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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) Tue, 09 Feb 2010 20:35:02 -0500 Tue, 09 Feb 2010 20:35:02 -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 Senate Confirms Greenaway -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=MjUwYzE2ZDNkNDQyMTM5NDQ3MjkwMDQ4YTkyZTdmYjQ= Earlier today the Senate <a href="http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=2&vote=00021">unanimously confirmed</a> district court judge Joseph Greenaway to the U.S. Court of Appeals for the Third Circuit. (<a href="http://howappealing.law.com/020910.html#037017">LvHA</a>) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjUwYzE2ZDNkNDQyMTM5NDQ3MjkwMDQ4YTkyZTdmYjQ= Tue, 09 Feb 2010 20:34:04 -0400 Re: Re: Let the Flak Begin -- By: Ramesh Ponnuru webmaster@nationalreview.com (Ramesh Ponnuru) http://bench.nationalreview.com/post/?q=ZDc1NTE0ZDliNDJlMDM2MmVlYmIxYmQ4MDA3OWZkMjg= Matt, I think <a href="http://bench.nationalreview.com/post/?q=ZWQ2NjgxYmFkNWU2ZTE2OTk0MTkxNDJjNDM0MGUyOGM=">you</a> are sufficiently correct that I withdraw <a href="http://bench.nationalreview.com/post/?q=M2YyM2Q0ZDJlMGVlZDg0YTVhMjczMWE0M2IxYjQxOWU=">my criticism</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDc1NTE0ZDliNDJlMDM2MmVlYmIxYmQ4MDA3OWZkMjg= Tue, 09 Feb 2010 11:43:44 -0400 This Day in Liberal Judicial Activism-February 9 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZDFjNTllNTNhNjFjOWE2OWEzYzMxYjc3MzczZjQwZWE= 2009—Three decades later, President Carter’s sorry judicial legacy lives on. A three-judge district court consisting of three Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson—issues a “tentative ruling” that finds that overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners” and that would require California’s prisons to reduce their inmate populations by as many as 57,000 prisoners. The trio asserts that the release can “be achieved without an adverse effect on public safety.” Even California attorney general Jerry Brown, usually an ardent supporter of liberal judicial lawlessness, condemns the ruling as “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDFjNTllNTNhNjFjOWE2OWEzYzMxYjc3MzczZjQwZWE= Tue, 09 Feb 2010 08:00:00 -0400 Elena Kagan vs. Merrick Garland -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=Mzk4MTlhZTYwZDdiOTRjOTUwZmNiNjg0MzIzOTI0MGE= Today’s Wall Street Journal <a href="http://online.wsj.com/article/SB10001424052748703894304575047603606503576.html#printMode">reports</a> that “Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.” Oddly, the article lumps together Solicitor General Elena Kagan and D.C. Circuit judge Merrick Garland as leading examples of “less-controversial candidates.” In my judgment, Kagan would be very likely to arouse significant Republican opposition, far more so than Garland. For starters, she <a href="http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00107">received</a> 31 Republican “nay” votes and only seven positive votes (with three Republican senators not voting) just last year on her confirmation to be SG. It’s reasonable to assume that all of the senators who voted against her (except newly minted Democrat Arlen Specter and departed senator Mel Martinez) would start off strongly inclined to vote against her for the Supreme Court, and that, given the much higher bar for the Supreme Court, so would many of the other Republicans. There’s certainly nothing that’s happened over the past year to dispel any of the concerns that were raised during Kagan’s confirmation process, including by her <a href="http://bench.nationalreview.com/post/?q=MDcyZTdkNGU0YjZkY2Q3ZTZlN2Y0NjYyNjYxNDBjMTI=">abject failure</a> to engage in a meaningful discussion of legal issues. Kagan earned goodwill among conservatives for her deanship of Harvard Law School. But her fair treatment of conservatives, and the broader administrative skills that she displayed, signal very little about how she would be as a justice. At best, she is a wild card. Most likely, she would be largely indistinguishable from Ruth Bader Ginsburg. By contrast, Judge Garland has earned the respect of folks across the political spectrum for his judicial craftsmanship in his 13 years on the D.C. Circuit. Unlike Kagan, he may well be the best that conservatives could reasonably hope for from a Democratic president. While he’s certainly no judicial conservative, he would seem to represent what I described in this Washington Post <a href="http://www.eppc.org/publications/pubID.3809/pub_detail.asp">piece</a> last year as the “once-dominant species of liberal proponents of judicial restraint,” and his nomination might well “make great strides toward ending the judicial wars.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=Mzk4MTlhZTYwZDdiOTRjOTUwZmNiNjg0MzIzOTI0MGE= Mon, 08 Feb 2010 11:52:33 -0400 Utah Events on the Transnationalist Threat -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NjM0N2E5YWE0NDE4NzQxYjRmMzA5ZDNiNzEzOGJmNWM= This coming Thursday, Feb. 11 (if the weather will have permitted me to escape from the D.C. area), I will be in Utah to speak on the threat to fundamental American principles that legal transnationalism poses (the topic of, among other things, my <a href="http://www.eppc.org/publications/pubID.3793/pub_detail.asp">series of posts</a> on Harold Koh’s nomination to be State Department legal adviser). At noon I will speak at BYU law school (JCRB 205; lunch served), and at 3:00 I will speak at the University of Utah law school (room 105). Each event is sponsored by the law school’s Federalist Society chapter. And, yes, it’s no coincidence that I will be in Utah at the height of the ski season, nor is my 13-year-old son’s, er, interest in hearing me speak on this topic his primary motivator for accompanying me on the trip. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NjM0N2E5YWE0NDE4NzQxYjRmMzA5ZDNiNzEzOGJmNWM= Mon, 08 Feb 2010 09:00:00 -0400 Judge Walker's Skewed Judgment -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZDliOTA1NmUxNmQ1ZjI0ZTY4ZmY5N2U2MDgxMjk3OTk= According to this <a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/07/BACF1BT7ON.DTL">column</a> in today’s San Francisco Chronicle, “The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.” In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay. It’s whether he is capable of ruling impartially. I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case. From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors. Consider his series of controversial—and, in many instances, unprecedented—decisions: Take, for example, Walker’s <a href="http://article.nationalreview.com/419550/staging-a-show-trial-on-same-sex-marriage/edward-whelan?page=1">resort</a> to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate. Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay <a href="http://bench.nationalreview.com/post/?q=ZjQyZDM5MzhlNDFjYzliOWVmMWEyZjgxNzk0NGViODI=">order</a> by the Supreme Court in an opinion that was plainly a <a href="http://bench.nationalreview.com/post/?q=OTk5NTRhMDE4YjE5NGIwMDJkNTIwMGQxOTk3OTgzZGE=">stinging rebuke</a> of Walker’s lack of impartiality. Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial. Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors—a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees. Take Walker’s insane and unworkable <a href="http://bench.nationalreview.com/post/?q=ZTAzYmE3NzVjMTEzNjczYjAyMDEwOThlMzBiZjFlYmM=">inquiry</a> into the subjective motivations of the more than seven million Californians who voted in support of Prop 8. Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause. And so on. Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now. [Cross-posted on The Corner] <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDliOTA1NmUxNmQ1ZjI0ZTY4ZmY5N2U2MDgxMjk3OTk= Sun, 07 Feb 2010 11:35:51 -0400 This Day in Liberal Judicial Activism-February 6 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OTUxMDU2MjA3MzVkNDAyZmMzM2EyNTg5MDI2NTQ4YWQ= 1992—Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges 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 rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted. A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case. The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality. Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.” In the face of these and other <a title="http://www.eppc.org/publications/pubID.2341/pub_detail.asp" href="http://www.eppc.org/publications/pubID.2341/pub_detail.asp">judicial misdeeds</a>, President Clinton appoints Sarokin to the Third Circuit in 1994. The ABA gives Sarokin its highest “well qualified” rating. Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OTUxMDU2MjA3MzVkNDAyZmMzM2EyNTg5MDI2NTQ4YWQ= Sat, 06 Feb 2010 08:00:00 -0400 The Activism of "Strict Scrutiny" -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=ZDU3NzA1ZjUzYWY3OWE2MDI2M2NlZWE1ZGZlOGQ3MTU= My friend Carson Holloway has a characteristically <a href="http://www.thepublicdiscourse.com/2010/02/1135">thoughtful article</a> at Public Discourse today, digging below the surface of charges and counter-charges of "judicial activism." As Holloway notes, much of the problem can be seen in the modern doctrine of "strict scrutiny," originally invented by the liberal activists of the mid-twentieth century in order to "guide the Court to outcomes they approved on non-constitutional grounds." Now, unfortunately, the doctrine is employed by all the justices, not just the liberal activists--as can be seen in the Citizens United case. Does that mean Citizens United was wrongly decided? No, not necessarily, says Holloway: <blockquote> My point is that, even if Citizens United was correctly decided, the use of tests like strict scrutiny, now deeply entrenched in the Court’s jurisprudence, drive the Court into kinds of inquiries that almost inevitably make even the most sincere critics of judicial activism engage in it themselves. </blockquote> I remember reading the Court's decision in the Virginia Military Institute case (<a href="http://www.law.cornell.edu/supct/html/94-1941.ZS.html">U.S. v. Virginia</a>) in 1996, and being thrilled to see Justice Scalia criticize the sort of jurisprudence that <blockquote> regards this Court as free to evaluate everything under the sun by applying one of three tests: "rational basis" scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. </blockquote> . . . And then being crestfallen to see him retreat from this commonsense view, back into the bunker of the Court's worst habits, in his very next paragraph: <blockquote> I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). . . . </blockquote> Sigh. All that was required was to grasp the nettle. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDU3NzA1ZjUzYWY3OWE2MDI2M2NlZWE1ZGZlOGQ3MTU= Fri, 05 Feb 2010 10:47:27 -0400 This Day in Liberal Judicial Activism-February 5 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YTNlZmNkZDlkMWM4ODU2YTU2YzAwNDEyOTdkZDQ2Yzc= 1996—In a muddled speech on the “majesty of the law” at Suffolk University law school, then-district judge Sonia Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law”—indefiniteness that sometimes results from the fact that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.” Somehow Sotomayor doesn’t see fit even to question whether, and under what circumstances, it’s proper or desirable for judges to “develop a novel approach” that “pushes the law in a new direction.” Instead, she complains about “recurring public criticism about the judicial process.” The fact that Sotomayor cites as her lead example of unwelcome “public criticism” an article “describing Senator Dole’s criticism of [the] liberal ideology of Clinton judicial appointments and [of the] American Bar Association” lends credence to the suspicion that Sotomayor is less interested in the majesty of the law than in the majesty of liberal activist judges. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YTNlZmNkZDlkMWM4ODU2YTU2YzAwNDEyOTdkZDQ2Yzc= Fri, 05 Feb 2010 08:00:00 -0400 Upcoming Supreme Court Vacancies? -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZDU3NTk2NWIyOWVhZTM4ZTdlYjY1OTZmZjIxYzNjNWI= ABC News <a href="http://abcnews.go.com/print?id=9740077">reports</a> that the White House is preparing for the possibility of two Supreme Court vacancies this spring. That would be sensible contingency planning, and I only wish that the White House would prepare as seriously for national-security contingencies. But my own guess is that there will be one vacancy. Specifically, my guess is that Justice Stevens will retire unless Justice Ginsburg’s health requires her to do so, in which case I think that Stevens would stick it out for another year. One passage in the article’s discussion of leading candidates surprised me—namely, the assertion that Solicitor General Elena Kagan “is known as one of the finest constitutional scholars in the country, dazzling both liberal and conservative friends with her intellectual prowess and her ability to find consensus among ideological opposites.” I have plenty of respect for Kagan’s intellect, but she’s written relatively little, and I don’t think that anyone regards her as being in the top tier of “constitutional scholars.” She has earned acclaim for being an effective dean, not for “dazzling … intellectual prowess.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDU3NTk2NWIyOWVhZTM4ZTdlYjY1OTZmZjIxYzNjNWI= Thu, 04 Feb 2010 12:40:24 -0400 This Day in Liberal Judicial Activism-February 4 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YjI0OGZkMDNkMDc4ZWZmODIwZDE5YzViM2FhZDA0YTA= 2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling). 2005—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as between a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, reverses this ruling. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YjI0OGZkMDNkMDc4ZWZmODIwZDE5YzViM2FhZDA0YTA= Thu, 04 Feb 2010 08:00:00 -0400 Washington Times Editorial Today . . . -- By: Roger Clegg webmaster@nationalreview.com (Roger Clegg) http://bench.nationalreview.com/post/?q=YWFkNGYwYjllZTA5MDM1MDc0MTIwNDQ0Y2Q2Njg5NDU= . . . Focusing on tomorrow’s Senate Judiciary Committee vote on California district court nominee <a href="http://washingtontimes.com/news/2010/feb/03/outrageous-judicial-pick-still-requires-scrutiny/">Edward Chen</a>, “whose radical agenda has not been fully exposed and requires further public hearings rather than a vote.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YWFkNGYwYjllZTA5MDM1MDc0MTIwNDQ0Y2Q2Njg5NDU= Wed, 03 Feb 2010 09:54:23 -0400 This Day in Liberal Judicial Activism-February 3 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NTg1M2NjNjQ2NjU2NzNlNmUwYmRiMjdkMmEzYzMzZDU= 1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell. Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg. Often misdescribed as a “moderate conservative,” Kennedy in fact embraces an aggressive view of judicial power. While he sometimes deploys that power towards conservative ends, his misdeeds of liberal judicial activism are far more momentous—and are often masked by grandiose rhetorical diversions. To cite but a few examples: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” <a title="http://www.law.cornell.edu/supct/html/91-744.ZS.html" href="http://www.law.cornell.edu/supct/html/91-744.ZS.html">Planned Parenthood v. Casey</a> (1992). Translation: We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation. “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” <a title="http://www.law.cornell.edu/supct/html/03-633.ZS.html" href="http://www.law.cornell.edu/supct/html/03-633.ZS.html">Roper v. Simmons</a> (2005). As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.” “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. <a title="http://www.law.cornell.edu/supct/html/02-102.ZS.html" href="http://www.law.cornell.edu/supct/html/02-102.ZS.html">Lawrence v. Texas</a> (2003). Translation: We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly. “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” <a title="http://supct.law.cornell.edu/supct/html/00-795.ZO.html" href="http://supct.law.cornell.edu/supct/html/00-795.ZO.html">Ashcroft v. Free Speech Coalition</a> (2002) (emphasis added). It’s odd that Kennedy would think that speech (including opinion-writing?) should precede thinking. The notion is especially odd in a case concerning virtual child pornography. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTg1M2NjNjQ2NjU2NzNlNmUwYmRiMjdkMmEzYzMzZDU= Wed, 03 Feb 2010 08:00:00 -0400 Re: Let the Flak Begin -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=ZWQ2NjgxYmFkNWU2ZTE2OTk0MTkxNDJjNDM0MGUyOGM= So far I think <a href="http://www.thepublicdiscourse.com/2010/02/1131">Mr. Sullivan</a> has not suffered any solid hits from the flak. Judge Wilkinson, on whom he partly relies, has come in for a lot of grief for comparing Heller to Roe. But while he may have pushed the comparison here and there, his thesis compares the two cases on these four dimensions (quoted by Sullivan from the first page of Wilkinson's article): that like Roe, Heller evinces "an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism." Recitations of all the ways in which Roe is (obviously) worse than Heller do not meet the argument. And I wonder a little at the limitations Ramesh imposes on what originalism is capable of. To the contrary, I think that originalism about the judicial function has a good deal to say about what one does when the historical record leaves a question of the Constitution's meaning ambiguous. That is, originalism properly understood includes "a principle of restraint in hard cases." In Heller, both Justice Scalia and Justice Stevens rely on history. For my part, I think Justice Stevens has the better account of it, and Scalia's history is disappointingly unpersuasive. But suppose we call it a draw, as Sullivan does. Then, drawing upon everything we know about the founding generation's understanding of the judicial power, we would have to say that in the doubtful case the judges ought not to rule against the validity of a statute. That strikes me as a thoroughly originalist principle. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZWQ2NjgxYmFkNWU2ZTE2OTk0MTkxNDJjNDM0MGUyOGM= Tue, 02 Feb 2010 17:31:59 -0400 Re: Let the Flak Begin -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=Yzc2NmE3NjM2ZDMxM2JmYjY4NmFiZGI3NDUxNjc1NTY= As I’ve previously <a href="http://bench.nationalreview.com/post/?q=MjJkZTZkZWU5N2E4ZmEyYzg2ZDFiYzg4YzAzNjUxZTQ=">made clear</a>, I think that Judge Wilkinson’s comparison of Heller and Roe was recklessly irresponsible (and far from the “trenchant analysis” that Gregory J. Sullivan labels it in his <a href="http://www.thepublicdiscourse.com/2010/02/1131">essay</a>). I’ll again call attention to the extended withering critique of Wilkinson’s argument that legal scholars Nelson Lund and David B. Kopel offer in “<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1309714">Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III</a>.” I particularly like this passage from Lund and Kopel: Suppose that the Bill of Rights included a provision stating: “A well regulated medical system that protects women from premature death being necessary in a civilized nation, the right to abortion shall not be infringed.” Then suppose that in the late twentieth century the Supreme Court concluded that medical advances had almost eliminated the dangers of death during pregnancy and labor. Suppose further that three-quarters of the American population believed that the Abortion Clause guaranteed a broad right to abortion, and that evidence of the original public meaning of that clause overwhelmingly showed that it was understood when adopted as protecting a woman’s personal right to choose abortion over giving birth. Suppose that no jurisdiction had banned abortion until long after the Bill of Rights was adopted, and that even today only two cities and a few suburbs did so. Finally, assume that the Supreme Court had recently invalidated a complete ban on abortion in Washington, D.C., holding that the constitutional right does not disappear when the government decides that women are better off without it. If all this were true, then we would have a close parallel between the right to arms and the right to abortion. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=Yzc2NmE3NjM2ZDMxM2JmYjY4NmFiZGI3NDUxNjc1NTY= Tue, 02 Feb 2010 14:09:53 -0400 Let the Flak Begin -- By: Ramesh Ponnuru webmaster@nationalreview.com (Ramesh Ponnuru) http://bench.nationalreview.com/post/?q=M2YyM2Q0ZDJlMGVlZDg0YTVhMjczMWE0M2IxYjQxOWU= Even if Heller was wrongly decided, the analogy to Roe that Sullivan borrows from Judge Wilkinson seems highly inappropriate. Heller did not announce a right as unlimited as the abortion right of Roe. It did not sweep away the laws of all fifty states. It was plausibly grounded in the constitutional text. Sullivan suggests that Heller violated originalism, but most of his arguments against it--whether or not valid--are not originalist. Originalism by itself cannot tell a judge how to rule when "the historical record does not unambiguously point to one conclusion." Supplementing originalism with a principle of restraint in hard cases might do so, but accusing someone of wrongly violating that principle is not the same thing as accusing them of betraying originalism. The closest Sullivan comes to making an originalist argument against Heller (as opposed to the incorporation of its principle) is his reference to Wilkinson's claim that the decision was insufficiently committed to textualism. Not having read Wilkinson, I can't say how well the judge supports that claim. But by omitting any argument for the claim Sullivan has rendered his own argument unpersuasive. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=M2YyM2Q0ZDJlMGVlZDg0YTVhMjczMWE0M2IxYjQxOWU= Tue, 02 Feb 2010 12:46:02 -0400 This Day in Liberal Judicial Activism-February 2 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NmQ1MmI5NzcwYTZmMzEyNTExMTcwYmRlMTQ5MDAzNmY= 2009—Ninth Circuit judge Stephen Reinhardt, acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders, opines that the federal Defense of Marriage Act is unconstitutional insofar as it requires that federal benefits available to spouses of federal employees not be extended to same-sex spouses. Disguising his administrative misdetermination as a Ninth Circuit judicial order, Reinhardt purports to direct the Administrative Office of the United States Courts to add an employee’s same-sex spouse as a beneficiary. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NmQ1MmI5NzcwYTZmMzEyNTExMTcwYmRlMTQ5MDAzNmY= Tue, 02 Feb 2010 08:00:00 -0400 Originalism Under the Gun -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=ZWFkNjViZGEzYTJkOWIzMDE5NzcyMGJkZDRjYWNhNjQ= At Public Discourse, Gregory J. Sullivan reflects on "<a href="http://www.thepublicdiscourse.com/2010/02/1131">The Problem with the Supreme Court Conservatives</a>," as the Court prepares to take up the question whether to apply its Heller ruling on the Second Amendment to the states. Sullivan will take a lot of flak on the right, but he has a really good argument about the thicket of government-by-judiciary that the conservative justices appear ready to plunge into. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZWFkNjViZGEzYTJkOWIzMDE5NzcyMGJkZDRjYWNhNjQ= Tue, 02 Feb 2010 07:12:15 -0400 Heather Mac Donald on Same-Sex Marriage -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NGI4ZmI2NjUzNmUxOGY2ZDkwYWI1NGUxZTllYWI3NDk= On NRO today, Heather Mac Donald has an interesting essay, “<a href="http://article.nationalreview.com/print/?q=ODVlNmFhZjgxOTQ2ZmU1ZDdhYTIyMzc2NzVmZWNhYWQ=">Reengineering the Family</a>.” Here is her concluding paragraph: The facile libertarian argument that gay marriage is a trivial matter that affects only the parties involved is astoundingly blind to the complexity of human institutions and to the web of sometimes imperceptible meanings and practices that compose them. Equally specious is the central theme in attorney Theodore Olson’s legal challenge to California’s Proposition 8: that only religious belief or animus towards gays could explain someone’s hesitation regarding gay marriage. Anyone with the slightest appreciation for the Burkean understanding of tradition will feel the disquieting burden of his ignorance in this massive act of social reengineering, even if he ultimately decides that the benefits to gays from gay marriage outweigh the risks of the unknown. Update: A reader makes the good point that those unfamiliar with Mac Donald should know that she <a href="http://richarddawkins.net/articles/519">describes herself</a> as a nonbeliever and is clearly among those whose concerns about same-sex marriage don’t derive at all from “religious belief” (or from “animus towards gays”). <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGI4ZmI2NjUzNmUxOGY2ZDkwYWI1NGUxZTllYWI3NDk= Mon, 01 Feb 2010 13:42:26 -0400 'Ending Racial Preferences' -- By: Roger Clegg webmaster@nationalreview.com (Roger Clegg) http://bench.nationalreview.com/post/?q=YjQxMTkxY2MwNDUzNzRhY2ZhZDI5MTg2NGVkMzU2Y2U= That’s the title of <a href="http://www.scotusblog.com/2010/02/ending-racial-preferences/">my piece</a> on SCOTUS blog, on what the Supreme Court needs to do. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YjQxMTkxY2MwNDUzNzRhY2ZhZDI5MTg2NGVkMzU2Y2U= Mon, 01 Feb 2010 12:09:04 -0400 This Day in Liberal Judicial Activism-January 31 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YTc1N2Y4MWY2ZjRjODU5ZWQ4MTE4MjQ1YmYyYjNjMzY= 2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire from active service takes effect. Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise. Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency. Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases. Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YTc1N2Y4MWY2ZjRjODU5ZWQ4MTE4MjQ1YmYyYjNjMzY= Sun, 31 Jan 2010 08:00:00 -0400 This Day in Liberal Judicial Activism-January 30 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YzYzNDBiZWZhNTlhMDQ1ZTI2ZTNiYzcxZmUyOTY5NTg= 2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails. The Senate’s longstanding tradition of providing Supreme Court nominees an up-or-down vote on the Senate floor is respected. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YzYzNDBiZWZhNTlhMDQ1ZTI2ZTNiYzcxZmUyOTY5NTg= Sat, 30 Jan 2010 08:00:00 -0400 The Filibuster and Deliberation -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=YmNhYTgwNjM1YzY1OTMyZGE4OGI5NTQxNDEzOGViMzk= At Public Discourse today, I write "<a href="http://www.thepublicdiscourse.com/2010/01/1129">In Defense of the Filibuster</a>." Bench Memos readers with long memories may recall that in this page's first few weeks in May 2005, we had a lot of discussion among Ed Whelan, Andy McCarthy, me, and others about the Democrats' use of the filibuster to block Pres. Bush's judicial nominees. The air was full of "nuclear option," the "Gang of Seven," and so on. I <a href="http://www.nationalreview.com/benchmemos/063023.asp">said then</a> that while the filibuster was quite constitutional, the defense of it as a deliberative tool was unsound. But the context of our discussions was the filibuster against judicial nominations. And there isn't much "deliberation" going on when opponents of a judicial nominee simply deny him or her a debate and a floor vote. For one thing, the choice is binary (yea or nay on the nomination), and there isn't much of a middle ground toward which to deliberate. Where legislation is concerned, on the other hand, the filibuster has real value, making possible a deliberative convergence on a more reasonable outcome. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YmNhYTgwNjM1YzY1OTMyZGE4OGI5NTQxNDEzOGViMzk= Fri, 29 Jan 2010 10:00:07 -0400 Supreme Court Justices and the State of the Union Address -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZmZlMzJjNzI0N2YyODU5M2IyY2I4ODg5MThiMDE0YzE= Over the years, no matter who has been president, I have come to detest the State of the Union address, in part for its absurd everything-and-the-kitchen-sink policy prescriptions, in part for the endless episodes of staged applause. I don’t know when or why the tradition developed of Supreme Court justices attending the speech, but it strikes me as a tradition worth abandoning. A few thoughts in connection with last night: 1. In our system of separated powers, I think that it’s entirely proper and healthy for a president to engage in responsible criticism of a Supreme Court decision. (And so did, among others, Abraham Lincoln.) If there’s something seemingly impolite about offering that criticism in a State of the Union address when justices are present, I think that’s a good reason that justices should not attend. 2. President Obama’s criticism of the Court’s recent Citizens United decision was <a href="http://corner.nationalreview.com/post/?q=ZTVkODZiM2M0ODEzOGQ3MTMwYzgzYjNmODBiMzQzZjk=">demagogic</a> <a href="http://corner.nationalreview.com/post/?q=MjdjNzA3NWFlOGZmNjU2MjAxNjhlN2YwOTMxZGE3NjA=">mendacity</a>. (As Linda Greenhouse <a href="http://opinionator.blogs.nytimes.com/2010/01/27/justice-alitos-reaction/">points out</a>, Obama was also wrong in asserting that the decision “reversed a century of law.”) That—not the mere fact of criticism—is what made it improper. 3. Perhaps it would have been more politic if Justice Alito had managed to remain stone-faced during Obama’s demagoguery, but I find it encouraging and refreshing that, notwithstanding his years in D.C., he retains the capacity to be jarred by lies. (It’s also impressive that Alito was still paying attention; Justice Ginsburg evidently <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/01/27/AR2010012705616.html">fell asleep</a> during the drone-a-thon.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZmZlMzJjNzI0N2YyODU5M2IyY2I4ODg5MThiMDE0YzE= Thu, 28 Jan 2010 12:19:57 -0400 Re: Re: The WSJ Gets It Wrong -- By: Ramesh Ponnuru webmaster@nationalreview.com (Ramesh Ponnuru) http://bench.nationalreview.com/post/?q=MTE4ZTJiZjE2ZjBkOTQ0YmEwYjE2NmM0MmQ0ZDIyNWI= Hadley Arkes writes that there may be circumstances in which Republicans should support candidates who do not agree with the party's views on many important issues. He has in mind especially abortion. He continues, "But those are decisions we make in prudence. They should not spill over into affecting our understanding of what constitutes the commitments in principle that mark the character of the party." The distinction makes sense. But the resolution being debated bars party funds from going to any candidate who agrees with fewer than eight out of ten listed principles. The resolution excludes the possibility of making prudential judgments in favor of supporting some such candidates, and that exclusion is imprudent. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MTE4ZTJiZjE2ZjBkOTQ0YmEwYjE2NmM0MmQ0ZDIyNWI= Wed, 27 Jan 2010 13:40:16 -0400 re: re: The WSJ Gets It Wrong on a Litmus for Republicans -- By: Hadley Arkes webmaster@nationalreview.com (Hadley Arkes) http://bench.nationalreview.com/post/?q=YWFiMjIxOWU5MzhkODNhMzU3YzRhNzIwNTcxMTY4ZGM= I want to add one more thing: It would of course be plausible for the Republicans to do their own version of what the Democrats did when they recruited pro-life Democrats: they used those pro-lifers to help constitute a Democratic majority and put the Congress in the hands of a pro-choice, pro-abortion majority. On the other side, pro-choice Republicans have been useful in the past in helping to put in place a pro-life Republican majority. But those are decisions we make in prudence. They should not spill over into affecting our understanding of what constitutes the commitments in principle that mark the character of the party. I think we could readily argue over whether Republican candidates should share with us 7 or 8 of these items. We may have people who share only 3 or 4. But at least we have a measure of where they are -- where they fit or don't fit -- and that measure of things may be useful in reminding us just who we are. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YWFiMjIxOWU5MzhkODNhMzU3YzRhNzIwNTcxMTY4ZGM= Tue, 26 Jan 2010 17:47:30 -0400 Begala's Cloddish Appeal -- By: Allison Hayward webmaster@nationalreview.com (Allison Hayward) http://bench.nationalreview.com/post/?q=ZjkzMDg2MTE3NjFhMDJlNzM4NDEwMTQyODQ1MGQzNWY= In an attempt, perhaps, to be "relevant," the DCCC sent out an e-mail today signed by Paul Begala. It begins: <blockquote> Do you hear that pop-pop-popping sound off in the distance? The good news is, it ain't gunfire. The bad news is, it's corporate lobbyists and their Republican lapdogs popping champagne corks and dancing on what's left of the Constitution. They're celebrating the Supreme Court's decision to allow giant corporations to spend unlimited amounts of money to target any member of Congress who dares cross them. It's no exaggeration to say the very foundation of our democracy will be under attack once the tidal wave of corporate money floods into campaigns on the side of Republican candidates. </blockquote> In truth, the Court confronted the question of whether corporate money for political speech is just as protected as corporate money spent on speech contained in art, commerce, or education. And while I believe that is the only defensible course to take, I would remind people that we may not be able to predict how, or even weather, the decision changes the balance of power in D.C., or in state campaigns. Is this the most outrageous claim post-Citizens United? Sadly, no. One reform group insists that Citizens United will allow foreign money to buy campaigns. Which it won't, but in the dust cloud of hysteria currently clogging the air, who's checking? -- Allison Hayward teaches election law at George Mason University. <div> </div> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjkzMDg2MTE3NjFhMDJlNzM4NDEwMTQyODQ1MGQzNWY= Tue, 26 Jan 2010 17:14:56 -0400 Re: The WSJ Gets It Wrong -- By: Ramesh Ponnuru webmaster@nationalreview.com (Ramesh Ponnuru) http://bench.nationalreview.com/post/?q=Njg2Y2JlMmVhNmMzZmY1YTgwN2JhNTMzNjc3NDViMzk= National Review recently editorialized on this matter ("The Week," Dec. 21): <blockquote> Ronald Reagan is said to have told his staff that “the person who agrees with you 80 percent of the time is a friend and an ally, not a 20 percent traitor.” Some conservative activists have decided that it is time to add a corollary to Reagan’s dictum: Thirty percent traitors should be run out of the Republican party. These activists have devised a list of ten principles, and want the Republican National Committee to adopt a rule barring party funds from going to any candidate who agrees with fewer than eight of them. We agree with the activists’ principles, but not their tactics. The Arlen Specters of the Republican party have been a declining force within it for decades (which helps explain why Specter himself left). They had little to do with the party’s recent troubles, and they are not one of the most important obstacles to its resurgence. We have backed conservative primary challengers against the Specters when, in our judgment, doing so would pull Congress to the right. It cannot possibly serve that purpose to adopt a blanket rule that the RNC cannot spend a dollar to replace a Democrat who agrees with us 10 percent of the time with a Republican who agrees with us 60 percent of the time. </blockquote> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=Njg2Y2JlMmVhNmMzZmY1YTgwN2JhNTMzNjc3NDViMzk= Tue, 26 Jan 2010 14:11:06 -0400 The WSJ Gets It Wrong on a Litmus for Republicans -- By: Hadley Arkes webmaster@nationalreview.com (Hadley Arkes) http://bench.nationalreview.com/post/?q=ZGZiMjBjY2QyZGQ1MzRjMmFkYzkyYTRiYzkxMWMxODg= The late Frank Sheed wanted every morning, with his breakfast, a papal bull to impart conviction and momentum to the day. For more than 30 years the same effect has come for me through the editorials of the Wall Street Journal. Among the major newspapers, there is surely no editorial staff more politically savvy, or one with better practical judgment. But this morning, the editors fell into a rare but telling mistake: They lambasted the proposal by the Republican National Committee to adopt a set of minimal principles, as offered by James Bopp Jr. Bopp has distinguished himself for years in the pro-life movement and won some telling cases before the Supreme Court, resisting controls on campaign funding and political speech. Bopp has offered a list of ten items -- not principles, but particulars -- that can furnish a minimal test of whether a prospective candidate stands, with any credibility, with Republicans in a conservative party. As the Journal noted, the list includes: “support for smaller government and lower taxes, troop surges in Iraq and Afghanistan, the Defense of Marriage Act, containing Iran and North Korea, and gun rights; as well as opposition to ObamaCare, cap-and-trade legislation, ‘amnesty’ for immigrants, union card check and government-funded abortion.” Bopp has suggested that a prospective candidate should hold to at least eight of these items in order to stand honestly and coherently with Republicans. The concern of the editors at the Journal is that the imposition of a litmus test comes at precisely the wrong time: After the election in Massachusetts, Republicans are suddenly competitive again in all parts of the country, including New England and New York. This is the time for a bigger tent, they argue, the time to invite in more voters without quibbling over the finer grain of principles. But what the editors don’t seem to appreciate is that the list already contains vast accommodations in prudence, avoiding any firm test on the principles at the core of the matter. Take the matter of banning public funding of abortion: Even people who are firmly pro-choice have been willing to support that position -- as indeed Scott Brown is. They support that position while leaving wholly unchallenged the claim of a right to end the life of a child in the womb at any time for any reason. They simply hold that abortion is a private liberty, not a public good to be funded with monies drawn by law from the public. If even the father of the child has no standing in making the decision, why should the public at large be implicated in this business and compelled to pay for abortions? On the matter of marriage, the list would seek only the support for the Defense of Marriage Act (DOMA) -- once again, a position that Scott Brown has no trouble affirming. The Defense of Marriage Act simply establishes that the meaning of “marriage” in the federal code refers only to the legal union of a man and woman, known as “husband” and “wife.” It also bolsters the authority of states refusing to recognize same-sex marriages performed in other states. That act, as simple as it is, offers a hard nut to crack for any group that would try to establish same-sex marriage as a national policy. But one could hold to DOMA while leaving undecided the question of whether one would vote for a constitutional amendment to preserve traditional marriage against the willingness of the courts to strike it down. While Scott Brown opposed same-sex marriage in Massachusetts, he supported the right of the people of Massachusetts to vote on that matter for their own constitution, and he has held to a federalist line, declining to support a federal constitutional amendment on marriage. It could be argued that the real problem with the list offered by Bopp is that it does not get to the core of real principles. There is no attempt, for example, to discern the reasons some candidates to prefer a free economy to a command-and-control economy, and we are simply reminded that people may end up taking the same position while their motives spring from principles that are strikingly different. And while the items on the list do not represent principles, they are telling. In our current politics, it is President Obama and his party who show the most passionate determination to repeal the Defense of Marriage Act. Those who support DOMA are more likely to support other measures to defend traditional marriage, just as those who reject the public funding of abortion are more likely than others to support a chain of limited, precise moves to restrict certain kinds of abortion or to resist the efforts of the federal government to promote abortions on a vaster scale. We can quibble over items in the list of ten, but they already have built into them the kinds of prudential accommodations that provide ample room for disagreement, even disagreements running back to the root of things. But at the same time, the list offers the public a crisp account of what Republicans are about. Yes, support may be lost at times because certain voters are put off by the look of rigidity. But that apparently rigidity may also be read as Republicans’ having the nerve to define their own character, to tell us honestly who they are. If nothing else, it is truth in advertising. And yet it is more than that: It is a serious effort by a political party to impart to the public a better-defined sense of what makes it coherent as a party, with a principled perspective on political life. What has not been fully understood about parties is that they may offer us an understanding of the regime itself: The need to reconcile the interests of groups in a coalition begets the need to settle on the principles that keep those interests aligned in a stable way. As a party does that, it offers a sense of the ends that may be rightly -- or wrongly -- pursued with the uses of the law. And at the time same, it shapes our understanding of the rightful distribution of power: the arrangement of constitutional powers that is compatible with a “government by consent” and the most prudent for people in this particular place. This is not the kind of work done by any other associations in our political life. It is the work distinctly of parties. And whether or not it is now done deftly by Jim Bopp and the Republicans, it is work rightly aimed. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZGZiMjBjY2QyZGQ1MzRjMmFkYzkyYTRiYzkxMWMxODg= Tue, 26 Jan 2010 13:07:18 -0400 This Day in Liberal Judicial Activism-January 26 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NDdlZWQ1ZjVmYzYzMzQzNTY3MTNmMGE4ODUxODlkN2U= 2006—From the ski slopes of Davos, Switzerland, aristocrat and billionaire-by-marriage John Kerry panders to the faux-populist sentiment of the Left by calling for a filibuster of Supreme Court nominee Samuel Alito, who, Kerry fears, might actually believe that the Constitution leaves some important issues to the people to decide through their elected representatives. 2007—Continuing her practice of <a href="http://bench.nationalreview.com/post/?q=Yjc4OGMxMjBhOGZiYmY3ZDNkMDllOTEwNzUyYWUwNTM=">hiding behind sexist stereotypes</a> when they suit her, Justice Ginsburg laments being “all alone on the court” a year after Justice O’Connor’s retirement, and she asserts that she and O’Connor “have certain sensitivities that our male colleagues lack.” Ginsburg garners the Weekly Standard’s <a href="http://www.weeklystandard.com/Content/Public/Articles/000/000/013/252orqto.asp">sympathies</a>. Perhaps Ginsburg is just emoting publicly about how lonely she is. But it seems more sensible to read her comments as clamoring for the next Supreme Court appointment to be a woman or as criticizing the effect that Justice Alito’s replacement of O’Connor is having on pending cases. Neither would seem becoming of a justice. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NDdlZWQ1ZjVmYzYzMzQzNTY3MTNmMGE4ODUxODlkN2U= Tue, 26 Jan 2010 08:00:00 -0400 "certainly, [Justice] Kennedy's general philosophy is conservative" -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ODVjNzNlYTkzMTk3OTZhYmMxMjdhODNhMGI3MGY5NGQ= Maybe I’ve underestimated the power of groupthink among Supreme Court reporters, but I was surprised to find the proposition quoted in the title of this post in the middle of Robert Barnes’s <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/01/23/AR2010012302679_pf.html">article</a> in Sunday’s Washington Post on Justice Kennedy’s role in the campaign-finance case. I’ve frequently <a href="http://bench.nationalreview.com/post/?q=MzFkY2I3NGJhZGUxMDViODYyOWVjNjJmYzI3MDU1MjI=">criticized</a> <a href="http://bench.nationalreview.com/post/?q=MTZiY2JjMDBhMjFhZWQ1NDE0YjkzMTRhOWJjNmEzZTk=">characterizations</a> of Kennedy as “conservative” (or as a “moderate conservative”), but Barnes’s assertion is particularly striking in two respects. First, whereas other labelings have generally obscured the distinction between judicial philosophy and results in a select set of cases, Barnes is asserting that Kennedy’s judicial philosophy is conservative. One could use many labels to describe the judicial philosophy behind such propositions as “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” and behind freewheeling resort to foreign and international legal materials to redefine the meaning of provisions of our Constitution, but “conservative” is not one of them. Second is Barnes’s use of “certainly” to suggest that his erroneous proposition is incontestable. I don’t dispute that Kennedy sometimes deploys his expansive understanding of judicial power towards conservative ends, but his misdeeds of liberal judicial activism (see links above) continue to strike me as far more momentous. That said, I’m encouraged that Chief Justice Roberts and Justice Kennedy appear to be developing a strong working relationship. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODVjNzNlYTkzMTk3OTZhYmMxMjdhODNhMGI3MGY5NGQ= Mon, 25 Jan 2010 11:56:54 -0400 Defending Citizens United -- By: Anthony Dick webmaster@nationalreview.com (Anthony Dick) http://bench.nationalreview.com/post/?q=NTk4OTA4YzlkMDg5ZmQyMWQ3OTFiZjM4OWIxMmYxNGI= Bad arguments have been proliferating in the wake of this week's Citizens United case, which struck down restrictions on political expenditures by corporations and unions. The opinion leaves in place limits on campaign donations, but frees up corporations and unions to spend as much as they like to disseminate political messages. Here is a rogue's gallery of the most common arguments I've heard against the holding, followed by brief explanations of their profound misguidedness. <div> <div>1) This 5-4 decision is a blatant example of judicial activism, and conservatives are hypocritical for supporting it.</div> <div>Judicial activism occurs when judges abandon constitutional or statutory meaning and impose their policy preferences instead. A decision that faithfully applies the First Amendment is not activism but rather a proper exercise of the judicial responsibility to keep Congress within its constitutional bounds. The government argued in Citizens United that it had the power to outlaw books and movies produced by unions and corporations, both non-profit and for-profit, if they included even a single line addressing an election or a political issue. Such blatant censorship of core political speech falls well within the text and original meaning of the First Amendment, which supported an open marketplace of ideas by declaring in broad terms that "Congress shall make no law . . . abridging the freedom of speech." Contrast this with the paradigmatic examples of left-wing judicial activism, which have manufactured a host of "fundamental" rights without anything resembling such a clear textual basis. </div> <div> </div> <div>2) Political expenditures are not "speech" and should not be protected under the First Amendment.</div> <div>The force of this seductive argument evaporates upon the realization that spending money is an indispensable component of effective political speech, especially when it involves any audience above a trivial size. If the government could ban expenditures related to speech, it could easily circumvent the First Amendment simply by targeting the necessary funding underlying any communication. Imagine the New York Times being prohibited from paying for its writers, production, advertising, and distribution. Wonderful as this might sound in some of its particulars, you can see how the paper's right to free expression might be crimped. And so it goes for any person or group wishing to disseminate a political message through print or broadcast media, which is why the Court has properly subsumed the right to political expenditures within the right to free speech.</div> <div> </div> <div>3) The protections of the Free Speech Clause properly apply only to individuals, not corporations.</div> <div>Justice Scalia dispatched with this argument nicely in his concurring opinion by pointing out that the First Amendment has long been extended beyond isolated individuals to groups and associations whose members gather for a wide variety of purposes ranging from political to commercial. The Democratic party, the Sierra Club, and the New York Times aren't individuals, but their speech nonetheless falls under the umbrella of First Amendment protection. But the formalistic obsession with whether a corporation should have the legal status of a "person" with a "right" to free speech quite misses the substantive issues at stake, which concern how the principle of free expression should be applied to the political speech of certain types of social groups. In particular, is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues? Which brings us to our next point:</div> <div> </div> <div>4) A deluge of corporate and union speech will corrupt the democratic process.</div> <div>The very idea that political speech in an open democracy can be "corrupting" rests on fundamentally illiberal assumptions about individuals' capacity for reasoned deliberation and self-government. The First Amendment was designed to allow all speakers to put their messages out into the public debate, be they rich or poor, vicious or virtuous. The underlying principle is that over the long run, a society of free individuals is best equipped to evaluate the merits of political arguments for themselves, and that a distrustful government cannot ban speech out of the worry that its citizens will be unduly swayed by it. Rich individuals and talented polemicists have always been permitted to put out quantities and qualities of speech that may exert a disproportionate influence on society, but political opponents and voters have always been trusted to evaluate these speakers' arguments for themselves, respond with counter-arguments, and ultimately make up their own minds about the truth of any matter of controversy. Especially with the explosion of diverse viewpoints and avenues of expression that have come from the Internet media revolution, it simply defies common sense to think that any corporation or union could ever hope to so overwhelm the political debate as to prevent dissenting voices from being heard and reasonably contemplated by the electorate. Of course, this freewheeling political dialogue may be messy, imperfect, and prone to abuses, but the First Amendment makes it constitutionally preferable to censorship targeted at disfavored groups.</div> <div> </div> <div>5) This decision will radically increase powerful corporate influence in politics, compared to the status quo.