’s reasoning inadequate under the APA. By a 5-4 vote in a decision written by Justice Scalia, the Court held that the FCC’s new rule satisfied the APA, but declined to address any First Amendment challenge because it was not decided by the court below. The big news from an Ad-Law perspective is that the Court glossed the State Farm test for the reasonableness of a new administrative interpretation, see Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., and held that an agency “need not demonstrate . . . that the reasons for the new policy are better than the reasons for the old one: it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” That cleared up lingering uncertainty about the meaning of State Farm and set a low standard for the government in making changes. Heady stuff for APA buffs - or as they’d say on Vulcan, “Semara.” </blockquote> And here’s Elwood’s reflection on Justice Souter’s retirement: <blockquote> Having finally succeeded in getting the phrase “willy-nilly” into the United States Reports, see Kennedy v. Plan Administrator, the Court’s leading user of folksy phrases concluded he had no new worlds to conquer and Justice Souter notified the President in May of his intended retirement. Souter had frequently said that he had the world’s best job in the world’s worst city because he never took to living in Washington, despite living in a tiny soulless hi-rise apartment in a crime-riddled neighborhood. Souter complained that he underwent an “intellectual lobotomy” when the summer ended and he left Weare, N.H. to return to Washington, which, if you have been to the Florence of the Western Merrimac Valley, really goes without saying. Souter privately told friends - and by “friends,” I mean people who betray personal confidences at the first opportunity when reporters call - that if President Obama were elected, he would be the first to retire, thus making him the first Justice opposed for confirmation by Barbara Mikulski, Ted Kennedy, John Kerry and NOW (his confirmation would “end . . . freedom for women in this country”) to bide his time waiting for the election of a Democrat. </blockquote> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZWNkNTg5NWQzMmU2YTc0OTA4MTIxZTAzOGQ5NjE3NmQ= Tue, 25 Aug 2009 10:41:12 -0400 This Day in Liberal Judicial Activism-August 24 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NzQwNzJmNGVmNGM5NDY0NmQ0YzIxNDBkNWNjOWJmODE= 1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA. Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision. Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species” -- in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish -- cannot challenge violations of the ESA. On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning. In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate -- and that Congress did so through the ESA’s citizen-suit provision. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzQwNzJmNGVmNGM5NDY0NmQ0YzIxNDBkNWNjOWJmODE= Mon, 24 Aug 2009 08:00:00 -0400