</div> <div>History and economics together suggest that powerful corporate interests operating under an extensive regulatory state will always find a way exert a strong influence in politics. Up until now, campaign-finance regulations have had two ugly impacts: First, they have imposed huge legal costs on those wishing to participate in the political process, effectively shutting out smaller voices who cannot afford to pay campaign lawyers and risk legal trouble in getting their messages across. Loosening legal restrictions on smaller businesses will now allow them to enter the marketplace of political ideas on a more equal footing with their larger competitors. Second, campaign-expenditure limits have driven corporate money away from public dialogue and into channels that have been more corrosive and less transparent (think lobbyists, lawsuits, and regulatory capture). While these more pernicious forms of corporate influence are not likely to disappear any time soon, they may be mitigated to the extent that corporations can now pursue their policy objectives through a more open, deliberative process.</div> <div> </div> <div>6) Corporate political expenditures violate shareholders' rights to withhold funds from messages they disagree with.</div> <div>Two problems here. First, like members of any free association, shareholders have an absolute and easy-to-exercise right to exit from any corporation -- in this instance, by simply selling their shares and relocating their investments. It is true that mutual funds and retirement accounts can complicate things, but shareholders maintain the ultimate legal right of control over their assets, including initial investment decisions. In any event, the level of "message subsidy" involved in most of these cases will be so diffuse as to be negligible, especially when compared to government policies and messages that taxpayers must fund despite strong disagreement. Second, corporations commonly disseminate non-political messages and make corporate decisions, including charitable donations, that might strongly offend shareholders. This is tolerated as part of the trade-off inherent in the structure of corporate governance, wherein shareholders voluntarily surrender control of their companies' day-to-day operations in exchange for the efficiencies of corporate decision-making.</div> <div> </div> <div>7) This decision will harm Republicans by rallying public opinion in favor of populist-progressive reform and against the "conservative" Supreme Court majority that decided the case.</div> <div>While four members of the Citizens United majority might fairly be called conservatives, the actual author of the opinion was Justice Kennedy, who defies easy political categorization. In the past few years, he has been repeatedly toasted in liberal circles for penning such sweeping decisions as Lawrence v. Texas and Kennedy v. Louisiana, declaring a constitutional right to sodomy and forbidding the death penalty for non-homicidal child rape, respectively. At the very least, those opinions give him some credibility as an independent voice. But perhaps more importantly, a recent <a href="http://www.gallup.com/poll/125333/Public-Agrees-Court-Campaign-Money-Free-Speech.aspx">Gallup poll</a> shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights, and that the government should not attempt to protect its citizens from hearing seductive messages put out by sinister, powerful interests.</div> </div> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTk4OTA4YzlkMDg5ZmQyMWQ3OTFiZjM4OWIxMmYxNGI= Mon, 25 Jan 2010 10:54:57 -0400 This Day in Liberal Judicial Activism-January 24 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MTY0NzhhMzQ2OGFiMzY1Mzc3NzUyNjQ4YjY4NTRiZjQ= 1990—President George H.W. Bush nominates New Hampshire supreme court justice David Hackett Souter to a seat on the First Circuit. In a tragic blunder, less than three months after Souter accepts his First Circuit appointment, President Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement. Deploying his <a title="http://bench.nationalreview.com/post/?q=ZjJkOWFlMTFmNWZmNjM5ZTM1YWIxMmJkZTZiZDYzNTk=" href="http://bench.nationalreview.com/post/?q=ZjJkOWFlMTFmNWZmNjM5ZTM1YWIxMmJkZTZiZDYzNTk=">full arsenal of clichés</a>, Teddy Kennedy rails against Souter’s Supreme Court nomination. His efforts, alas, prove unsuccessful. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MTY0NzhhMzQ2OGFiMzY1Mzc3NzUyNjQ4YjY4NTRiZjQ= Sun, 24 Jan 2010 08:00:00 -0400 This Day in Liberal Judicial Activism-January 23 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NTRjZWY3YzhlMjk3ZWFiNDRkNzE1ODdhNjE1YzFlMTI= 1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene. After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.” Some five years later, in <a title="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=487&invol=815" href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=487&invol=815">Thompson v. Oklahoma</a>, a four-Justice plurality (opinion by Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun) imagines “evolving standards of decency” under the Eighth Amendment that (as Justice Scalia’s dissent aptly summarizes it) forbid the determination that any “criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime.” (As Scalia points out in a later <a title="http://www.law.cornell.edu/supct/html/03-633.ZD1.html" href="http://www.law.cornell.edu/supct/html/03-633.ZD1.html">dissent</a>, the same folks who think that minors can’t possibly be mature enough to be held fully responsible for murders they commit insist that juveniles are mature enough to get an abortion without parental consent, but “[w]hether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”) 1992—In Hodges v. State, the Florida supreme court reviews the death sentence of a man who, on the morning that he was scheduled for a hearing on a charge of indecent exposure, shot to death the 20-year-old female clerk who had complained of his conduct. Chief justice Rosemary Barkett, in solo dissent from the court’s affirmance of the death sentence, opines that the two statutorily defined aggravating factors on which the death sentence had been based—witness elimination and a killing that was cold, calculated, and premeditated—were “so intertwined that they should be considered as one” and votes to vacate the death sentence. Her dissent makes no effort to distinguish her court’s own precedent that permitted aggravators to be counted separately where they relate to “separate analytical concepts.” Despite—or, rather, because of—her <a title="http://bench.nationalreview.com/post/?q=MDdiOGRhNTFiMmZkMmY0NTRhMWE2NGMyMzEyYWFmZmY=" href="http://bench.nationalreview.com/post/?q=MDdiOGRhNTFiMmZkMmY0NTRhMWE2NGMyMzEyYWFmZmY=">stunningly terrible record</a> as a judge, President Clinton nominates Barkett to the Eleventh Circuit in 1993, and, with overwhelming support from Senate Democrats (an “outstanding jurist,” quoth Teddy Kennedy), she is confirmed and appointed in 1994. She remains on the Eleventh Circuit, where she has continued her malfeasance. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTRjZWY3YzhlMjk3ZWFiNDRkNzE1ODdhNjE1YzFlMTI= Sat, 23 Jan 2010 08:00:00 -0400 This Day in Liberal Judicial Activism-January 22 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MzAyZjk5YzYzZjJmM2IxYTQwZTM1ZDUxMmY0MjhiNmM= 1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings. In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion. Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth. Despite scathing criticism, including from supporters of abortion (see point 2 <a title="http://www.eppc.org/publications/pubID.2377/pub_detail.asp" href="http://www.eppc.org/publications/pubID.2377/pub_detail.asp">here</a>), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MzAyZjk5YzYzZjJmM2IxYTQwZTM1ZDUxMmY0MjhiNmM= Fri, 22 Jan 2010 08:00:00 -0400 Next Up: Congress -- By: Bradley A. Smith webmaster@nationalreview.com (Bradley A. Smith) http://bench.nationalreview.com/post/?q=YmFkM2FhZDQyOWYwNDI5OGU4ZDgzOTFjYzEwY2EzNDc= Examing the congressional reaction to Citizens United v. FEC, we start with the always entertaining Alan Grayson, who last week preemptively introduced a package of bills with such bombastic titles as "The Corporate Propaganda Sunshine Act," the "Defund the Crooks Act," and the "Business Should Mind Its Own Business Act." One would <a href="http://www.thomas.gov/cgi-bin/bdquery/D?d111:7:./temp/~bdK4ne::|/bss/|">impose</a> a 500 percent tax on any corporate political spending. Another would <a href="http://www.thomas.gov/cgi-bin/bdquery/D?d111:11:./temp/~bdK4ne::|/bss/|">prohibit</a> trading in any company that refused to abide by the pre-Citizens United law. That these proposals are clearly unconstitutional doesn't matter much to Mr. Grayson, who only has eleven months left in Congress to make his reputation and gain that slot guest hosting for Keith Olbermann. It's highly doubtful they could ever pass, anyway. In a more serious effort, so-called reform groups have pledged <a href="http://motherjones.com/mojo/2009/12/campaign-finance-reformers-bracing-citizens-united-decision ">$4 million</a> to using the Citizens United decision to press for passage of what's called the "Fair Elections Now Act," which would provide for government funding of congressional campaigns. And here, they may have the votes, at least to move something in the House. -- Bradley A. Smith Josiah H. Blackmore II/ Shirley M. Nault designated professor of law at Capital University Law School. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YmFkM2FhZDQyOWYwNDI5OGU4ZDgzOTFjYzEwY2EzNDc= Thu, 21 Jan 2010 18:17:07 -0400 Stevens Stumbles? -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=ZGQxNTIyMjBjZGI4MDc1ZDlmNmYzZDA3NmRkYjUwZTM= Jan Crawford has a <a href="http://www.cbsnews.com/blogs/2010/01/21/crossroads/entry6125041.shtml?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+CBSNewsCrossroads+(Crossroads+-+CBS+News)">post on her new blog</a> that is likely to prompt further speculation about a potential retirement at term's end. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZGQxNTIyMjBjZGI4MDc1ZDlmNmYzZDA3NmRkYjUwZTM= Thu, 21 Jan 2010 18:02:18 -0400 "Theology On Tap" Event in D.C. Area -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MWIyZTY4OGQxY2M1NzY2MTA2MTJiOTI0YTVkNmFkZDc= Next Monday evening (Jan. 25), I will speak on “Overcoming Roe v. Wade” as part of the Theology On Tap series sponsored by the Catholic Diocese of Arlington. The series, which is intended for young adults, takes place at an Irish pub in Old Town Alexandria. More information <a href="http://www.arlingtondiocese.org/yam/documents/Winter2010TheologyonTap_001.pdf">here</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MWIyZTY4OGQxY2M1NzY2MTA2MTJiOTI0YTVkNmFkZDc= Thu, 21 Jan 2010 16:14:06 -0400 Stevens's Dissent -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OGM2NDk5ZGE1NjQ4Y2FkOTI3N2ZkYTUwYmE4MTg0Y2I= I’m still working my way through Justice Stevens’s 90-page dissent (joined by Ginsburg, Breyer, and Sotomayor)—more precisely, an opinion concurring in part (in the majority’s rejection of the challenge to disclaimer and disclosure requirements) and dissenting in part (from the majority’s invalidation of section 441b’s limitation on independent corporate expenditures)—but it seems fair to say that Stevens vigorously takes issue with Justice Kennedy at every turn. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OGM2NDk5ZGE1NjQ4Y2FkOTI3N2ZkYTUwYmE4MTg0Y2I= Thu, 21 Jan 2010 14:08:08 -0400 Citizens United Decision Means More Free Speech -- By: Paul Sherman webmaster@nationalreview.com (Paul Sherman) http://bench.nationalreview.com/post/?q=MGVlYzczZjZlMTM1YWVlYjJhMzA3NzJjMTVhYmUwZDg= Supreme Court observers have been waiting a long time for the decision in Citizens United v. FEC, the “Hillary: The Movie case” that was first argued last March, reargued in September, and finally decided today. For fans of the First Amendment, it was worth the wait. First, some background. During the 2008 election, the nonprofit group Citizens United wanted to make a film available on cable-on-demand that was critical of then-candidate Hillary Clinton. But because Citizens United is organized as a corporation, its speech was banned under the McCain-Feingold campaign-finance law. Citizens United challenged this ban, and on Thursday, Jan. 21, 2010, the U.S. Supreme Court handed down its ruling, striking down this provision of McCain-Feingold and reversing a previous ruling -- Austin v. Michigan Chamber of Commerce -- that permitted the government to ban corporations and labor unions from promoting or opposing political candidates. The ruling represents a tremendous victory for free speech and a serious blow to proponents of campaign-finance “reform,” who have roundly denounced the ruling and have all but predicted the downfall of the Republic as a result. But the reformers’ rhetoric is just that; the Court’s ruling will simply result in a more diverse mix of political speech, and that is a good thing for American democracy. The ruling in Citizens United is a straightforward application of basic First Amendment principles: “When Government seeks to use its full power . . . to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.” Despite this logic, the campaign-finance clique has denounced the ruling as “judicial activism” and claimed that it contradicts a century of laws banning corporate money in elections. But this view of history is simply wrong. Although corporations have been prohibited from giving money directly to candidates since 1907, bans on independent corporate spending in elections did not go before the U.S. Supreme Court until 1990 in Austin v. Michigan Chamber of Commerce -- a mere 20 years ago. The Court upheld the prohibition by a narrow 5-4 vote, but Austin was hardly a bedrock of constitutional law -- indeed, it was the first case in Supreme Court history to uphold a limit on independent political speech, which the Court in Citizens United correctly recognized as “a significant departure from ancient First Amendment principles.” By reversing Austin, the Court has now corrected its error and brought the regulation of corporate and union speech in line with the rest of First Amendment doctrine. When you hear reformers howl about the downfall of elections as a result of this ruling, consider that states like Missouri, Utah, and Virginia already allow corporations to spend unlimited amounts on political ads, and there’s no evidence that these states’ elections have been “corrupted” or “overwhelmed” by this additional political speech. And that is not surprising. After all, no matter how much money is spent to promote or oppose candidates, voters remain free to disagree with those views. And they often do, as well-financed but failed candidates Ross Perot, Steve Forbes, Mitt Romney, and, more recently, Jon Corzine can attest. But the reformers are not content to leave something as important as election results to voter free will. Their real complaint is not with the Supreme Court or its ruling in Citizens United, but with the First Amendment itself, which prohibits their efforts to empower government to micromanage political debate. The Founders saw the folly of that approach and gave us a First Amendment that rejected it in clear terms: “Congress shall make no law . . . abridging the freedom of speech.” Despite the reformers’ complaints, the ruling in Citizens United is faithful to the First Amendment, and that, ultimately, is the only test that matters. -- Paul Sherman is an attorney with the Institute for Justice, which litigates free-speech cases nationwide and filed a friend-of-the-court brief in the Citizens United case. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MGVlYzczZjZlMTM1YWVlYjJhMzA3NzJjMTVhYmUwZDg= Thu, 21 Jan 2010 13:42:24 -0400 What Was at Stake in Citizens United -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NzA5ZjRiMTNkYzU3NzMxYTdiZGY0ZTEwMWE1YzU0NWE= These passages (emphasis added; citations omitted) from Justice Kennedy’s excellent majority opinion (available, along with the other opinions, <a href="http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf">here</a>) in the 5-4 ruling starkly illustrate what was at stake: The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.… When word concerning the plot of the movie Mr. Smith Goes to Washington reached the circles of Government, some officials sought, by persuasion, to discourage its distribution. Under Austin, though, officials could have done more than discourage its distribution—they could have banned the film. After all, it, like Hillary, was speech funded by a corporation that was critical of Members of Congress. Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force. Modern day movies, television comedies, or skits onYoutube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech. Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design. And from the Chief Justice’s concurrence: The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzA5ZjRiMTNkYzU3NzMxYTdiZGY0ZTEwMWE1YzU0NWE= Thu, 21 Jan 2010 12:41:09 -0400 Re: Overruling Austin -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZTU2MzdmODg0MjNlNDdkMTY5NTZiNTFiMGIwNjM0YWM= These excerpts (citations omitted) from the Chief Justice’s concurring opinion illustrate why the Left may have ample reason to be upset with Solicitor General Elena Kagan for the grounds upon which she chose to defend Austin: Finally and most importantly, the Government’s own effort to defend Austin—or, more accurately, to defend something that is not quite Austin—underscores its weakness as a precedent of the Court. The Government concedes that Austin “is not the most lucid opinion,” yet asks us to reaffirm its holding. But while invoking stare decisis to support this position, the Government never once even mentions the compelling interest that Austin relied upon in the first place: the need to diminish “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that havelittle or no correlation to the public’s support for the corporation’s political ideas.” Instead of endorsing Austin on its own terms, the Government urges us to reaffirm Austin’s specific holding on the basis of two new and potentially expansive interests—the need to prevent actual or apparent quid pro quo corruption, and the need to protect corporate shareholders. Those interests may or may not support the result in Austin, but they were plainly not part of the reasoning on which Austin relied. To its credit, the Government forthrightly concedes that Austin did not embrace either of the new rationales it now urges upon us. [Multiple excerpts from brief and oral argument.] … To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited. Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZTU2MzdmODg0MjNlNDdkMTY5NTZiNTFiMGIwNjM0YWM= Thu, 21 Jan 2010 12:16:34 -0400 Citizens United and 'Conservative Judicial Activism' -- By: Richard Garnett webmaster@nationalreview.com (Richard Garnett) http://bench.nationalreview.com/post/?q=ZTk4MWNkZGJhZTg4NTMxMmFhMTUxN2U0MGYxZDNhNDA= <div dir="ltr">Blogospheric-commentators' predictions are, to put it mildly, not worth much. That said, one can assert confidently, without any fear of being contradicted or proved mistaken, that the Supreme Court's decision in the Citizens United case will trigger (and has already prompted) a flood of indignant denunciations of "conservative judicial activism." The op-eds write themselves, if they are not already written: "The Court's 'conservative' justices are not true 'conservatives' at all. They refused to defer to the politically accountable members of Congress who enacted the campaign-regulations at issue, and instead aggressively read their own policy judgments into the First Amendment, in order to produce a ruling that accords with their own ideological predispositions. Where's the 'restraint' now?" And so on.</div> <div dir="ltr"> </div> <div dir="ltr">The critics, if they really want to turn the "conservative hypocrisy" knife, might say, "how ironic that this overreach is announced the day before tens of thousands of marchers are expected to descend on Washington to protest, yet again, what they regard as the Court's overreaching exercise of raw judicial power in Roe v. Wade."</div> <div dir="ltr"> </div> <div dir="ltr">How should those of us who welcome today's decision -- and, in my view, everyone who is appropriately skeptical toward regulations of political and election-related speech should welcome it -- respond to these charges? Do they hit home?</div> <div dir="ltr"> </div> <div dir="ltr">Yes and no. They do have bite if directed at a "conservative" who purports to believe that federal judges should never invalidate on constitutional grounds acts of Congress or other legislatures. (Just as the "deference"-loving critics who lob the "conservative judicial activism" attack should squirm a bit when trying to defend "liberal" justices' hostility to school-voucher programs or bans on partial-birth-abortion.) But who, really, believes that? </div> <div dir="ltr"> </div> <div dir="ltr">So, can one endorse Citizens United (as I do) while criticizing (as I do) Roe v. Wade? Sure. ("Do you believe in infant baptism?" "Of course, I've seen it done.") What's wrong with Roe -- besides the fact that it constitutionalized an ersatz right to cause the death of another, vulnerable human being -- is that it (for the most part) removed by judicial decision from the arena of political debate a crucial and controverted moral question. Roe distorted, and short-circuited political dialogue, discussion, and even compromise. </div> <div dir="ltr"> </div> <div dir="ltr">Now, seen from the critics' perspective, Citizens United probably does the same thing, in that it tells those who (mistakenly) think that discomfort with the tone of election-related speech provides a justification for regulating or silencing that speech that the First Amendment does not permit them to write their squeamishness into law. The case is better understood, though, as a vindication of political freedom: In a free society, politics is messy. Roe was an attempt, but a dramatic failure, to tidy up politics by telling the pro-life side, in the name of the Constitution, to be quiet and go home. Citizens United, by contrast, tells those whose lives are made easier by laws that censor their critics, "listen!", and tells the rest of us, "speak up!"</div> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZTk4MWNkZGJhZTg4NTMxMmFhMTUxN2U0MGYxZDNhNDA= Thu, 21 Jan 2010 12:14:39 -0400 Overruling Austin -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OGEzOTkxZmFjOGI5MmQ0YWVkMmFlYWMzMWIzYzRmZWI= If the past is prologue, you can expect a lot of commentary from the Left alleging—falsely (as I discuss <a href="http://bench.nationalreview.com/post/?q=ZGVmZWRhZTdlMjUxMTVmZGY0ZTJjZTlkYmI1ZTI3NTc=">here</a>)—that Chief Justice Roberts and Justice Alito have somehow betrayed their confirmation testimony in voting to overrule the Court’s holdings on corporate speech in Austin v. Michigan State Chamber of Commerce and McConnell v. FEC. It’s worth emphasizing—as I discuss <a href="http://bench.nationalreview.com/post/?q=N2UyNjUyZmRhNTUzYmM1OTY0ZDVjNDI1Y2RjOGQ1YTA=">here</a> and as Justice Kennedy’s excellent majority <a href="http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf">opinion</a> and the Chief Justice’s strong concurrence (joined by Alito) elaborate—that Solicitor General Elena Kagan walked away from the Court’s actual rationale in Austin (which rationale had already been undermined by recent precedent) and that she instead advanced a defense of Austin that, as a strong proponent of the corporate campaign-finance provisions put it, would have required the Court “to reject, at least in part, one of the central tenets of [the landmark 1976 decision in] Buckley [v. Valeo].” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OGEzOTkxZmFjOGI5MmQ0YWVkMmFlYWMzMWIzYzRmZWI= Thu, 21 Jan 2010 11:49:47 -0400 Responsibility in the Court -- By: Allison Hayward webmaster@nationalreview.com (Allison Hayward) http://bench.nationalreview.com/post/?q=YjNmYWJiOTA2NGExYTdmNDRiMTBhNTFlMTg1MTE3NTQ= The Court finally took the issue of whether the Constitution protected independent spending by corporations head on. Good for the Justices. Notwithstanding the fact that this ban has been in federal law since the 1940s, and lived on with a wave to past court decisions that paid insufficient attention to the constitutional rights being burdened, the Court stepped up. NO doubt some will call this activism. I think it was the responsible course to take. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YjNmYWJiOTA2NGExYTdmNDRiMTBhNTFlMTg1MTE3NTQ= Thu, 21 Jan 2010 10:36:53 -0400 Freedom in Citizens United -- By: Steve Hoersting webmaster@nationalreview.com (Steve Hoersting) http://bench.nationalreview.com/post/?q=ODAwYTg1MmQ4NjA4NDY3MWJkY2JkMGZiYTVjMTAxYzU= Today, in Citizens United v. FEC, the Supreme Court overturned its 1990 precedent, Austin v. Michigan Chamber of Commerce, removing the prohibition on corporations seeking to finance independent, electoral advertising without using political action committees funded by employees. The Court also, and necessarily, invalidated McCain-Feingold’s ban on corporate electioneering advertising within 60 days of a general election. Corporate contributions to candidates, party committees, and political committees remain banned, whether direct or in-kind (think coordination). Corporate funding sources for ads that technically fall within the McCain-Feingold statute but are what the Court calls “genuine issue advocacy” in an earlier opinion (Wisc .Rt. to Life II) must still be disclosed. The Austin precedent was always an outlier, upholding as it did outright bans on corporate (and union) electoral speech to prevent “corrosive and distorting effects” on political debate by “large aggregations of wealth” garnered via the corporate form. In short, the Austin rationale was gussied up egalitarianism; silencing some to make way for others. This had always been “foreign to the First Amendment,” with the Court making clearer, since the high-water mark for regulation in McConnell v. FEC, and with the arrival of C.J. Roberts and J. Alito, that campaign finance restrictions are constitutional only to prevent the corruption of candidates that may one day act as elected officials. Justice Stevens dissented in a 90 page opinion. And Justice Thomas filed a partial dissent, probably on the matter of disclosure. More on those opinions in the near future. For now, there is little doubt that the Citizens United ruling will free up many more resources for politics in coming election cycles. We can expect existing unions to turn on the spigots even more openly, and for new entities to crop up to accept corporate money. The only real question is whether corporations brave enough to take advantage of the opinion, and go against the Democrats, will risk audits or the nationalization of their businesses. -- Steve Hoersting is vice president of the Center for Competitive Politics.<a href="https://mail.nationalreview.com/owa/redir.aspx?C=e8c8bf51b0584aa480decaa9ac696742&URL=http%3a%2f%2fwww.campaignfreedom.org" target="_blank"></a> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODAwYTg1MmQ4NjA4NDY3MWJkY2JkMGZiYTVjMTAxYzU= Thu, 21 Jan 2010 10:25:22 -0400 Campaign-Finance Reform & the Court, Before Tweeting -- By: Allison Hayward webmaster@nationalreview.com (Allison Hayward) http://bench.nationalreview.com/post/?q=ZWU0ODkzZmZmOTgwYWRjNTk2YWVlZmE1MDIxY2I3ODM= Campaign-finance lawyers, activists, fanatics, and the journalists who talk to them remain with knickers a-twist with yesterday's non-appearance of a ruling in Citizens United v. FEC (a/k/a the Hillary Movie case). But then, the Court announced a special sitting for today -- no arguments are scheduled, so one can infer that the Court will release at least one opinion. Surely the long-awaited CU opinion is a candidate, and there's much speculation about whether the Court is divided, unhappy, fighting, or worse. Funny, but about 34 years before, the Supreme Court was scrambling behind closed doors to get its reasoning together on another campaign-finance decision -- Buckley v. Valeo. The justices wanted to release the opinion by the end of January to deal with the new campaign-finance laws quickly and give guidance in the 1976 election cycle. Were press and pundits obsessing about the time the case was taking, or what the Court might do to overturn long-standing precedents in campaign finance? No. There was NO obsessing in the bar or in papers that I can find in the ProQuest historic papers collection. There was NOTHING in the Washington Post, which, given their triumph in Watergate, would be watching what was going on, if anybody was. Nobody stressed about the Buckley release, I suspect because nobody expected it to reconfigure Constitutional doctrine, bifurcating the scrutiny applied to expenditures as opposed to contributions. Even if some Bar members saw potential there, it would have been impossible for them to foresee how the resulting fragments moved against one another, and the consequences. Now, everybody knows the Court can (and has, more than once) reconfigured the constitutional doctrine in this area, so even a relatively narrow factual case like that presented in CU has immense importance. So we wait and watch. -- Allison Hayward teaches election law at George Mason University. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZWU0ODkzZmZmOTgwYWRjNTk2YWVlZmE1MDIxY2I3ODM= Thu, 21 Jan 2010 09:50:04 -0400 Citizens United Ruling This Morning? -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MDk4NDBkNDhjN2NmNmNlMGJmNDllOGMyZThmZTdiZmI= It appears that the Supreme Court will announce its much-awaited campaign-finance ruling this morning at 10:00 ET. I’ll be out of the office for a bit, but you can learn of the ruling quickly, and obtain the opinions, via <a href="http://www.scotusblog.com/">SCOTUSblog</a>. My previous commentary on the case is available <a href="http://bench.nationalreview.com/post/?q=ZGVmZWRhZTdlMjUxMTVmZGY0ZTJjZTlkYmI1ZTI3NTc=">here</a>, <a href="http://bench.nationalreview.com/post/?q=N2UyNjUyZmRhNTUzYmM1OTY0ZDVjNDI1Y2RjOGQ1YTA=">here</a>, and <a href="http://bench.nationalreview.com/post/?q=NmE5ZmMyYmMwOWQ5ZDNmMzA4NGY2ZjMwZWFiNWQxNWQ=">here</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MDk4NDBkNDhjN2NmNmNlMGJmNDllOGMyZThmZTdiZmI= Thu, 21 Jan 2010 09:48:32 -0400 Judge Martin Confirmed -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=MjRlYWI5Mjg4ZGZmMDkwZGRjZDg2ZDNhNWM0ODE1ZDQ= Yesterday the Senate confirmed district court judge Beverly Martin to the U.S. Court of Appeals for the Eleventh Circuit, 97-0. As <a href="http://legaltimes.typepad.com/blt/2010/01/senate-confirms-circuit-judge-obamas-fourth.html">BLT notes</a>, this was the Senate's "first act of 2010." Just further evidence of Republican obstruction of President Obama's judicial nominees. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjRlYWI5Mjg4ZGZmMDkwZGRjZDg2ZDNhNWM0ODE1ZDQ= Thu, 21 Jan 2010 08:53:16 -0400 Liu v. Alito -- By: Jonathan Adler webmaster@nationalreview.com (Jonathan Adler) http://bench.nationalreview.com/post/?q=OTBlYjc1NWRmN2M3OGUyNGUyZTdkNDAyYmU3Y2NjYWI= Professor Goodwin Liu's <a href="http://www.acslaw.org/pdf/Alito%20testimony%20-%20FINAL.pdf">testimony</a> referenced by Ed Whelan below is available here. In it, as Ed descrbies, Prof. Liu allegged that then-Judge Alito was "at the margin, not the mainstream," and that the America envisioned by Judge Alito's judicial record was "not the America we know. Nor is it the America we aspire to be." Prof. Liu also co-authored <a href="http://www.acslaw.org/files/Alito_Death_Penalty.pdf">this report</a> on Judge Alito's record in capital cases for the American Constitution Society. For more on Professor Liu's approach to constitutional interpretation, see also his co-authored ACS book, <a href="http://www.acslaw.org/keepingfaith">Keeping Faith with the Constitution</a>. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OTBlYjc1NWRmN2M3OGUyNGUyZTdkNDAyYmU3Y2NjYWI= Thu, 21 Jan 2010 08:49:35 -0400 Ninth Circuit Candidate Goodwin Liu -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MzIxZmM1ZDUxODBlMTY4NmNlZDhlOGM3ZTIxMmRiNmQ= According to the Daily Journal (in an article currently available <a href="http://pda-appellateblog.blogspot.com/2010_01_01_archive.html#3259036229308118868">here</a> via How Appealing), President Obama is on the verge of nominating Berkeley law professor <a href="http://www.law.berkeley.edu/php-programs/faculty/facultyProfile.php?facID=4360">Goodwin H. Liu</a> to a seat on the Ninth Circuit. Liu distinguished himself during the Alito confirmation process by delivering <a href="http://bench.nationalreview.com/post/?q=ODc3NTFlOWZjODZkZjE4Mjk3OWQ2NWI4NzlkMGIxNWU=">patently demagogic testimony</a> against Alito. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MzIxZmM1ZDUxODBlMTY4NmNlZDhlOGM3ZTIxMmRiNmQ= Wed, 20 Jan 2010 16:25:33 -0400 Judge Walker's Wild Witchhunt-Part 4 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OWM4YzEyMTJiYzI1MWY5OGQ0NTU4NDVjYjFhMzM1Mzc= Insofar as it might (in a hypothetical alternative legal universe) be relevant to look to the messages of Prop 8’s sponsors to discern voter intent, the <a href="http://voterguide.sos.ca.gov/past/2008/general/argu-rebut/argu-rebutt8.htm">arguments</a> made by the Prop 8 sponsors in the official <a href="http://voterguide.sos.ca.gov/past/2008/general/pdf-guide/vig-nov-2008-principal.pdf">voter information guide</a> that the state of California sent to all voters would surely deserve priority over other messages. Here’s the full text (emphases in original) of those arguments: Proposition 8 is simple and straightforward. It contains the same 14 words that were previously approved in 2000 by over 61% of California voters: “Only marriage between a man and a woman is valid or recognized in California.” Because four activist judges in San Francisco wrongly overturned the people’s vote, we need to pass this measure as a constitutional amendment to RESTORE THE DEFINITION OF MARRIAGE as a man and a woman. Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, “domestic partners shall have the same rights, protections, and benefits” as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this. YES on Proposition 8 does three simple things: It restores the definition of marriage to what the vast majority of California voters already approved and human history has understood marriage to be. It overturns the outrageous decision of four activist Supreme Court judges who ignored the will of the people. It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage. Proposition 8 protects marriage as an essential institution of society. While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father. The narrow decision of the California Supreme Court isn’t just about “live and let live.” State law may require teachers to instruct children as young as kindergarteners about marriage. (Education Code § 51890.) If the gay marriage ruling is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage. We should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay. That is an issue for parents to discuss with their children according to their own values and beliefs. It shouldn’t be forced on us against our will. Some will try to tell you that Proposition 8 takes away legal rights of gay domestic partnerships. That is false. Proposition 8 DOES NOT take away any of those rights and does not interfere with gays living the lifestyle they choose. However, while gays have the right to their private lives, they do not have the right to redefine marriage for everyone else. CALIFORNIANS HAVE NEVER VOTED FOR SAME-SEX MARRIAGE. If gay activists want to legalize gay marriage, they should put it on the ballot. Instead, they have gone behind the backs of voters and convinced four activist judges in San Francisco to redefine marriage for the rest of society. That is the wrong approach. Voting YES on Proposition 8 RESTORES the definition of marriage that was approved by over 61% of voters. Voting YES overturns the decision of four activist judges. Voting YES protects our children. Please vote YES on Proposition 8 to RESTORE the meaning of marriage. These arguments should be taken to have their ordinary meaning. Set aside for now the question (an easy question, I believe) whether the objective meaning of these arguments appeals to constitutionally permissible or impermissible grounds for supporting traditional marriage. My limited point here is that a further inquiry into the subjective motivations of Prop 8’s sponsors has no bearing on that objective meaning. For what it’s worth, I’ll add that it’s my understanding that the pro-Prop 8 campaign’s overall messages were very much along the lines of its arguments in the voter information guide. See parts <a href="http://bench.nationalreview.com/post/?q=NzIyMWYxMTg2NGFkYjA2YzY1YmRmZmQ5MTU0YzAzM2Y=">1</a>, <a href="http://bench.nationalreview.com/post/?q=ZTAzYmE3NzVjMTEzNjczYjAyMDEwOThlMzBiZjFlYmM=">2</a>, and <a href="http://bench.nationalreview.com/post/?q=Mjc4ZjcxMzA2OWRkNmUxODE5NjZhNWI2ZmFmZTI4NGQ=">3</a> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OWM4YzEyMTJiYzI1MWY5OGQ0NTU4NDVjYjFhMzM1Mzc= Wed, 20 Jan 2010 11:01:33 -0400 Judge Walker's Wild Witchhunt-Part 3 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=Mjc4ZjcxMzA2OWRkNmUxODE5NjZhNWI2ZmFmZTI4NGQ= Even if it were proper for Judge Walker to try to discern the subjective motivations of California’s voters in adopting Prop 8, there is no basis for Walker’s peculiar and convenient assumption that the messages of Prop 8’s sponsors played some determinative role in shaping a voter’s decision to vote for Prop 8. In his oral ruling at the summary-judgment hearing, Walker, in explaining why trial was supposedly necessary on the issue of discriminatory intent, stated: Plaintiffs point to evidence of the disconnect between the Proposition 8 campaign messages, [on the one hand,] and the state interests claimed[, on the other,] to argue that whether Proposition 8 was passed with a discriminatory intent remains in dispute. Given all the discussion about Prop 8 in newspapers, on television and radio, among friends and neighbors, and on the Internet, what possible basis is there for giving central importance to this purported disconnect between the messages of Prop 8’s sponsors and the state interests that Prop 8 advances? See parts <a href="http://bench.nationalreview.com/post/?q=NzIyMWYxMTg2NGFkYjA2YzY1YmRmZmQ5MTU0YzAzM2Y=">1</a> and <a href="http://bench.nationalreview.com/post/?q=ZTAzYmE3NzVjMTEzNjczYjAyMDEwOThlMzBiZjFlYmM=">2</a> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=Mjc4ZjcxMzA2OWRkNmUxODE5NjZhNWI2ZmFmZTI4NGQ= Wed, 20 Jan 2010 10:58:39 -0400 This Day in Liberal Judicial Activism-January 20 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NGQ4MDA2ZmM5NjhkYWE0Y2U2OTE4ZWVkZDNjMWFlZDI= 1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine. To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGQ4MDA2ZmM5NjhkYWE0Y2U2OTE4ZWVkZDNjMWFlZDI= Wed, 20 Jan 2010 08:00:00 -0400 Judge Walker's Wild Witchhunt-Part 2 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZTAzYmE3NzVjMTEzNjczYjAyMDEwOThlMzBiZjFlYmM= Does Proposition 8’s restoration of the traditional definition of marriage amount to unconstitutional discrimination against homosexuals? Rather than decide this question, one way or the other, as a matter of law, Judge Walker concluded—with few if any signs of careful analysis—that this question turns on various factual issues that need to be resolved through trial testimony. One of those factual issues is whether Proposition 8 was “passed with animus.” (I’m quoting from the transcript of the October 14, 2009, summary-judgment hearing.) In other words, rather than decide whether the traditional definition of marriage necessarily reflects an irrational animus against homosexuals, Walker is purporting to conduct a factual determination of the subjective intentions of the more than seven million California voters who supported Proposition 8. Let’s start with the patent absurdity of the task of determining the subjective intentions of more than seven million California voters. Walker himself implicitly acknowledges that there were legitimate, constitutionally permissible grounds for supporting Proposition 8. (If there weren’t, there would be no reason for a trial.) Set aside the fact that Walker has given no guidance on the line between legitimate and illegitimate grounds. How can he possibly discern on what grounds various California voters acted? And even if he could, what about voters who had multiple grounds, some legitimate, some not? Is he going to determine which grounds predominated? Or does the existence of any illegitimate motive somehow taint the vote of someone who also had legitimate motives? Is Walker going to try to quantify the number of “bad” voters and then adjust the final tally on Proposition 8 to see whether it still would have passed? If so, is he also going to explore the motives of voters against Proposition 8, since it’s surely possible that some or many of them may have voted on illegitimate grounds (e.g., anti-religious animus)? Given how insane and unworkable Judge Walker’s factual inquiry into voter animus is, it should be no surprise that it’s contrary to established precedent. In Southern Alameda Spanish Speaking Organization v. City of Union City, 424 F.2d 291, 295 (9th Cir. 1970), the Ninth Circuit, addressing a claim that a city-wide voter referendum on zoning was racially motivated (rather than being based on legitimate environmental grounds), explained that Supreme Court precedent judged purpose “in terms of ultimate effect and historical context.” The subjective motivation of voters was therefore beyond the scope of judicial inquiry: Under the facts of this case we do not believe that the question of motivation for the referendum (apart from a consideration of its effect) is an appropriate one for judicial inquiry.… As the District Court noted, “There is no more reason to find that [the adoption of the referendum] was done on the ground of invidious racial discrimination any more than on perfectly legitimate environmental grounds …. If the voters’ purpose is to be found here, then, it would seem to require far more than a simple application of objective standards. If the true motive is to be ascertained not through speculation but through a probing of the private attitudes of the voters, the inquiry would entail an intolerable invasion of the privacy that must protect an exercise of the franchise. Similarly, the Sixth Circuit in 1997 re-affirmed that a court reviewing the constitutionality of a voter-adopted measure “may not even inquire into the electorate’s possible actual motivations for adopting a measure via initiative or referendum. Instead, the court must consider all hypothetical justifications which potentially support the enactment.” Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 n. 4 (6th Cir. 1997). The court relied on an earlier ruling (its 1986 decision in Arthur v. City of Toledo) in which it had carefully addressed Supreme Court precedent on the matter. In sum, Walker’s inquiry into the subjective motivations of California’s voters is an unlawful fool’s errand. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZTAzYmE3NzVjMTEzNjczYjAyMDEwOThlMzBiZjFlYmM= Tue, 19 Jan 2010 11:37:30 -0400 Judge Walker's Wild Witchhunt-Part 1 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NzIyMWYxMTg2NGFkYjA2YzY1YmRmZmQ5MTU0YzAzM2Y= <div> Over the coming week or so, you can expect plaintiffs’ counsel in the anti-Prop 8 to try to show that various sponsors of Prop 8 drew from their traditional religious beliefs unfavorable views of homosexual conduct; that the official campaign messaging must be deconstructed by left-wing academic partisans of same-sex marriage to reveal the messaging’s supposed hidden subtext of appeals to anti-homosexual bigotry; and that the votes of the more than seven million Californians who supported Prop 8 must be deemed to reflect that bigotry. This is the wild witchhunt that Judge Walker has authorized and indeed encouraged plaintiffs’ counsel to conduct as the prime attraction in his intended show trial. In this series of posts, I will outline how legally unsound and abusive this witchhunt is. In particular, I expect to develop the following points in roughly this order: 1. The legal question whether Proposition 8’s restoration of the traditional definition of marriage amounts to unconstitutional discrimination against homosexuals does not turn on the subjective motivations of the more than seven million California voters who supported Prop 8, much less on the motivations or messages of Prop 8’s sponsors. The question, instead, is whether the traditional definition of marriage necessarily reflects an irrational or otherwise impermissible animus against homosexuals (and Walker himself has conceded that the answer to that question is no). 2. Beyond Walker’s mistake of trying to determine voter intent based on the messages of Prop 8’s sponsors, it’s absurd to give those messages anything other than their ordinary meaning and to give wildly disproportionate weight to stray messages that did not reach a large audience. 3. Walker’s witchhunt, including his approval of scorched-earth document and deposition discovery of the internal communications of Prop 8 sponsors, threatens an unprecedented judicial intrusion on American politics and a trampling of cherished First Amendment rights of political participation.</div> <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzIyMWYxMTg2NGFkYjA2YzY1YmRmZmQ5MTU0YzAzM2Y= Tue, 19 Jan 2010 09:46:17 -0400 This Day in Liberal Judicial Activism-January 19 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MmM0YjAxOTA1M2M3MjY5ZmMzMGYxM2MzOGFhZWNjZDc= 1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution. 1989—Call it the Case of the Surprised Burglar. Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night. The former girlfriend, having received threats from him, was spending the night elsewhere. But her roommate was at home. When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field. Hudson was convicted and sentenced to death. In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MmM0YjAxOTA1M2M3MjY5ZmMzMGYxM2MzOGFhZWNjZDc= Tue, 19 Jan 2010 08:00:00 -0400 No Federal Recall -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=MDUyZTk5OGJhMTgwMmZiODQ2ODk3YmYzMWEwOTM2MDE= A blogger at Big Government calling herself "Liberty Chick" <a href="http://biggovernment.com/2010/01/17/is-new-jerseys-state-constitution-unconstitutional-campaign-to-recall-senator-menendez-turns-into-battle-of-the-constitutions/#more-60698">reports on an effort</a> afoot in New Jersey to place a recall of U.S. Sen. Robert Menendez before the people of the state. The New Jersey constitution has contained, since the mid-1990s, a provision that the "people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress." But upon receipt of the legally required petition for a recall election, complete with the many signatures needed, New Jersey Secretary of State Nina Wells has declined to accept the petition or to act on it, stating her office's determination that no recall of a U.S. senator can legally be conducted, notwithstanding the provision in the state constitution "Liberty Chick" is mighty upset about this, wanting to know how it can be that the New Jersey constitution is unconstitutional--if it is, how a mere executive branch official rather than a judge gets to say so--and why the electoral machinery of the state couldn't be employed in any event, even if the results have no legal force and only amount to a "no-confidence vote" in Menendez. Commenters at the BG site are for the most part pretty irate at what Wells has done. But Wells has this perfectly right. The term of a U.S. senator is six years, unconditionally, and nothing a state says to the contrary (even in its constitution) can have any effect on this fact. Even before the Seventeenth Amendment, when state legislatures rather than voters chose U.S. senators, no "recall" was possible. Under the Articles of Confederation, members of the unicameral Congress had one-year terms, were limited to serving three years in any six, were paid by their states, and could be recalled at any time by the legislatures that chose them. The framers of the Constitution consciously rejected every one of these features, fixing longer terms in place for both houses of the new bicameral Congress, imposing no term limits or rotation requirement, paying members out of the federal treasury, and making no provision for recall. The duration of a House member or senator's term of office is set by the Constitution that calls the office into being, and cannot be changed by the action of a state even through its constitution, either by alteration of the fixed term length or by giving a power to the people to shorten a serving member's term at the polls. The principle of the supremacy of the federal Constitution over each and every state constitution (declared in Article VI) is all we need to know here. And if the framers of the Constitution had wanted to make it possible for states to shorten the terms of senators, they knew how to frame language permitting that option. They didn't. And why shouldn't the state's secretary of state, an executive officer responsible for conducting its elections, make this determination? That same Article VI says "[t]he Senators and Representatives, the members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." An executive officer with Wells' responsibilities would be derelict in her duty if she were not to decline taking steps to violate the federal constitution by conducting an unauthorized "recall" election. And to expect her to go ahead and conduct the election anyway, on the supposition that although invalid the "recall" could still serve some public purpose as an informal "no-confidence vote," is to demand a double fraud of her--that she should both exercise power under an unconstitutional provision of state law and then violate even that provision by declaring that no recall had really taken place. Not to mention that scheduling and conducting this empty exercise would no doubt cost millions. Waiting for instruction from a judge before doing what's obviously right here would be the height of irresponsibility. Garden Staters gave themselves the dubious gift of Robert Menendez in the U.S. Senate by electing him in 2006. Barring his voluntary early resignation, or something still more untoward that we cannot wish on him, the 2012 election is the next chance the people of New Jersey get to weigh in on his continuance in office. UPDATE: "Liberty Chick" writes to tell me that she was not "mighty upset" but merely inquisitive about the issues in this situation. I stand corrected. Another reader inadvertently reminds me of an argument I forgot, which strengthens my case above: that there is a way to "recall" senators before their six-year term is completed. It's the removal power of the whole Senate over each of its members, by a two-thirds vote. (The House has the same power over its members.) The fact that this removal power is provided is further evidence that the framers did not contemplate--indeed considered and rejected--leaving a recall power in the hands of the states. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MDUyZTk5OGJhMTgwMmZiODQ2ODk3YmYzMWEwOTM2MDE= Mon, 18 Jan 2010 17:34:19 -0400 This Day in Liberal Judicial Activism-January 17 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NDI4ZjMyZTMwMGQ1YjZjYWRlY2I5MTgzMDhhZmJjYzk= 2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism,” and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler. But over the next two years Senate Democrats instead confirm only 10 appellate judges, and Keisler’s nomination is one of many to expire from inaction. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NDI4ZjMyZTMwMGQ1YjZjYWRlY2I5MTgzMDhhZmJjYzk= Sun, 17 Jan 2010 08:00:00 -0400 Anti-Prop 8 Trial: Week 1 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YWJkOWU2M2VmMzAwY2ZjNGNjMzYyMDQxOWQ1YWY2ZjM= I haven’t been closely following the day-to-day testimony in the anti-Prop 8 trial, but from various accounts I’ve read from folks on both sides (and on no side), the first week appears to have consisted of a lot of droning from left-wing academic partisans of same-sex marriage on issues that might bear on some people’s judgment on the policy question of how marriage should be defined but that would seem of dubious relevance to the constitutional question. Plus, the cross-examinations by counsel for the Prop 8 sponsors have been very effective in discrediting much of the academic testimony. I’d particularly recommend the <a href="http://www.adfmedia.org/News/PRDetail/3618">summaries</a> provided by the Alliance Defense Fund, though I’ll highlight that ADF, far from being neutral on the matter, is part of the team defending Prop 8. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YWJkOWU2M2VmMzAwY2ZjNGNjMzYyMDQxOWQ1YWY2ZjM= Sat, 16 Jan 2010 12:11:32 -0400 This Day in Liberal Judicial Activism-January 16 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ODE2ZDQ4YmE3ZDdiNWMyNTc2NjE5NTYyNjVkZWM3N2I= 2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake. When various religious groups sponsored an advertising campaign offering “healing for homosexuals,” the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads. In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODE2ZDQ4YmE3ZDdiNWMyNTc2NjE5NTYyNjVkZWM3N2I= Sat, 16 Jan 2010 08:00:00 -0400 Yet Another Notice to Revise the Local Rule Barring Broadcasting -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=M2ZkYmY1MzA2NzBmM2U2N2RiOTYwNzFkZDk3ZDZjODk= One mildly redeeming feature of Judge Walker’s procedural shenanigans is their bumbling, Keystone Kops quality. The latest example is yet another notice—supposedly posted on Tuesday and available, at least for now, <a href="http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d004888256d4e007bce29/1922d32e34847a5588257695007f5f75?OpenDocument">here</a>—that Walker issued extending until February 1, 2010, the deadline for comments on his purported revision of Local Rule 77-3 under the “immediate need” exception of 28 U.S.C. § 2071(e). Let me count the ways in which this notice is risible: 1. This is Walker’s fourth notice concerning the same attempted revision of Local Rule 77-3. (See an outline of the previous three <a href="http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY=">here</a>.) 2. This notice specifically states that the court “is interested in comments that pertain to the revised rule and NOT to its application to a particular case” (capitalization in original). But it’s Walker who, at the opening of the trial on Monday, tried to hide behind the fact that he had received so many comments requesting broadcast of his particular case, without disclosing (see third paragraph <a href="http://bench.nationalreview.com/post/?q=MjVhNDA5NmExOTAxNzMwMzAzNGFlZjQ3ZGRkODg5NDc=">here</a>) that the overwhelming number of those “comments”—some 99.8% of them—were signatures to a petition drive organized by a left-wing activist group “insist[ing] that the trial of Proposition 8 be televised”: Now, a good many of those comments, of course, related simply to the transmission of this case, and did not specifically address the rule change.… But I think it’s fair to say that those that favored coverage of this particular case implicitly also favored the rule change which would make an audiovisual transmission of this case possible. [Official Transcript for Jan. 11, 2010, at 12:2-9 (emphasis added).] Is Walker now trying to deter a counter-petition drive opposing broadcasting of the anti-Prop 8 trial? Don’t worry, Judge. There’s no longer any reason for that. 3. Whether or not the notice was actually posted on Tuesday (someone monitoring the broadcasting matter closely didn’t see it until yesterday), it’s obsolete now that the Supreme Court has ruled that the purported revision of Local Rule 77-3 under the “immediate need” exception of 28 U.S.C. § 2071(e) was unlawful. 4. Walker now needs to post a new notice. I’ll offer him some helpful advice. (If only he had listened to me <a href="http://bench.nationalreview.com/post/?q=ZTVhOGQ1YWExMDk1YTFlNGVkNTEzZWM0YjQwNDBmNDA=">before</a>….) Your new notice should be for a proposed revision to Local Rule 77-3. It should not be issued until after the Ninth Circuit Judicial Council has adopted clear and sensible guidelines for its pilot program. It should have a comment period of at least 30 days. It should state clearly that the proposed revision, if adopted, would not apply to any proceeding in which the trial has already commenced. And, if the Ninth Circuit’s guidelines don’t say so, the proposed revision should specify that no case in which any party objects to broadcasting shall be a candidate for the pilot program. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=M2ZkYmY1MzA2NzBmM2U2N2RiOTYwNzFkZDk3ZDZjODk= Fri, 15 Jan 2010 10:38:32 -0400 Judge Walker Continues Video Recording of Trial -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZDJjM2FhMzI5OTZkMGY1OGY1ZWU4M2VkM2M1YzRjNjU= Despite Wednesday’s Supreme Court order barring broadcast of the anti-Prop 8 trial, Judge Walker yesterday directed, over the objection of counsel for the Prop 8 sponsors, that video recording of the trial continue. His stated justification is twofold: (1) Local Rule 77-3 (the version lawfully in effect, apart from the purported amendments) prohibits recording only for the purposes of public broadcasting or televising; and (2) his purpose in recording the trial from this point forward is so that he can later review the video when making his findings of fact. This second prong of the justification is difficult to take seriously. An official transcript of the trial testimony is prepared on a daily basis, and the combined transcript will be the easiest source to review. (In the unlikely event that there were a material dispute over the accuracy of the transcript, the court reporter would consult the audio recording.) There is zero reason to believe that Walker will be making credibility determinations based on a witness’s demeanor, and even if he would be, the live testimony would give him the best basis for doing so. Given the joint shenanigans to date of Walker and Ninth Circuit chief judge Alex Kozinski, there’s ample reason to suspect that they’re intent on finding some means to broadcast the trial. Any witness who previously had reason to fear harassment will have continuing reason to do so if the recording continues. It’s worth noting that on Monday, in the aftermath of the Supreme Court’s initial interim order barring broadcasting, counsel for plaintiffs based his request for continued recording solely on the basis that the bar was temporary and might be lifted. (Official Transcript for Jan. 11, 2010, at 14-15.) Now that the bar on broadcasting will continue for the duration of the trial, that rationale has disappeared. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDJjM2FhMzI5OTZkMGY1OGY1ZWU4M2VkM2M1YzRjNjU= Fri, 15 Jan 2010 09:50:05 -0400 A Swing and a Miss -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=YTA4MjA0MjU1ZjU1OWY5ZDgzYmQ3MTFmYzc4NGFmMGM= I have to dissent from <a href="http://bench.nationalreview.com/post/?q=ZjQ2MmE3ZmUzZjAyYWU1NGU4MGJmMTc1ODJlNjc3Njc=">Roger Pilon's praise</a> of <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/01/13/AR2010011303460.html">George Will's column</a> this morning, which is riddled with bad reasoning in defense of the proposition that the courts should strike down a key element of the pending health-care "reform" bill." This is no home run but a sad swing and a miss. Once upon a time George Will could be counted on to resolutely oppose judicial activism, whether of left or right. While not always embracing activism explicitly, he has taken recently to putting the phrase in scare quotes and slamming conservatives who take the problem seriously. Or at least he slams us when we warn of its possible appearance on the right; he seems to remember it is a real problem when it appears on the left. And today he simply redefines it, endorsing "judicial activism understood as unflinching performance of the courts' role" as the protectors of "liberty" (his italics). As I've <a href="http://bench.nationalreview.com/post/?q=Njc0ZjZiOWZiMmNmNDcyMWU1MGZjNWVhYzJjYzExNWY=">noted before</a>, Will's recent fondness for the phrase "judicial activism" introduces unnecessary confusion into our constitutional conversation. For those wedded to originalism, "activism" is never used to describe the exercise of judicial review, on appropriate occasions, in defense of rights that are actually established by our Constitution. For originalists, that is, "activism" has always been a pejorative since the term was coined in the 1940s. The only people willing to defend "activism" as a good thing are living-Constitution advocates, who believe judges should not be constrained by the text and historic meaning of the document, but should "do justice" and keep our constitutional order "in tune with the times," while not worrying too much about traditional constraints on the uses of judicial power. Activism's defenders and critics agree on what it is; what they disagree about is whether it's a good or a bad thing. Will would be on stronger ground, therefore, if, instead of simply mocking concerns about "judicial activism," he made a case that judicial invalidation of the health-insurance mandate would not be activism. It's pretty telling that he won't or can't do that. For a guy who complains of activism's critics having "more vigor than precision" in their arguments, his column has a lot of loud stamping of feet and not much of a case for judicial action in the case that concerns him. I have to pause here to make a point often missed in these arguments: to be skeptical of the case for judicial review is not the same as to say that one sees no constitutional problems with a piece of legislation. I see some of the same constitutional problems George Will sees with the proposed health-care legislation. It represents a metastisization of government that legislators should oppose on constitutional grounds. It may be unprecedented for the federal government to make it punishable not to engage in a commercial transaction--or any activity at all--as in the proposed requirement that everyone buy health insurance. But I hardly think that the insurance mandate is going to be enforced in the case of people who never go to the doctor (even under ObamaCare, will we have roving bands of federal health-insurance cops checking on whether we've bought ours?). Most likely, the enforcement will come in when people actually seek health care, from doctors, hospitals, and other health professionals. Then, of course, there is a transaction that can form the basis of a fine or other penalty for not having health insurance. Is this a stretch, to say the least, under the commerce clause? Yes. Is it significantly more of a stretch than laws the courts have tolerated under that clause, with or without the aid of the necessary and proper clause? I can't see that it is. Were the courts right to tolerate those earlier laws? Will is cagey on that point; he's just sure (on not much of a basis) that this new law is ever so much worse than anything we've seen before. Roger Pilon is at least clear that he would have nullified lots of old laws the courts have upheld. For my part, I would find it difficult to locate proper grounds for judicial nullification of such a requirement. An alternative way for Congress to approach forcing people to buy insurance is simply to tax people who don't have it at higher rates than those who do. As Stuart Taylor notes in a <a href="http://www.nationaljournal.com/njmagazine/or_20091212_6842.php">National Journal column</a> Will cites, this approach has been argued by Yale's Jack Balkin, but Congress appears to be going with the commerce power instead. Balkin and I have disagreed plenty in the past, but judicially invalidating such a use of the taxing power would be pretty hard to justify. Is it constitutionally sound to use the taxing power to make such coercive inroads on people's liberty? No. Does it follow that courts can and should come riding to the rescue? Not at all. What else has Will got? Well, there's the argument that goes like this: If Congress can regulate this, it can regulate anything. This is an "if . . . then" proposition about future violence to the Constitution, parades of horribles that may not happen and whose logical connection to the present situation is asserted but not demonstrated. The trouble with the argument always is that it completely fails to answer the question, what's wrong with this? Congress exercises, or claims to exercise, its taxing power, or its commerce power, or a power implied by either of them and authorized as "necessary and proper." The argument "this goes too far" and thus breaches the bounds of enumerated (or even implied) powers is a really good argument, even a really good constitutional argument, in a legislature or on the hustings. But courts of law need to see injured rights that require vindicating. And abstract propositions about constitutional principles don't supply the needful in that setting. Oh but wait. Courts are our protectors of liberty, says Will. My, now there's a fine thing. Will America be a less free country if current proposals for health-care "reform" are passed? Yes. Therefore judicial review is warranted. Right? Wrong. This is a syllogism with no minor premise. Show us the warrant in the Constitution for a general supervisory power of the courts over questions of how free our country is, and you'll have one. But you can't, because it isn't in there. If you'd like to employ the "liberty" in the due process clause--a perennial favorite of judicial activists--you've just endorsed everything from Dred Scott to Roe v. Wade to Lawrence v. Texas. Oh, you just want the good uses of the due process clause to protect the right instantiations of "liberty"? Why didn't you say so? We'll just find ourselves some nice activist judges who agree with us and not with the other fellows. Roger Pilon at least recognizes that the premises for his preferences aren't to be found in the Constitution. Hence he desires the judicial enforcement of the Declaration of Independence. Somehow I am not reassured. Will thinks he's got some kind of grand-slam argument when he writes: "If Congress does something beyond its constitutional powers, that something does not become constitutional merely by Congress saying it is necessary for this or that." This is a true but banal statement. Here's an equally true and not banal one: If Congress does something beyond its constitutional powers, that something does not become a fit subject for judicial correction of congressional bad behavior merely by the Supreme Court saying that it does. In the American universe of potential injustices, there are run-of-the-mill political problems. Then there are constitutional problems. Then there are constitutional problems with judicial solutions. Will and Pilon want to collapse the second and third categories into each other--and accuse those of us who see all three categories with collapsing the first and second together. This is because their idea of constitutionalism is inseparable from an attachment to judicial supremacy. When you're this attached to judicial supremacy, your antibodies against judicial activism are fatally weak. And when it comes to the courts, our history amply teaches us to be careful what we wish for. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YTA4MjA0MjU1ZjU1OWY5ZDgzYmQ3MTFmYzc4NGFmMGM= Thu, 14 Jan 2010 16:45:34 -0400 Ramifications of Supreme Court Opinion Blocking Broadcasting-Part 3 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MmQwZDRhMzAzYzc4OWM0NWU5MmJlMTY4MjM3ZDU2Mjg= Judge Walker isn’t the only judge whose impartiality and judgment the Supreme Court’s opinion expressly calls into question. Ninth Circuit chief judge Alex Kozinski, who engaged in <a href="http://bench.nationalreview.com/post/?q=NDUwZjdjMTYzYmE3YTJmMjg5MjIzMDlmMGRiNjU3MjI=">joint gamesmanship</a> with Walker, also receives blame (in his capacity as chair of the Ninth Circuit Judicial Council) for evading procedural rules in order to broadcast the anti-Prop 8 trial and for hastily adopting a pilot program without putting in place carefully considered guidelines. (See, e.g., slip op. at 12, 14, 15.) Kozinski—whom, I repeat, I regard as an excellent judge when he’s not indulging his willfulness—has earned a reputation as a headstrong maverick. I’m sure that it’s no secret to the justices that he’s resorted to other <a href="http://bench.nationalreview.com/post/?q=MjMwOTM1NjI3MTg3YjkwN2YxN2I1Nzc3ZmY5MzU1N2Q=">hijinks</a> to favor the cause of same-sex marriage, and it’s a safe bet that his actions in this case deepened their distrust of him. The Ninth Circuit’s history of lawlessness means that any adventuresome ruling it makes reaches the Supreme Court with special suspicion attached to it. Kozinski’s course of conduct makes it likely that any Ninth Circuit ruling in favor of a constitutional right to same-sex marriage will be even more suspect. It would also be good for Kozinski to provide transparency—if not with the public, at least with his Ninth Circuit colleagues—on any further procedural decisions in this case (including panel assignment on appeal) to ensure that they are regular. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MmQwZDRhMzAzYzc4OWM0NWU5MmJlMTY4MjM3ZDU2Mjg= Thu, 14 Jan 2010 15:08:50 -0400 Health Care and the Constitution -- By: Roger Pilon webmaster@nationalreview.com (Roger Pilon) http://bench.nationalreview.com/post/?q=ZjQ2MmE3ZmUzZjAyYWU1NGU4MGJmMTc1ODJlNjc3Njc= George Will, baseball’s most articulate fan, <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/01/13/AR2010011303460.html">hit a home run</a> this morning. His examination of arguments for and against the constitutionality of Obamacare’s individual mandate takes his readers to fundamental constitutional questions and, in particular, to a dispute that has divided conservatives for decades -- about the proper role of the courts under our Constitution. True conservatives, Will concludes, will demand a principled “judicial activism.” They will insist that courts exercise their authority to resist “the conscription of individuals, at a cost of diminished liberty, into government's collective projects. So a constitutional challenge to the mandate serves two purposes: It defies a pernicious idea and clarifies conservatism.” Since the New Deal, the Supreme Court has held that Congress’s power to regulate interstate commerce amounts to a power to regulate anything that “substantially affects” that commerce -- and a power to order any means that may be “necessary and proper” for that regulation. Because uninsured people who seek free emergency-room care substantially affect interstate commerce, Congress can regulate that behavior by ordering those people to buy insurance. But the implications of that constitutional reading, Will notes, are boundless. If Congress can order you to buy insurance, why stop there? It can order you to exercise, and to eat healthy foods, etc. More disturbing still, it means that the Constitution itself and judicial review under it are no more. Which brings us to that branch of conservatism that has long called for judicial deference to democratic decisions: “Such people,” Will writes, “believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, ‘judicial activism.’” By contrast, “more truly conservative conservatives,” Will says, see government’s primary purpose not as satisfying majority preferences but as protecting liberty -- through an active judiciary, if necessary, consistent with constitutional powers and restraints. That judicial-restraint branch of conservatism arose, understandably, from the excesses of the Warren and Burger Courts, and it was no better defended than by Judge Robert H. Bork in his magisterial book, <a href="http://www.nationalreview.com/redirect/amazon.p?j=0684843374">The Tempting of America</a>. Speaking of what he called the “Madisonian dilemma,” Bork wrote that America’s “first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Its second principle, he continued, is “that there are some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.” Unfortunately, that gets Madison exactly backward. To be sure, the Founders, including Madison, stood for self-government -- as against government by some fraction of the people, including a king. That was their first political principle. But their first moral principle -- the reason they instituted government at all -- was individual liberty, as the Declaration of Independence makes plain and the Constitution, with its doctrine of enumerated powers and its recognition of both enumerated and unenumerated rights, makes equally plain as a legal memorialization of the Declaration’s promise. Indeed, the Founders did not throw off a king only to enable a majority to do what no king would ever dare. Instead, they instituted a plan whereby in “wide areas” individuals would be free simply because they were born free, while in “some areas” majorities would be entitled to rule not because they were inherently so entitled but because they were authorized to do so under a constitutional design. That gets the order right: individual liberty first; self-government second, as a means toward securing that liberty. So where did we go wrong such that today majoritarianism is dominant and liberty is too often its target -- and a supine judiciary generally defers to that regime? It came out of the Progressive Era, of course, and was finally instituted systematically by the New Deal Court, following FDR’s infamous court-packing threat. And the foundation of the constitutional inversion -- from “everything that is not given is retained” to “everything that is not retained is given” -- was the demise of the doctrine of enumerated powers, the idea that Congress has only those powers the people have given it, as enumerated in the document, the rest being retained by the states or the people. And that brings us back to Congress’s commerce power. If that power were understood by the Framers and the ratifying generation as the New Deal Court read it, the Constitution would never have been ratified, and the doctrine of enumerated powers would never have been championed as the centerpiece of the document. Indeed, if Congress, under that single power, could regulate anything and everything, there would have been no need to enumerate any of Congress’s other powers. The Framers could have stopped right there. But what is the principle of the matter? Assuming, that is, that judicial review is inherent in a written constitution that grants “The judicial Power” (Article III), and that the exercise of that power is essential if constitutional limits on governmental power are to be effected other than politically, how should courts do that in the case of the commerce power? Unfortunately, the constitutional text alone will not answer that question; if the Framers had foreseen what would be done with the power, they probably would have written it more precisely. As with numerous other constitutional provisions, judges must go beyond the vague or indeterminate text if they’re to be faithful to the understanding of those who ratified it. Thus, constitutional structure, history, and purpose all come to the fore. Drawing on those, the principle emerges. Consider structure: A reading of the commerce power that effectively renders many of Congress’s other enumerated powers superfluous, or that is inconsistent with other constitutional provisions, cannot be right. And concerning history and function, the power was given primarily to ensure the free flow of goods and services among the states in light of the protectionist measures states had begun to erect under the Articles of Confederation. It was, that is, a limited “free market” power -- precisely opposite its understanding today. That in fact is how Justice William Johnson read the power in his concurrence in the Court’s first great Commerce Clause case, Gibbons v. Ogden: “If there was any one object riding over every other in the adoption of the constitution, it was to keep the commercial intercourse among the States free from all invidious and partial restraints.” That is hardly, therefore, a power to regulate anything and everything that “substantially affects” interstate commerce for any reason whatsoever. It’s unfortunate that many conservative critics of the Warren and Burger Courts, with their focus on the “rights revolution” of that era, did not go back to the root of the problem, which was in the New Deal Court’s deference to the political branches and the expansion of government power that followed. Not only did that focus miss the main event, but it deprived conservatives of the powerful rights arguments that would otherwise have served to limit government’s powers. After all, the limited powers of government were granted not to “conscript individuals into government’s collective projects,” as Will puts it, but to protect their rights. If the health-care debate serves to refocus conservatives on the first principles of our constitutional order, the health of the nation will be the better for it. -- Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjQ2MmE3ZmUzZjAyYWU1NGU4MGJmMTc1ODJlNjc3Njc= Thu, 14 Jan 2010 14:50:16 -0400 Ramifications of Supreme Court Opinion Blocking Broadcasting-Part 2 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YzMxZjcwNDBjNGIxYzBhMjFlODdjYjFhNTliZmU2NGY= As these articles in the <a href="http://www.newyorker.com/reporting/2010/01/18/100118fa_fact_talbot?currentPage=all">New Yorker</a> and <a href="http://callawyer.com/story.cfm?eid=906575&evid=1">California Lawyer</a> discuss, the decision by Ted Olson and David Boies and their Hollywood backers to file a lawsuit challenging Proposition 8 as a violation of the federal Constitution was highly controversial among many advocates of same-sex marriage. Acceptance of, or at least acquiescence to, that decision appears to have come as a result of deference to the reputed strategic savvy of superlitigators Olson and Boies. But the Supreme Court’s order barring broadcast of the anti-Proposition 8 trial calls into question that supposed savvy. As law professor Dale Carpenter, an advocate of same-sex marriage, puts it in a Volokh Conspiracy <a href="http://volokh.com/2010/01/13/a-leading-judicial-indicator/">post</a>, yesterday’s Supreme Court ruling is a “potentially ominous development for pro-SSM litigants”: As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial.… As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath. All in all, it’s a bad start for the judicial challenge to Prop 8. I don’t mean to read too much into this early development, but it’s curious that the “dream team” of lawyers for plaintiffs paved the way for it happen. For example: Where was their strategic thinking when Walker <a href="http://bench.nationalreview.com/post/?q=ZDFiYjJkY2NkZWI1YWY0OTczNmRhNGQzZWE2NDU0NjM=">surprised them early on</a> by pressing for an expansive trial of factual issues and associated discovery? When Walker revealed his plans to broadcast the trial, did they just get piggy and somehow fail to anticipate the need for Walker to take the proper procedural steps? And why, oh why, did they respond to obviously legitimate concerns about harassment and intimidation of pro-Prop 8 witnesses by taking the position (see point 4 <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">here</a>) that those witnesses deserve whatever comes their way? As Carpenter signals, the fact that Justice Kennedy joined, and probably wrote, the Court’s per curiam opinion may also raise real doubts about the soundness of what the New Yorker article calls Olson’s “self-assurance” in his reading of the Court. I’m certainly not going to predict that Olson won’t in the end achieve the Supreme Court victory that he’s been confidently promising. But he certainly didn’t tee up the broadcast issue well for his clients. And I’m also willing to bet that he wildly misread the prospect that the Court would rule as it did. As the New Yorker article puts it, Olson sees the anti-Prop 8 case “as a way to make history.” The fears of other advocates for same-sex marriage that (in the words of one law professor quoted in the article) “there’s more ego than analysis” in his decision to pursue the case are surely more intense than ever. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YzMxZjcwNDBjNGIxYzBhMjFlODdjYjFhNTliZmU2NGY= Thu, 14 Jan 2010 14:14:22 -0400 Ramifications of Supreme Court Opinion Blocking Broadcasting-Part 1 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OTk5NTRhMDE4YjE5NGIwMDJkNTIwMGQxOTk3OTgzZGE= The Supreme Court’s order barring broadcast of the anti-Proposition 8 trial derails Judge Walker’s plan to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of the sponsors of Proposition 8. Further, the majority’s stinging rebuke of Judge Walker’s procedural irregularities strongly signals that at least five justices have serious questions about his impartiality and judgment in this matter. As I outlined in my initial <a href="http://www.eppc.org/publications/pubID.4021/pub_detail.asp">essay</a>, Walker was hellbent to broadcast the trial, presumably because of the massively increased coverage—on television and radio as well as on the Internet—that broadcasting would generate. The most plausible explanation for Walker’s peculiar refusal to decide this case (one way or the other) as a matter of law and instead to concoct all sorts of factual questions that supposedly need to be resolved at trial is that Walker wanted lots of material for his show trial. In light of the Supreme Court’s broadcast bar, Walker should now be asking himself, “Why throw a show trial if hardly anyone is watching?” It’s possible as well that Walker imagined that his factual findings at trial would receive deferential review on appeal and thus help insulate his legal ruling from being reversed. Even before yesterday’s ruling, it struck me as farfetched that any Supreme Court justice would think that the question whether there is a federal constitutional right to same-sex marriage might turn on how a trial judge resolves contestable issues of fact. The idea that findings by Walker might play such a role is all the more ludicrous now that his impartiality has been so discredited. Recall that, in addition to the Supreme Court’s order, Walker has already been <a href="http://www.ca9.uscourts.gov/datastore/opinions/2010/01/04/0917241ao.pdf">overruled</a> by a Ninth Circuit panel (of three Clinton appointees, no less) on an important discovery question: The panel ruled that Walker, in his sweeping order authorizing the plaintiffs to obtain access to the private communications of Proposition 8’s sponsors on campaign strategy, grossly underprotected the First Amendment associational rights of the campaign sponsors. Further, as even a Washington Post editorialist who is a self-described supporter of same-sex marriage has <a href="http://bench.nationalreview.com/post/?q=NThjODE2OWRlN2FjMDlkNjk5OTBiMTVjMzdkYTVjN2Q=">put it</a> in condemning Walker’s procedural shenanigans on the broadcast issue, Walker has flagrantly violated his duty to “be impeccably fair, [to] adhere without agenda to the rule of law and [to] be as transparent as possible.” This raises in the editorialist’s mind the natural question, “If I can't trust Judge Walker to be unflinchingly fair about something that simple, how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake?” The short answer that should be clear to everyone by now: You can’t, and neither can anyone else. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OTk5NTRhMDE4YjE5NGIwMDJkNTIwMGQxOTk3OTgzZGE= Thu, 14 Jan 2010 13:20:12 -0400 This Day in Liberal Judicial Activism-January 14 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=M2Q1MjRiMjQ3Yjc4MGQ4ODFjNDViOWZhNTRhYTI2MGY= 1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for <a href="http://bench.nationalreview.com/post/?q=ODk1ZDE3YTBlOTNkNjE2MTIxMWYzNzdiYmY3YjFmZmQ=">May 22</a>, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=M2Q1MjRiMjQ3Yjc4MGQ4ODFjNDViOWZhNTRhYTI2MGY= Thu, 14 Jan 2010 08:00:00 -0400 A Great Scholar Has Died -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=MDMwODgwZWI0NDk4YWQ2ZjNmNDMxNTAwOTU3MDA4NGM= I've just caught up on the news at <a href="http://corner.nationalreview.com/post/?q=Y2NlOWYxZjk1NGM1ZWQ4MTg0ZGU0ZWZmNjc5NmU4NjM=">The Corner</a> and on the <a href="http://blog.american.com/?p=9314">American Enterprise Institute's site</a> that the great political scientist Robert A. Goldwin died yesterday. Goldwin wrote the single best book on the origins of the Bill of Rights, <a href="http://www.aei.org/book/94">From Parchment to Power</a> (1997). A few years before the book's publication, I had the privilege of joining Goldwin on an APSA panel on the Bill of Rights, while his thoughts on this subject were still in embryo. It was a brief encounter with deep learning and nimble insights that has stuck with me ever since. He was a great impresario of ideas, editing a wonderful series of AEI essay collections on the Constitution in the 1980s and 1990s, in connection with the bicentennial. But Goldwin's own output, never voluminous, was invariably more interesting than what he solicited from others. I never read anything by him from which I didn't learn something worth knowing. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MDMwODgwZWI0NDk4YWQ2ZjNmNDMxNTAwOTU3MDA4NGM= Wed, 13 Jan 2010 21:25:25 -0400 Selected Excerpts from Supreme Court Opinion Blocking Broadcasting -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MzUxYmY0MDZlOWU5Yjg3NzU5NWJhZmUyNDdmM2Q1ODU= Here’s a quick stab at some key excerpts from the per curiam majority <a href="http://www.scotusblog.com/wp-content/uploads/2010/01/Perry-order-opinion.pdf">opinion</a> (some internal citations omitted): We … determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.… The amended version of Rule 77-3 appears to be invalid. In amending this rule, it appears that the District Court failed to “giv[e] appropriate public notice and an opportunity for comment,” as required by federal law. 28 U. S. C. §2071(b). The first time the District Court asked for public comments was on the afternoon of New Year’s Eve. The court stated that it would leave the comment period open until January 8. At most, the District Court therefore allowed a comment period spanning five business days. There is substantial merit to the argument that this was not “appropriate” notice and an opportunity for comment. Administrative agencies, for instance, “usually” provide a comment period of “thirty days or more.”… The need for a meaningful comment period was particularly acute in this case. Both courts and legislatures have proceeded with appropriate caution in addressing this question.… At trial the District Court explained that the immediate need here was to allow this case to be broadcast pursuant to the Ninth Circuit’s new pilot program. This does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law.… Applicants also have shown that irreparable harm will likely result from the denial of the stay. Without a stay, the District Court will broadcast the trial. It would be difficult—if not impossible—to reverse the harm from those broadcasts.… Some of applicants’ witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment. These concerns are not diminished by the fact that some of applicants’ witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country. Applicants may not be able to obtain adequate relief through an appeal. The trial will have already been broadcast. It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings.… The Court’s interest in ensuring compliance with proper rules of judicial administration is particularly acute when those rules relate to the integrity of judicial processes. The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow broadcasting of this high-profile trial without any considered standards or guidelines in place.… By insisting that courts comply with the law, parties vindicate not only the rights they assert but also the law’s own insistence on neutrality and fidelity to principle. Those systematic interests are all the more evident here, where the lack of a regular rule with proper standards to determine the guidelines for broadcasting could compromise the orderly, decorous, rational traditions that courts rely upon to ensure the integrity of their own judgments. These considerations, too, are part of the reasons leading to the decision to grant extraordinary relief.… In the present case, by contrast [to the “precise and detailed guidance” that Congress provided for closed-circuit televising for victims’ families of the Oklahoma City bombing trial], over a span of three weeks the District Court and Ninth Circuit Judicial Council issued, retracted, and reissued a series of Web site postings and news releases. These purport to amend rules and policies at the heart of an ongoing consideration of broadcasting federal trials. And they have done so to make sure that one particular trial may be broadcast. Congress’ requirement of a notice and comment procedure prevents just such arbitrary changes of court rules. Instead, courts must use the procedures prescribed by statute to amend their rules.… If Local Rule 77-3 had been validly revised, questions would still remain about the District Court’s decision to allow broadcasting of this particular trial, in which several of the witnesses have stated concerns for their own security.… [C]ourts in those districts [that] have allowed the broadcast of their proceedings [have done so] on the basis that those cases were not high profile or did not involve witnesses. Indeed, one District Court did not allow the broadcasting of its proceedings because the case “involv[ed] very sensitive issues.” This case, too, involves issues subject to intense debate in our society. The District Court intends not only to broadcast the attorneys’ arguments but also witness testimony. This case is therefore not a good one for a pilot program.... The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MzUxYmY0MDZlOWU5Yjg3NzU5NWJhZmUyNDdmM2Q1ODU= Wed, 13 Jan 2010 18:18:36 -0400 Supreme Court Blocks Broadcasting of Anti-Prop 8 Trial -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZjQyZDM5MzhlNDFjYzliOWVmMWEyZjgxNzk0NGViODI= <a href="http://www.scotusblog.com/prop-8-court-tv-blocked/">According to Lyle Denniston</a> on SCOTUSblog, the Supreme Court, following up on its earlier interim <a href="http://bench.nationalreview.com/post/?q=Y2NkOTQxM2M3Njg5NTY4ODY4ZGEyZTZkNGU0NTliYzc=">order</a>, has just issued an order barring broadcasting of the anti-Proposition 8 trial in California. The vote was 5 to 4. I’ll have more to say on the broader ramifications of this order once I’ve reviewed it and the accompanying opinion. For now, I’ll just observe that this is a significant, and well-deserved, victory for counsel for the sponsors of Proposition 8, led by Charles J. Cooper of Cooper & Kirk. Update: I’ve now read the excellent per curiam majority <a href="http://www.scotusblog.com/wp-content/uploads/2010/01/Perry-order-opinion.pdf">opinion</a>. The majority (the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito) rules that Judge Walker’s broadcast order should be stayed “because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting” and because irreparable harm would result from the denial of the stay. I’m pleased to say that the Court’s analysis is very much along the lines that I’ve spelled out in my recent NRO essay—“<a href="http://article.nationalreview.com/?q=MjcxNjc5MWZhOWVlZGQzZDUxZDlmMmM3ZTdhOGNiM2E=&w=MA==">Staging a Show Trial on Same-Sex Marriage</a>”—and in my Bench Memos posts. (Those lines were, of course, developed much more elaborately in the brief filed by counsel for the sponsors of Proposition 8.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZjQyZDM5MzhlNDFjYzliOWVmMWEyZjgxNzk0NGViODI= Wed, 13 Jan 2010 17:02:10 -0400 Waiting -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NzgzMWVlNzJmYzU0Yjg3NDViNGUwODA4ZWU1ZjZkYjc= Under its earlier interim <a href="http://bench.nationalreview.com/post/?q=Y2NkOTQxM2M3Njg5NTY4ODY4ZGEyZTZkNGU0NTliYzc=">order</a>, the Supreme Court was to issue another order by 4:00 ET today on the matter of barring broadcasting of the anti-Proposition 8 trial in California. As of now, I haven’t received word of any such order. My guess is that the order or an accompanying dissent is still being finalized and that the Court has orally conveyed to the Northern District of California that its earlier order shall remain in effect until the new order is issued this afternoon. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzgzMWVlNzJmYzU0Yjg3NDViNGUwODA4ZWU1ZjZkYjc= Wed, 13 Jan 2010 16:23:03 -0400 Washington Post Op-Ed Opposing Walker's YouTube Order -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NThjODE2OWRlN2FjMDlkNjk5OTBiMTVjMzdkYTVjN2Q= The op-ed page of today’s Washington Post features a <a href="http://voices.washingtonpost.com/postpartisan/2010/01/judge_jumped_the_gun_in_allowi.html">blog-post-turned-essay</a> by the Post’s Eva Rodriguez sharply criticizing Judge Walker’s YouTube order. Some excerpts (italics added): If I were a legislator, I'd vote to legalize same-sex marriage. And if it were up to me, I'd allow cameras in federal courts. So why am I having trouble with a federal judge’s decision to allow YouTube broadcasts of the trial challenging California’s gay marriage ban? Maybe it's because I think judges should be impeccably fair, adhere without agenda to the rule of law and be as transparent as possible, so that even those who disagree with their decisions may nevertheless respect those decisions. Judge Vaughn Walker, who is presiding over the gay marriage case, has failed on these counts. Walker performed legal pirouettes worthy of "Dancing with the Stars" to ensure cameras in his courtroom for the same-sex marriage trial.… [R]ather than accept that the legal framework for trial broadcasts was not yet in place, Walker cut corners and rushed through proposed changes in the proverbial dead of night -- on New Year's Eve, no less.… And he gave short shrift to opponents of gay marriage, who argued that broadcasting the proceedings would subject them to increased harassment by gay marriage supporters.… Judge Walker didn’t allow sufficient time for those and other concerns to be raised and considered. If I can't trust Judge Walker to be unflinchingly fair about something that simple, how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake? <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NThjODE2OWRlN2FjMDlkNjk5OTBiMTVjMzdkYTVjN2Q= Wed, 13 Jan 2010 08:21:14 -0400 Judge Walker's Gambit to Bamboozle the Supreme Court-Part 3 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NDUwZjdjMTYzYmE3YTJmMjg5MjIzMDlmMGRiNjU3MjI= The joint gamesmanship of Judge Walker and Ninth Circuit chief judge Alex Kozinski in support of their goal of televising the anti-Proposition 8 show trial has been so transparent that even a news <a href="http://www.law.com/jsp/article.jsp?id=1202437806024">article</a> in San Francisco’s legal newspaper refers matter-of-factly to their having “willfully orchestrated a break from official federal judiciary policy.” It appears that it was Kozinski (who can be an excellent judge on those occasions when he doesn’t succumb to his own willfulness or to his own admiration of his cleverness) who pushed Walker to make the <a href="http://bench.nationalreview.com/post/?q=ZmUzODM3NmE5NjkyNDJmOTdmNDMwYjEwYjM2MDNiMjk=">meaningless cosmetic rebranding</a> of his YouTube order. Some time on Friday—evidently after counsel for the Proposition 8 sponsors filed their emergency petition to the Ninth Circuit—Kozinski issued an order that granted Walker’s request to transmit real-time live streaming to designated federal courthouses and that stated that Walker’s supposed “request for posting the files of the videos on the district court’s website is still pending.” Never mind that there was no record that Walker had ever made such a request. Perhaps Kozinski and Walker privately worked out a revised request. Or perhaps Kozinski himself decided that the superficial cosmetics of the rebranded request—avoiding any reference to YouTube—would be better. In any event, Kozinski’s statement that the request was “still pending”—in an order that counsel for the Proposition 8 sponsors obviously weren’t aware of (their emergency petition states that there was no record that Kozinski had yet acted)—may well have been dispositive in the decision by the Ninth Circuit panel to deny the emergency petition. (Counsel for the plaintiffs made the ongoing pendency of the request their lead ground in opposing the subsequent request for a Supreme Court stay, but the Supreme Court, to its credit, saw through the gamesmanship.) Some time on Sunday, Kozinski sent a six-page letter to Judge Anthony Scirica, chairman of the executive committee of the Judicial Conference of the United States, and to James C. Duff, secretary of that body. Kozinski’s letter responded to a January 8 letter from Scirica and Duff in which they had written “to bring to [his] attention … the policy of the Judicial Conference of the United States which does not allow courtroom proceedings in civil and criminal trials in district courts to be broadcast, televised, recorded or photographed for the purpose of public dissemination.” Scirica and Duff asked Kozinski “to consider the Judicial Conference policy” in deciding whether to authorize televising the anti-Proposition 8 trial. Kozinski’s response to Scirica and Duff (which Walker entered into the record yesterday and which the plaintiffs and media supporters have since filed with the Supreme Court) is noteworthy in several respects. First, Kozinski again characterizes Walker’s request as a “request to place a video recording … on the Northern District’s website” and asserts that the request is “not ripe for decision” because “necessary technical issues have not yet been resolved.” Only a naif would not perceive Kozinski as trying to game the Supreme Court’s then-pending review of the stay application. Second, Kozinski contends that the Ninth Circuit’s pilot project “was developed after considerable deliberation and careful research.” Unlike Walker (see point 1 <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">here</a>), Kozinski doesn’t acknowledge that the entire program was driven by the desire to televise the anti-Prop 8 trial. Nor does he disclose that, unlike what you would expect from a product of “considerable deliberation and careful research,” there is no resolution, order, or other publicly available information setting forth the policies and procedures that will govern the new program. Indeed, if there really are “necessary technical issues have not yet been resolved,” that would be yet further evidence of Kozinski’s unseemly rush. Kozinski’s promise that “we will be proceeding with great caution” is belied by his course of conduct and cannot be taken seriously. Third, Kozinski contends that “there is no Judicial Conference policy prohibiting trial courts from placing video recordings of non-jury civil proceedings on their websites.” Insofar as Kozinski is contending that the Judicial Conference policy against public broadcast of civil proceedings in district court doesn’t apply to placing video recordings on websites, he’s making a fetish of technological developments and ignoring the fair-trial concerns that animate the Judicial Conference policy. (It’s also worth noting that the Supreme Court’s interim order yesterday blocks “broadcast” of the proceedings, which the Court clearly understand to include via Internet postings.) Insofar as Kozinski is contending that Judicial Conference policy doesn’t legally bind him, he’s correct, I think*—but that’s no warrant to be reckless of fair-trial concerns, including concerns about abuse and harassment of witnesses and other trial participants. Yet Kozinski says not a word about those concerns, notwithstanding the <a href="http://www.heritage.org/Research/Family/bg2328.cfm">extraordinary harassment</a> of Proposition 8 supporters that has previously occurred. This, of course, isn’t the first time that Kozinski has engaged in mischief with computer servers, as Judge Scirica, who wrote the <a href="http://www.ca3.uscourts.gov/opinarch/089050p.pdf">opinion</a> admonishing Kozinski for his “conduct exhibiting poor judgment,” is well aware. By making its interim order permanent, the Supreme Court would spare Kozinski from exhibiting further poor judgment in this case. * It’s interesting to note that Judge Walker has himself characterized the Judicial Conference policy to be binding. In General Order No. 58 (page 8 <a title="http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d004888256d4e007bce29/e8d5f1393c299474882575df0058d358/$FILE/Media%20Guide%2010.29.09.pdf" href="http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d004888256d4e007bce29/e8d5f1393c299474882575df0058d358/$FILE/Media%20Guide%2010.29.09.pdf">here</a>), which he issued in 2005, Walker stated: “Policy of the Judicial Conference of the United States prohibits, in both civil and criminal cases in all district courts, broadcasting, televising, recording, or photographing courtroom proceedings for the purpose of public dissemination.” In addition, his court’s 2009 <a title="http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d004888256d4e007bce29/e8d5f1393c299474882575df0058d358/$FILE/Media%20Guide%2010.29.09.pdf" href="http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d004888256d4e007bce29/e8d5f1393c299474882575df0058d358/$FILE/Media%20Guide%2010.29.09.pdf">General Information Guide for Journalists</a> states (on page 4): “Broadcasting of proceedings is prohibited by policy of the Judicial Conference of the United States.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NDUwZjdjMTYzYmE3YTJmMjg5MjIzMDlmMGRiNjU3MjI= Tue, 12 Jan 2010 12:01:41 -0400 Judge Walker's Gambit to Bamboozle the Supreme Court-Part 2 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MjVhNDA5NmExOTAxNzMwMzAzNGFlZjQ3ZGRkODg5NDc= A second matter that Judge Walker purported “to clarify” in the immediate aftermath of the Supreme Court’s interim <a href="http://bench.nationalreview.com/post/?q=Y2NkOTQxM2M3Njg5NTY4ODY4ZGEyZTZkNGU0NTliYzc=">order</a> yesterday barring Internet broadcasting of the trial was the series of <a href="http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY=">badly confused steps</a> by which he unsuccessfully tried to revise Local Rule 77-3 for the specific purpose of enabling televised coverage of his anti-Proposition 8 show trial. Among other things, Walker stated yesterday that a revision to Local Rule 77-3 was adopted at a “special court meeting not held for the purpose of considering an amendment to Rule 77-3, but for another purpose.” According to Walker, the revision was adopted “without a comment period, because it was a conforming amendment to Ninth Circuit policy.” Walker also acknowledged, again (see point 1 <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">here</a>), that the rush to amend Rule 77-3 was driven by his desire to televise the anti-Prop 8 trial. (Official Transcript for Jan. 11, 2010, at 10-11.) Walker’s effort to defend his purported revision of Rule 77-3 fails. First, there is no exception to the notice-and-comment requirements of 28 U.S.C. § 2071 for revisions of local rules that are intended to conform with circuit policy. (It’s also far from clear that the changes to circuit policy were lawfully implemented.) Second, as I discussed in point 3 <a href="http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY=">here</a>, the notion that there was an “immediate need” (under section 2071(e)) to revise Local Rule 77-3 to jumpstart implementation of the Ninth Circuit’s pilot program is absurd. The only “immediate need” that Walker perceived was the need to find some way to orchestrate the televised show trial that he has been intent on conducting. Walker’s eagerness to play circus master is also reflected in his announcement yesterday, predictably eliciting guffaws in the courtroom audience, that he had received 138,542 responses in favor of his purported revision to Local Rule 77-3 and 32 responses opposed. Walker didn’t see fit to note that 138,248 of the supportive responses were signatures solicited by an activist group called the Courage Campaign that launched a petition drive urging its supporters to sign their names to a letter to Walker that “insist[s] that the trial of Proposition 8 be televised.” (As I’ve <a href="http://bench.nationalreview.com/post/?q=ZGRlZjIxNTJlOTY2YjFlOTAyNzRiMjQyYjhkY2E2NzA=">noted</a>, it was that same Courage Campaign that produced a notorious anti-Prop 8 ad that appealed to anti-religious bigotry.) (Part 3 to come.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MjVhNDA5NmExOTAxNzMwMzAzNGFlZjQ3ZGRkODg5NDc= Tue, 12 Jan 2010 11:00:15 -0400 Judge Walker's Gambit to Bamboozle the Supreme Court-Part 1 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZmUzODM3NmE5NjkyNDJmOTdmNDMwYjEwYjM2MDNiMjk= Last Thursday, as part of his order for televised coverage of his anti-Proposition 8 show trial, Judge Vaughn Walker ordered “the transmission of these [trial] proceedings on a delayed basis to YouTube, for purposes of posting on the Internet so the proceedings can be made generally available.” (Official Transcript for Jan. 6, 2010, at 17:6-8.) Walker had his court’s IT expert explain to the parties in open session that “we’ve started up a YouTube channel”—“The YouTube address right now is youtube.com/usdccand … it’s like U.S. District Court California Northern District”—and that “Our intent is to upload the entire thing.” (6:9, 8:21, 9:3-5). In the immediate aftermath of the Supreme Court’s interim <a href="http://bench.nationalreview.com/post/?q=Y2NkOTQxM2M3Njg5NTY4ODY4ZGEyZTZkNGU0NTliYzc=">order</a> yesterday barring Internet broadcasting of the trial, Walker, who evidently remains as fervent as ever in his desire to televise the trial, tried to put lipstick on his pig by purporting “to clarify” a point: What the Court [i.e., Walker] has contemplated and what the Ninth Circuit pilot project contemplates is a posting on the Northern District of California website. It is not a Google YouTube posting that may be commonly understood. Rather, that service is under consideration as a conduit for posting an audio and visual feed pursuant to a contract that the government has with that service. (Official Transcript for Jan. 11, 2010, at 10:1-9.) Set aside Walker’s disingenuous effort to recast his latest change of course as a clarification. The cosmetic change that Walker is now proposing is substantively meaningless. It has zero bearing on the concerns that warranted the Supreme Court’s order. First, posting the video of the trial on the court’s website violates the version of the court’s Local Rule 77-3 that is lawfully in effect in exactly the same way that YouTube posting would. (See “<a href="http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY=">Judge Walker’s ‘Immediate Need’ for a YouTube Circus—Part 2</a>.”) Second, posting the video of the trial on the court’s website presents exactly the same potential for abuse and harassment of witnesses and other trial participants that YouTube posting would. As a tech-savvy colleague informs me, posting on the court’s website, as compared to posting on YouTube, makes it at least as easy (and, depending on the format of posting on the court’s website, perhaps even easier) for anyone to splice and dice the video, post highlights, overlay the video with text or special effects, and make alterations. There remains, in other words, the same possibility that any particular excerpt of any witness’s testimony or any counsel’s statement, whether or not presented fairly, could “go viral.” And the potential for abuse and harassment of witnesses and other trial participants remains thousands, if not millions, of times greater than an ordinary unrecorded trial would entail. (Walker has shown himself either desirous of, or wildly reckless about, this potential for enhanced abuse and harassment, as I discuss in points 3 and 4 of “<a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">Judge Walker’s ‘Immediate Need’ for a YouTube Circus—Part 1</a>” and in my essay “<a href="http://article.nationalreview.com/?q=MjcxNjc5MWZhOWVlZGQzZDUxZDlmMmM3ZTdhOGNiM2E=&w=MA==">Staging a Show Trial on Same-Sex Marriage</a>.”) If Walker thinks that his meaningless cosmetic revision will trick the Supreme Court justices, he’s taking them for fools. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZmUzODM3NmE5NjkyNDJmOTdmNDMwYjEwYjM2MDNiMjk= Tue, 12 Jan 2010 09:26:07 -0400 Bradley Smith's "The Myth of Campaign Finance Reform" -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NmE5ZmMyYmMwOWQ5ZDNmMzA4NGY2ZjMwZWFiNWQxNWQ= In anticipation of a possible Supreme Court ruling this morning or tomorrow in the Citizens United campaign-finance case, I’d like to call attention to an excellent essay, “<a href="http://www.nationalaffairs.com/publications/detail/the-myth-of-campaign-finance-reform">The Myth of Campaign Finance Reform</a>,” by law professor (and former FEC commissioner) Bradley A. Smith in the current issue of the outstanding new journal <a href="http://www.nationalaffairs.com/">National Affairs</a>. (My <a href="http://www.eppc.org/">Ethics and Public Policy Center</a> colleague, and frequent Corner contributor, Yuval Levin is editor of National Affairs.) Here’s Smith’s summary of his general argument: The century-old effort to constrict the ways our elections are funded has, from the outset, put itself at odds with our constitutional tradition. It seeks to undermine not only the protections of political expression in the First Amendment, but also the limits on government in the Constitution itself — as well as the understanding of human nature, factions and interests, and political liberty that moved the document's framers. Smith also explains how “each step in the effort to limit campaign spending turn[ed] out to advantage the party that sought it” and that campaign-finance laws could themselves therefore be seen to be a form of corruption. Smith’s account also suggests that previous federal efforts to bar corporate contributions to campaigns, such as the 1907 Tillman Act, may have been tolerated, and not been subjected to constitutional challenge, because they were so ineffective: “they did little to stem the overall flow of money into campaigns, due to weak enforcement mechanisms and various loopholes that could readily be exploited.” In other words, the history of non-enforcement and lawful evasion of those longstanding laws does not establish that they would be constitutionally permissible if they were effectively enforced and lacked readily exploitable loopholes. And those laws are not significant monuments on the legal landscape. The oldest precedent that might be overturned in Citizens United is the Court’s 1990 decision in Austin v. Michigan State Chamber of Commerce, but that’s a ruling that is widely regarded as in conflict with other precedents, and even Solicitor General Elena Kagan walked away from the Court’s actual rationale in Austin (as I discuss <a href="http://bench.nationalreview.com/post/?q=N2UyNjUyZmRhNTUzYmM1OTY0ZDVjNDI1Y2RjOGQ1YTA=">here</a>). [Cross-posted on The Corner] <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NmE5ZmMyYmMwOWQ5ZDNmMzA4NGY2ZjMwZWFiNWQxNWQ= Tue, 12 Jan 2010 08:19:43 -0400 This Day in Liberal Judicial Activism-January 12 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NTM4NDhlODE3YTU3OGMzNGU5ZDgyZDAwZTY4MTdlYjA= 1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker. Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no. Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.” As Seventh Circuit judge Richard A. Posner has written (see This Day for <a href="http://bench.nationalreview.com/post/?q=NTExM2Y2YzA0OGFmNWVhZWExZTYxZWEyMDViNmM2OGU=">April 4</a>, 1939), Douglas was certainly a bad man: “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice.… Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NTM4NDhlODE3YTU3OGMzNGU5ZDgyZDAwZTY4MTdlYjA= Tue, 12 Jan 2010 08:00:00 -0400 Re: Supreme Court Blocks Judge Walker's YouTube Order -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OWE3Yjc2MzdiNDQ4OGY2Y2Y5MjlmOGQzYjg1ZWQwMTY= It turns out that Justice Breyer dissented from the Court’s <a href="http://bench.nationalreview.com/post/?q=Y2NkOTQxM2M3Njg5NTY4ODY4ZGEyZTZkNGU0NTliYzc=">order</a> blocking Judge Walker’s YouTube <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">order</a>. (The text of the order that I had received didn’t include Breyer’s dissent.) I think that Breyer’s dissent is best read as objecting to the Court’s order only insofar as it bars transmission of the trial video and audio to other federal courthouses (and not insofar as it bars posting on YouTube). But it’s far from clear on that point. Here is its full text: I agree with the Court that further consideration is warranted, and I am pleased that the stay is time limited. However, I would undertake that consideration without a temporary stay in place. This stay prohibits the transmission of proceedings to other federal courthouses. In my view, the Court’s standard for granting a stay is not met. See Conkright v. Frommert, 556 U. S. ___, ___ (2009) (slip op., at 1-2) (Ginsburg, J., in chambers). In particular, the papers filed, in my view, do not show a likelihood of “irreparable harm.” With respect, I dissent. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OWE3Yjc2MzdiNDQ4OGY2Y2Y5MjlmOGQzYjg1ZWQwMTY= Mon, 11 Jan 2010 16:34:35 -0400 A Buckley Portrait -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MTgxMDU2YTUxOTA2ODFkNmI1MDk0NGE5ZDg3MWM0NmE= Adam J. White passes along this observation: I was sitting at the D.C. Circuit courthouse today, watching oral arguments, when I noticed that I was sitting under <a title="blocked::http://www.claudebuckley.com/images/port051.jpg" href="http://www.claudebuckley.com/images/port051.jpg">the portrait of Judge James Buckley</a>, WFB's brother. In the portrait -- painted by Claude Buckley, who is Reid Buckley's son and the judge's/WFB's nephew -- Judge Buckley sits next to a bookshelf containing three noticeable bits of memorabilia: First, a judicial reporter marked volume 424 -- obviously a reference to Buckley v. Valeo, 424 U.S. 1 (1976). Second, a polar bear -- a reference to his trips to the Arctic, and <a title="blocked::http://www.polarbearsinternational.org/board-and-advisory-council-members/" href="http://www.polarbearsinternational.org/board-and-advisory-council-members/">his love of polar bears</a>. And third -- the one of most obvious relevance to NRO -- is a book marked "WFB" on the spine. A lovely tribute to his brother. The WFB volume has no title, and it's quite a bit thicker than most of WFB's books. Most likely the artist and subject had no specific book in mind, but it appears to be roughly the same size as Miles Gone By, WFB's lovely "literary memoir," which was published in 2004 -- the same year that Judge Buckley's portrait was painted. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MTgxMDU2YTUxOTA2ODFkNmI1MDk0NGE5ZDg3MWM0NmE= Mon, 11 Jan 2010 15:41:38 -0400 Judge Walker's Stacking the Deck -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZDFiYjJkY2NkZWI1YWY0OTczNmRhNGQzZWE2NDU0NjM= In his excellent op-ed today in the New York Times—“<a href="http://www.nytimes.com/2010/01/11/opinion/11meese.html?ref=opinion">Stacking the Deck Against Proposition 8</a>”—former Attorney General Ed Meese outlines Judge Vaughn Walker’s very one-sided pre-trial rulings, including his decision to put the personal beliefs of Proposition 8’s sponsors on trial. This passage from an <a href="http://callawyer.com/story.cfm?eid=906575&evid=1">article</a> in California Lawyer also paints Walker as the moving force pressing for a trial of factual issues (when similar cases have elsewhere been decided as a matter of law): On July 2, Walker opened the case-management conference by emphasizing that his court was a trial court, not the U.S. Supreme Court. Later in the proceeding he asked [counsel for plaintiffs, Ted] Olson, "There certainly is some discovery that is going to be necessary here, isn't there?" "I'm not sure," Olson replied. "Is there discovery necessary? If there is, what is it? What form would it take?" <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDFiYjJkY2NkZWI1YWY0OTczNmRhNGQzZWE2NDU0NjM= Mon, 11 Jan 2010 12:47:18 -0400 Supreme Court Blocks Judge Walker's YouTube Order -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=Y2NkOTQxM2M3Njg5NTY4ODY4ZGEyZTZkNGU0NTliYzc= I’m very pleased to pass along that the Supreme Court has entered an interim order barring Judge Walker both from real-time streaming the anti-Proposition 8 trial to other federal courthouses and from permitting any YouTube (or other) broadcasting of the trial. The Supreme Court’s order remains in effect until Wednesday afternoon. In the meantime, the Court will decide whether to make it permanent. Here’s the full text of the Court’s order: Upon consideration of the application for stay presented to Justice Kennedy and by him referred to the Court, it is ordered that the order of the United States District Court for the Northern District of California, case No. 3:09-cv-02292, permitting real-time streaming is stayed except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held. Any additional order permitting broadcast of the proceedings is also stayed pending further order of this Court. To permit further consideration in this Court, this order will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=Y2NkOTQxM2M3Njg5NTY4ODY4ZGEyZTZkNGU0NTliYzc= Mon, 11 Jan 2010 11:39:34 -0400 Re: Application to Supreme Court for Stay of Judge Walker's YouTube Order -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZDY1NzAxMjM0MjdlOTQ5ZjllMjdiNWQ2OTY2NjI3ZDE= I’ll be out for a bit, so here’s a quick status report on where this <a href="http://bench.nationalreview.com/post/?q=ZTdmMjUyYzUzNTJlYjE0MTM4NDNmMWYwMWJhYWYwN2Q=">stay application</a> stands: 1. The Supreme Court requested and received a response from the anti-Proposition 8 plaintiffs midday yesterday. So far as I’ve heard, the Court has not yet ruled on the stay application. The trial is set to begin at 8:30 PT (11:30 ET), so I’d expect a ruling by then. (It’s possible that a ruling has just been issued in the last few minutes, but I haven’t seen any sign of that.) 2. On Friday, Ninth Circuit chief judge Kozinski issued an order authorizing “real-time live streaming to [designated] federal courthouses.” That order, and the designated courthouses, are available via the Northern District of California’s <a href="https://ecf.cand.uscourts.gov/cand/09cv2292/">web page</a> for the case. Kozinski’s order expressly states that Judge Walker’s YouTube request “is still pending.” It’s curious that Kozinski hasn’t ruled one way or the other on that. One unfortunate possibility is that he’s trying to game the applicants’ request for a stay by the Supreme Court (by making that request seem premature). <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDY1NzAxMjM0MjdlOTQ5ZjllMjdiNWQ2OTY2NjI3ZDE= Mon, 11 Jan 2010 10:18:21 -0400 This Day in Liberal Judicial Activism-January 11 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=OTY2N2UxY2Q0YTkzMTVkYmZiMTAyMDhkMmQ1ODkyNmM= 1954— President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice. Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition. But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OTY2N2UxY2Q0YTkzMTVkYmZiMTAyMDhkMmQ1ODkyNmM= Mon, 11 Jan 2010 08:00:00 -0400 The Gay Gettysburg Address -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=ZDAzMGU4NWFhNDZiZmZmMDhkM2UyMWQ1MDgwZGU5NjQ= In <a href="http://www.newsweek.com/id/229957">Newsweek</a>, Theodore Olson makes "The Conservative Case for Gay Marriage." The adjective is employed strictly because of the author's history as a conservative, because there's nothing the least bit "conservative" about the case Olson makes. In truth, he hardly does any better than <a href="http://bench.nationalreview.com/post/?q=MmI3YWVkYWQwZTUyNTVkNjZlMDEwNzBjMmExYTdiNjE=">his colleague David Boies</a> did in the <a href="http://online.wsj.com/article/SB124804515860263587.html">Wall Street Journal</a> last July. Olson's argument comes down to this: 1. The history of America is the progress of ever-increasing equality. Gays are next. Marriage is what they want to be equal. Therefore we should give it to them. Why, even Lincoln would say so--or so goes Olson's reading of the Gettysburg Address, of all things. Spot the conservatism here? Me neither. 2. Olson hasn't heard a decent argument yet for "denying" same-sex couples the "fundamental right" to marry--not "tradition," not "procreation," not "harm" to the actual institution of marriage. He should get out more. The arguments have appeared in plenty of places, including NRO. 3. People are "born" homosexual in just the way they are born members of racial and ethnic groups, or are born left-handed. This is deeply controversial, not at all established by "science" as Olson and Boies claim--and perfectly irrelevant to the constitutional case now percolating. For even if all that Olson asserts is true, it would not follow that the institution of marriage should be torn down and remade in a new image. 4. The cleverest gambit in Olson's article is the repeated insinuation that the defenders of marriage are the ones who have to prove something. It is an old story how liberal activists have trashed the presumption of constitutionality. But I never thought a man who claimed to be a conservative would be inviting judges to revolutionize our constitutional law on the thinnest of sentimental appeals, while centuries of moral and legal civilization are required to prove something to a progressive in a black robe. I have little doubt that there are plenty of federal judges ready to leap on the invitation. Olson's article is evidence that they will not even be offered any recognizable legal arguments. But then, in the Kennedy School (of Justice Anthony, that is), the legal reasoning is always in short supply, and somehow never missed at all. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZDAzMGU4NWFhNDZiZmZmMDhkM2UyMWQ1MDgwZGU5NjQ= Sun, 10 Jan 2010 15:32:46 -0400 Application to Supreme Court for Stay of Judge Walker's YouTube Order -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=ZTdmMjUyYzUzNTJlYjE0MTM4NDNmMWYwMWJhYWYwN2Q= Counsel for the sponsors of Proposition 8 have now filed an application with Justice Kennedy (the circuit justice for the Ninth Circuit) requesting an immediate stay of Judge Walker’s <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">YouTube order</a>. Justice Kennedy can either decide the application on his own or refer it to the entire Court for decision. (For more on this matter, see my recent <a href="http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY=">Part 2</a> and <a href="http://bench.nationalreview.com/post/?q=M2Q0MDdlYTNkYTczM2YwZWVkNjlhMDhlZWE4ZmYzYTc=">Part 3</a> posts on “Judge Walker’s ‘Immediate Need’ for a YouTube Circus.”) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ZTdmMjUyYzUzNTJlYjE0MTM4NDNmMWYwMWJhYWYwN2Q= Sat, 09 Jan 2010 10:54:08 -0400 Re: Emergency Petition for Order Blocking Judge Walker's YouTube Order -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=N2RkOWIzMGE2ZGY5NTA1N2FmNzI4MTZlNDFhMmI4ZTI= Late Friday (and after ordering a response from plaintiffs), a Ninth Circuit panel denied the <a href="http://bench.nationalreview.com/post/?q=Yjg4NzQyMzJmMjY4MjRiMGUzMmYyMWZlNzBhNGViNTc=">emergency petition</a>. So the YouTube circus evidently remains on schedule to open next week. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=N2RkOWIzMGE2ZGY5NTA1N2FmNzI4MTZlNDFhMmI4ZTI= Sat, 09 Jan 2010 08:47:53 -0400 This Day in Liberal Judicial Activism-January 9 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NGVlOTMxOWY3NGM0YWVhYTZlM2IzZmMzY2UxOTI3ZGE= 1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion). Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ[] in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague. This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute. JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.” <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGVlOTMxOWY3NGM0YWVhYTZlM2IzZmMzY2UxOTI3ZGE= Sat, 09 Jan 2010 08:00:00 -0400 Emergency Petition for Order Blocking Judge Walker's YouTube Order -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=Yjg4NzQyMzJmMjY4MjRiMGUzMmYyMWZlNzBhNGViNTc= Counsel for the sponsors of Proposition 8 have filed an emergency petition (available <a href="https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&uid=fca1869de2d100cb&dls_id=009121649587">here</a>, I think, to PACER subscribers) asking the Ninth Circuit to block Judge Walker’s <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">YouTube order</a> before trial starts on Monday. (They’ve also filed a motion with Judge Walker asking him to suspend his order until the emergency petition is resolved.) The grounds for the petition include the arguments that I outlined in my <a href="http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY=">Part 2</a> and <a href="http://bench.nationalreview.com/post/?q=M2Q0MDdlYTNkYTczM2YwZWVkNjlhMDhlZWE4ZmYzYTc=">Part 3</a> posts yesterday in my series on “Judge Walker’s ‘Immediate Need’ for a YouTube Circus.” They also include a strong argument that the Ninth Circuit’s announced pilot program failed to comply with statutory provisions. Judge Walker’s YouTube order was conditioned on his receiving Ninth Circuit chief judge Alex Kozinski’s administrative approval. It’s interesting that there’s apparently no public record yet that Kozinski has given his approval. One might hope that Kozinski now recognizes the folly of Walker’s order. In any event, given the late hour, counsel for the Proposition 8 sponsors has understandably seen it necessary to file the emergency petition now. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=Yjg4NzQyMzJmMjY4MjRiMGUzMmYyMWZlNzBhNGViNTc= Fri, 08 Jan 2010 16:03:40 -0400 Judge Walker's "Immediate Need" for a YouTube Circus-Part 3 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=M2Q0MDdlYTNkYTczM2YwZWVkNjlhMDhlZWE4ZmYzYTc= In addition to its illegality (see <a href="http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY=">Part 2</a>), Judge Walker’s televising order threatens unfair and irreparable—and wildly asymmetric—prejudice to the parties and witnesses supporting Proposition 8. For that reason, his order should be vacated before trial begins next Monday.* From the paramount perspective of ensuring fair treatment of litigants, it is difficult to imagine a worse civil case to televise than the Proposition 8 case. As counsel for the Proposition 8 sponsors spelled out in their letters opposing televised proceedings, the fair-trial concerns that animate the longstanding opposition of the Judicial Conference of the United States to televised proceedings in federal district court apply with special force in this case. Given all the <a href="http://www.heritage.org/Research/Family/bg2328.cfm">harassment</a> of Proposition 8 supporters that has already occurred, “it is not surprising,” as counsel’s December 28 letter puts it, that “potential witnesses have already expressed to [counsel] their great distress at the prospect of having their testimony televised” and that “some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.” As I discuss in point 2 of my <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">Part 1</a> post, Walker’s YouTube order ensures that the potential for abuse and harassment of witnesses and other trial participants is thousands, if not millions, of times greater than an ordinary unrecorded trial would entail. Further, that potential is far more likely to be anticipated by those individuals supporting Proposition 8 than by plaintiffs and their witnesses. This is so not only because of the recent ugly episodes that followed adoption of Proposition 8. It is also because plaintiffs’ declared trial strategy (see point 3 of Part 1) is to show that the sponsors of Proposition 8 who testify as witnesses are contemptible bigots—and that strategy will have the predictable consequence of inciting harassment and abuse of these witnesses and their counsel. By contrast, the attorneys defending Proposition 8 have no litigation interest in showing that particular opponents of Proposition 8 are, say, really interested in destroying marriage altogether, or are anti-religious bigots, or are “irrational.” Their task, rather, is merely to show that Proposition 8 is rationally related to, or otherwise sufficiently advances, legitimate governmental interests. I am not contending here that supporters of Proposition 8 are more genteel than their opponents. I am merely making the elementary point that the posture and related trial strategies of the two sides virtually guarantee that televising the proceedings will have a dramatically asymmetric effect on the abuse and harassment that witnesses and other trial participants anticipate and experience. The possibility that Judge Walker might authorize that a witness’s face be blacked out on the streamed video does little to reduce the prospect of intimidation and harassment. For starters, some witnesses may simply refuse to testify if the trial is ordered televised. In addition, in a YouTube world, blacking out may operate to shine a spotlight on any witness who prefers not to testify on camera—and may trigger increased abuse. There is no public interest in televising the trial that could remotely offset these fair-trial concerns. At yesterday’s hearing, Judge Walker contended that the case could provide an important “civics lesson.” Set aside the fact that Walker plainly isn’t interested in trying to provide a neutral civics lesson. The simple fact that Walker somehow has forgotten is that it’s not the role of the courts to set out to provide civics lessons. The role of the courts is to decide cases fairly and according to the law. Moreover, our system of representative democracy has its (admittedly imperfect) way of providing civics lessons. They’re called election campaigns. They took place in California in 2000 and again in 2008 on the topic of marriage. And the losing side, having failed twice to convince a majority of Californians not to protect traditional marriage, is now intent on having an electorate of one judge override the democratic processes. * Even if Walker’s order did not violate Local Rule 77-3, it would nonetheless be a gross abuse of discretion for the reasons discussed in this post, and should be vacated for those same reasons. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=M2Q0MDdlYTNkYTczM2YwZWVkNjlhMDhlZWE4ZmYzYTc= Thu, 07 Jan 2010 16:23:31 -0400 Judge Walker's "Immediate Need" for a YouTube Circus-Part 2 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY= Judge Walker’s televising order (see <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">Part 1</a>) in the Proposition 8 case is illegal for the simple reason that it violates the version of his court’s Local Rule 77-3 that is lawfully in effect. Consistent with the longstanding policy of the Judicial Conference of the United States, that rule flatly prohibits “the taking of photographs, public broadcasting or televising, or recording for these purposes in the courtroom or its environs, in connection with any judicial proceeding.” Walker has made several stabs at amending the rule, but each of his efforts has been unsuccessful. In particular, his current claim to have lawfully amended the rule under the “immediate need” provision of 28 U.S.C. § 2071(e) is ludicrous: there was manifestly no need to implement immediately the Ninth Circuit’s recently announced pilot program for experimental use of cameras in district courts. Let’s review Walker’s successive (but not successful) efforts to revise Local Rule 77-3—in each case, purporting to create an exception to the televising ban when authorized by a judge “for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit”: 1. According to a December 23 court notice that has disappeared into a black hole, Walker purported to amend Local Rule 77-3 on December 22. He never provided the prior public notice and opportunity for comment that is ordinarily required under 28 U.S.C. § 2071(b) for amendments to rules. Nor did he seek to avail himself of the exception under section 2071(e) for instances in which “the prescribing court determines that there is an immediate need for a rule.” 2. Having learned from letters from counsel about his noncompliance with section 2071, Walker clearly conceded that his December 22 purported amendment was unlawful when he issued his <a href="http://article.nationalreview.com/?q=MjcxNjc5MWZhOWVlZGQzZDUxZDlmMmM3ZTdhOGNiM2E=&w=MA==">New Year’s Eve surprise</a>, entitled “Notice Concerning Proposed Revision of Civil Local Rule 77-3.” That notice sought to achieve nominal compliance with section 2071(b) by setting a ridiculously short comment period—ending on January 8, 2010, a mere five business days from publication of the notice and, not incidentally, the Friday before the January 11 start of trial. His notice could hardly have been better calculated to evade section 2071’s purpose of promoting public comment. 3. Perhaps realizing that his New Year’s Eve surprise wouldn’t enable him to carry through on his announced plan to televise the <a href="http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY=">January 6 hearing</a> (nor to use that hearing to issue an order requiring televising of the Proposition 8 trial), Walker then caused a new <a href="http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d004888256d4e007bce29/1922d32e34847a5588257695007f5f75?OpenDocument">notice</a> to be issued, either on January 4 or January 5. (The notice, which has the same URL that the New Year’s Eve notice had, states that it was posted on January 4, but I haven’t seen any clear evidence that it was posted earlier than January 5.) Entitled “Notice Concerning Revision of Civil Local Rule 77-3,” that notice claims that the court has amended the local rule “effective December 22, 2009.” Beyond this trick of time travel, the notice also claims that the amendment “was adopted pursuant to the ‘immediate need’ provision” of section 2071(e). It provides no statement of what the supposed “immediate need” is. The notion that there was an “immediate need” to revise Local Rule 77-3 to permit implementation of the Ninth Circuit’s pilot program is absurd. The Ninth Circuit announced its pilot program on December 17, 2009. Nothing in its <a href="http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press%20Relase.pdf">announcement</a> remotely signals any urgent need that it be implemented immediately, nor is such a suggestion even plausible. Indeed, the announcement itself states that it was implementing a resolution passed in 2007. If the Ninth Circuit itself took two years to implement that resolution, it clearly was in no rush. And, so far as I’m aware, none of the other fourteen or so district courts in the Ninth Circuit has seen any reason to rush to revise its equivalent of Local Rule 77-3. Further, the Ninth Circuit has yet to issue any resolution, order, or other publicly available information setting forth the policies and procedures that will govern the pilot program. The only “immediate need” that Walker perceived was the need to find some way to orchestrate the televised show trial that he has been intent on conducting. He has violated section 2071, not satisfied it, in the process, and the pre-existing version of Local Rule 77-3, barring all televised proceedings, necessarily remains the version that is lawfully in effect. His order to televise the Proposition 8 trial is therefore illegal. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=MzFiODY5MGY0NDY2OTZiNmE4YjlkNDU3YjVmMThjMGY= Thu, 07 Jan 2010 15:52:33 -0400 Capitol Hill Objections to Judge Walker's Shenanigans -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NDJkYmZkYjg3MTk3MzJkZDYyYmYzM2Y5MjlkNDQxNzY= Yesterday, Rep. Lamar Smith, ranking member of the House Judiciary Committee, sent a letter to James C. Duff, conference secretary of the Judicial Conference of the United States, objecting to Judge Walker’s plans to televise the Proposition 8 trial. Rep. Smith complains of Walker’s overly hasty effort to “deviate[] from longstanding [Judicial] Conference and congressional policy prohibiting televised trial proceedings,” and he “urge[s] the Judicial Conference to do everything in its power” to prevent the planned televising. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NDJkYmZkYjg3MTk3MzJkZDYyYmYzM2Y5MjlkNDQxNzY= Thu, 07 Jan 2010 14:21:41 -0400 Commit to States' Rights -- By: Ryan Lirette webmaster@nationalreview.com (Ryan Lirette) http://bench.nationalreview.com/post/?q=NzZiMmUzNDgzNDQyNTViMTJlMmQwYzc2NDRmNjgyYmU= Not many tea-party protesters have heard of Comstock v. United States. But the case, which the Supreme Court will hear on January 12, concerns the very limits on government power that they and others are so intent on restoring. At issue is the constitutionality of a 2006 federal law that allows the government to civilly commit a prisoner after the conclusion of his sentence because he suffers from a mental illness that makes him sexually dangerous. Now, certainly, those who pose a danger to society because of their sexual proclivities should be committed. The real question, however, is whether the federal government should be running roughshod over the Constitution to civilly commit these individuals when states can adequately handle the problem. In Comstock, a federal court of appeals in Richmond ruled that Congress had no constitutional authority to enact the law. The Supreme Court should uphold this ruling, keeping Congress within its constitutional bounds. The Constitution establishes that the federal government is one of limited powers. In other words, Congress may not search every corner of our country looking for problems to vanquish. Instead, Congress must be able to justify each law it passes with a specific constitutional authorization. Unfortunately, Congress has no such justification for this civil-commitment scheme. One argument supporting the civil-commitment law relies on the federal government’s power to regulate interstate commerce. Although most people would not consider the confinement of a sexually dangerous person to be a regulation of commerce, the Supreme Court has allowed Congress to regulate any activity that it believes could substantially affect interstate commerce. For most of the 20th century, contrary to constitutional design, this sleight of hand provided Congress nearly unlimited power. Recently, however, the Supreme Court has limited the power to regulate in this broad manner. In fact, a decade ago, the Court ruled that Congress could not make local, non-economic sexual violence the subject of interstate-commerce regulation. That precedent should knock out the commerce-power argument. The government offers another potential justification. It argues that the law is merely an extension of its power to confine federal prisoners in the first place. The problem with this argument is that the commitment of a prisoner is not part of the imprisonment power once he has finished his sentence. The Supreme Court has stated that the federal government’s power over an individual defendant must end at some point. If that point is not the conclusion of a prisoner’s legal sentence, then when is it? The very reason that the framers made the federal government’s power finite was to protect our fundamental liberties. Permitting Congress endless authority over any person entering its regulatory crosshairs is inconsistent with this structural protection. The appeals court rightly held that this federal law impinged on the states’ regulatory sphere. Crime, punishment, and the civil confinement of the mentally ill are traditional areas of state regulation. It is certainly good for reelection prospects when Congressmen can go back home and announce that they sponsored a bill that “gets tough on crime.” And budget-strapped states are often eager to pass their responsibilities on to a Congress with seemingly unlimited spending abilities. But federal intervention adds a layer of additional regulation, requires more federal resources, and threatens individual liberties. The federal government was created to accomplish legislative tasks that could not be handled by the states alone. At the height of federal power, this idea came to be seen as quaint or anachronistic. But we have recently experienced a severe recession, and the federal debt continues to spiral out of control. Given how poorly federal policy has performed in many areas, one wonders whether things might be better if Congress had less on its regulatory plate. The Court should take this opportunity to rebuke Congress’s gluttony by preventing it from meddling in areas that lawfully belong to the states. -- Ryan Lirette, a lawyer, is a research associate at the American Enterprise Institute. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NzZiMmUzNDgzNDQyNTViMTJlMmQwYzc2NDRmNjgyYmU= Thu, 07 Jan 2010 14:03:22 -0400 Judge Walker's "Immediate Need" for a YouTube Circus-Part 1 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY= In a series of three or so posts today, I’m going to explain why Judge Walker’s order requiring audio-video recording and transmission (I’ll sometimes use the admittedly inexact shorthand “televising”) of the trial proceedings in the Proposition 8 case should be overturned forthwith. In this post, I’ll review yesterday’s sham hearing and discuss just what Walker has ordered. In the next post, I’ll show that his order is unlawful. And then I’ll discuss why his order threatens unfair and irreparable (and wildly asymmetric) prejudice to Proposition 8 supporters. A few key points about yesterday’s hearing: 1. In a microcosm of what the trial will be, yesterday’s hearing was a sham on the issue of televising. Even before the hearing started, Walker had already had the court’s clerk issue a <a href="https://ecf.cand.uscourts.gov/cand/09cv2292/">statement</a> declaring (evidently falsely, as it turns out) that the Ninth Circuit had already granted Walker’s request “to pilot [the Ninth Circuit’s] public access program by providing audio & video of the trial” of the case. Walker had the hearing begin with the court’s IT manager explaining how the televising would work. And Walker revealed during the course of the hearing that the fix was in on this issue long ago—that the desire to televise the Proposition 8 case drove the recommendation by a Ninth Circuit committee to authorize the pilot program: “this case was very much in mind at that time because it had come to prominence then and was thought to be an ideal candidate for consideration.” How would Walker know this? He was (surprise!) one of the three members appointed by Ninth Circuit chief judge Alex Kozinski to serve on the committee. Despite the fact that this issue had been predetermined, Walker went through the motions of asking some seemingly probing questions of plaintiffs’ counsel. 2. Walker’s televising order has two distinct aspects: First, the entire proceedings will be transmitted live to various courthouses throughout the Ninth Circuit and perhaps to federal (and state?) courthouses throughout the country. (Walker stated that the Northern District of Illinios has already submitted a request for streaming video, and he indicated that he was receptive to requests from “other courts” as well.) Second, the entire proceedings will be transmitted “on a delayed basis to YouTube for purposes of posting on the Internet so the proceedings can be made generally available.” Posting on YouTube would, of course, in turn make it easy for anyone to splice and dice the video, post highlights, overlay the video with text or special effects, and make alterations. Posting on YouTube, in other words, creates the possibility that any particular excerpt of any witness’s testimony or any counsel’s statement could “go viral.” Together, these aspects of Walker’s order ensure that the potential for abuse and harassment of witnesses and other trial participants is thousands, if not millions, of times greater than an ordinary unrecorded trial would entail. 3. An apparent purpose—and surely the obvious effect—of the show trial that Walker is staging is to make Proposition 8’s sponsors pay as high a price as possible for their exercise of their First Amendment rights. The meaning and operation of Proposition 8 are clear. Millions of Californians voted for Proposition 8, and the votes of Proposition 8’s sponsors were immaterial to the outcome. What possible relevance is there to the particular motivations, the particular understandings of and attitudes of Proposition 8’s sponsors? Either there is a federal constitutional right to same-sex marriage, or there isn’t. How can that question possibly turn on factual inquiry into the motivations of Proposition 8’s sponsors? (I intend to explore this issue more fully.) At trial, plaintiffs’ counsel aim (as they state in their trial memorandum) to show that Proposition 8 is “an irrational, indefensible, and unconstitutional measure” and that it was “motivated by moral disapproval and irrational views concerning gay and lesbian individuals.” Plaintiffs’ counsel will be trying to show that the sponsors of Proposition 8 who testify as witnesses are contemptible bigots—and the predictable consequence of their effort will be to incite harassment and abuse of these witnesses and their counsel. 4. Dismissing the vast multiplier effect that the televising order will have, Walker and plaintiffs’ counsel, Theodore Boutrous, indicated their belief that the sponsors of Proposition 8 deserve whatever additional harassment and abuse come their way. As Boutrous put it, the sponsors “thrust themselves into this issue.” He called it “ironic” that people who have been “stripping away” the right to same-sex marriage could complain about being subjected to harassment and intimidation. (His December 29 letter similarly states that “Proponents willingly thrust themselves into the public eye.”) Walker likewise stated that the Proposition 8 sponsors had, by virtue of their political campaign, “assumed a public face” that evidently subjects them to whatever ensues. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=N2RjYzE0MTQxN2ZhODFlYzYyNmYzY2Y4MmQyOGExMWY= Thu, 07 Jan 2010 10:58:39 -0400 This Day in Liberal Judicial Activism-January 7 -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=NGU5YTJiNjg5YTRjZmI0NWJmZmZkOTVjOGU2Mjg0MTc= 2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito. (See <a href="http://www.eppc.org/publications/pubID.2509/pub_detail.asp">here</a> for more.) <hr width=100% size=2> http://bench.nationalreview.com/post/?q=NGU5YTJiNjg5YTRjZmI0NWJmZmZkOTVjOGU2Mjg0MTc= Thu, 07 Jan 2010 08:00:00 -0400 YouTube Justice -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=N2RlODQ3NzA4M2IzNWJhNjY1MDg0YWZlYTA5ZTQ5Y2U= As he clearly signaled, Judge Vaughn Walker is <a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/06/BA121BEGI8.DTL">carrying through</a> on his outrageous plan to intimidate witnesses supporting Proposition 8. In an unprecedented action, Walker has authorized (subject to Ninth Circuit approval, which his eager accomplice, chief judge Alex Kozinski, will surely soon provide) televised recordings of the trial proceedings, which will be made available—for viewing and for further dissemination—on YouTube. I doubt that Walker could design a better way to promote harassment of trial participants supporting Proposition 8 and to turn the trial into a circus. His “immediate need” rationale for modifying the rule barring televised coverage is simply ludicrous. As I hope to explain more fully soon, this decision should not be permitted to go into effect. According to the article linked above, Walker stated at today’s hearing, “I’ve always thought that if the public could see how the judicial process works, they would take a somewhat different view of it.” We’re seeing it now, Judge, and it’s having a very different effect than you evidently imagine. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=N2RlODQ3NzA4M2IzNWJhNjY1MDg0YWZlYTA5ZTQ5Y2U= Wed, 06 Jan 2010 20:51:06 -0400 You Lie! -- By: Matthew J. Franck webmaster@nationalreview.com (Matthew J. Franck) http://bench.nationalreview.com/post/?q=ODAxZGEyODAyNmNjMTg1ZDc5MTAzZThkYjY3YTRjNTQ= Channeling Rep. Joe Wilson, that's what I barked upon reading a <a href="http://www.nytimes.com/2010/01/04/opinion/04mon1.html">New York Times editorial </a>on Monday (just before embarking on some travel that prevented my writing this until now). Lamenting the Supreme Court's denial of certiorari in a case from the Court of Appeals for the D.C. Circuit, the Times' editors ranted that the case was all about torture, torture, torture, and claimed that, in its ruling last April: <blockquote> The [lower] court said former Secretary of Defense Donald Rumsfeld and the senior military officers charged in the complaint could not be held responsible for violating the plaintiffs’ rights because at the time of their detention, between 2002 and 2004, it was not “clearly established” that torture was illegal. </blockquote> I presume that the editorial board of the Times employs one or two people who are competent to read and understand a judicial opinion. Thus it is unforgivable for the paper to claim, as it does here, that the D.C. Circuit ruled in <a href="http://pacer.cadc.uscourts.gov/docs/common/opinions/200904/06-5209-1177375.pdf">Rasul v. Rumsfeld</a> last spring that it was not "clearly established," at the time of the events complained of in Rasul's case, "that torture was illegal." What was not then "clearly established," the court actually said, was whether enemy combatants such as Rasul--apprehended overseas in wartime and held outside the United States, at Guantanamo--had any claims to constitutional rights that could be pressed in a federal court. The case had absolutely nothing to do with the question whether "torture was illegal," and the editors of the Times have no excuse not to know this perfectly well. I expect they do know it, and prefer to retail a falsehood. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=ODAxZGEyODAyNmNjMTg1ZDc5MTAzZThkYjY3YTRjNTQ= Wed, 06 Jan 2010 12:56:25 -0400 More on Judge Walker's Televising -- By: Ed Whelan webmaster@nationalreview.com (Ed Whelan) http://bench.nationalreview.com/post/?q=YzZiYWViZWI1ZDA3ZjA4YjViNDdiOGRlZGVkMjZhNzA= On the <a href="http://volokh.com/">Volokh Conspiracy</a>, former federal district judge Paul Cassell agrees that Judge Walker’s actions are “bizarre”: I agree with Whelan that it seems highly unusual for a judge to authorize televised proceedings for this particular case as part of some new “pilot” project to see how televised proceedings work. Surely if there were going to be a test run of a new idea, it should be in a more run-of-the-mill case rather than this particular highly controversial one. Moreover, it does appear that public comment process has been completely short-circuited. I’ll add that several folks have contacted me to tell me how much respect they had had for Walker as a judge—and how shocked they are by his shenanigans in this case. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=YzZiYWViZWI1ZDA3ZjA4YjViNDdiOGRlZGVkMjZhNzA= Wed, 06 Jan 2010 11:43:47 -0400 Bad Ninth Circuit Decision Yesterday on Felon Voting -- By: Roger Clegg webmaster@nationalreview.com (Roger Clegg) http://bench.nationalreview.com/post/?q=OTc4NmZiZmVlYTE1ZWQ2ZmVkN2RkN2JlN2E2OWJmNmU= The Ninth Circuit <a href="http://www.ca9.uscourts.gov/datastore/opinions/2010/01/05/06-35669.pdf ">ruled</a> yesterday <a href="https://mail.nationalreview.com/owa/redir.aspx?C=4bd9e0a8fe2d4602b5eedea6089e2e27&URL=http%3a%2f%2fwww.ca9.uscourts.gov%2fdatastore%2fopinions%2f2010%2f01%2f05%2f06-35669.pdf" target="_blank"></a> that it is a violation of the Voting Rights Act for the State of Washington to disenfranchise felons, due to racial discrimination in the state’s criminal justice system. Oh, where to begin? First, the evidence of systemic discrimination is dubious. Second, even if there were such discrimination, the record is overwhelming that Congress did not intend the Voting Rights Act to apply to felon disenfranchisement. Third, even if the Voting Rights Act did apply, the state’s legitimate and strong reasons for not wanting criminals to vote would rebut any prima facie case. Those who won’t follow the law themselves can fairly be told that they will not be allowed to make the law for everyone else. We don’t let everyone vote -- not children, not noncitizens, not the mentally incompetent, and not criminals -- since there are certain minimum, objective standards of responsibility, loyalty, and trustworthiness that we require of those who would participate in the serious enterprise of self-government. The Center for Equal Opportunity <a href=" http://www.ceousa.org/content/blogcategory/64/93/">has devoted</a> part of its website to this important issue. Well, here’s hoping the Ninth Circuit will rehear the case en banc. If not, the Supreme Court will likely grant review, since yesterday’s decision is in conflict with those of other federal courts of appeals. <hr width=100% size=2> http://bench.nationalreview.com/post/?q=OTc4NmZiZmVlYTE1ZWQ2ZmVkN2RkN2JlN2E2OWJmNmU= Wed, 06 Jan 2010 09:16:16 -0400