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A Blog for and by ACS members nationwide. Links
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Thursday, June 26, 2003
David Ettinger writes via email: One thing that struck me in reading the wonderful Lawrence opinion that strikes down the Texas sodomy law is that the court relied in part on decisions from the European Court of Human Rights. (See the two excerpts below.) I'm more than 20 years out of law school and am not knowledgeable in this area, so I'm interested in learning how unusual it is for the Supreme Court to rely on foreign law in any case and, specifically, in a case involving individual rights. Can anyone help me out on this? In any event, I find the Court's reliance on foreign law heartening. It is a stark contrast to the Executive Branch's complete disdain for any non-American views. It is very positive that a least some part of the United States government cares at least to some extent what the rest of the world thinks. Here are the excerpts: "Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ ;52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization." "To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ ;56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries." I'm still buried under writing competition submissions and partner-imposed memo deadlines, and it is really killing me that I don't have the time to write about the recent SCOTUS decisions. However, I'd like to put up this quote from Scalia's dissent in Lawrence v. Texas for comment. "I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. " Monday, June 23, 2003
At 10:00 am the remaining decisions of the SCOTUS term should come down and willl be available here or here. Sunday, June 22, 2003
I have been almost as busy this weekend as I was last week, but since I promised a follow-up on the judicial selection bit, I'll just throw these two points out and hopefully get to the other questions posed to me later. 1) Adam White at the FedSoc says "Thus, declining a nominee because the nominee's politics make it unlikely that he will uphold the law as written is entirely appropriate; declining a nominee because the nominee's politics make it unlikely that he will rule according to the law and contrary to the Senator's politics is not appropriate." I might agree, except that the question begged here, the undefined variable, is again what is the "law as written." Isn't one's belief of what is the "law as written" part of one's politics? And are we not just sneaking in the back door the Platonic forms bit we just closed the front door on? Some Senators have a cramped and restrictive view of what the law should mean (or what the government should get involved in) and others have a more expansive (sometimes activist) view. Both views have some historical and textual justifications. But to say that one Senator's questions are appropriate and the other's are not merely because the former's questions presume a view of the law that you agree with seems a bit disingenuous. 2) I don't really see the point of counting the number of times a word appears on a webpage (especially a comparatively new one). I'm just not sure what it proves. If I said that the Constitution is generally considered part of the "the law," how many hits does that serve up? 3) I need to address the Federalist point and the "intrinsic significance" of the law question later. Summer is no vacation for a law student. Friday, June 20, 2003
The following comes from a reader. (My follow-up/wrap-up on the judicial selection debate will come this weekend. I got slammed at work and I've had no time. PS. Just to put an end to the suspicious scare quotes ("ACS John" and "John" at ACS), my last name is Knapp. Middle initial C. No relation to Whitman, Charles, the Commission or the shoes. I'm a law student and currently a summer associate.) Recently, some conservatives have become very upset because, even though almost all of President Bush's judicial nominees have been confirmed, a few have not yet been confirmed. I find this somewhat puzzling. Getting almost all of what you want (or ask for) is not that common in most people's lives. And when someone gets almost all of what they want/ask for (say, more than 95%), it is usually cause for joy, happiness, etc. I am writing to suggest a name for this curious condition: "Duchy of Grand Fenwick syndrome." The name is inspired by a line from the book "The Mouse That Roared." In that book, a small nation invades the U.S. in the hope that losing the war will help its economy (the observant reader will note that the book is NOT about the U.S. invading a small country in the hope that winning the war will, inter alia, help its economy). In describing the duchy's politics, the author notes: "[I]t was the belief of the duchy that no nation can be governed well unless there is a majority which can impose its will upon a minority." This seems to offer a good explanation for the conservatives' current mental state--they are upset that the majority is not able, in some small way, to impose its will upon the minority. I would also like to suggest the following definition for "Duchy of Grand Fenwick syndrome": "A mental state caused when a person who thinks that he or she is entitled to get everything that he or she wants or asks for, but receives less than everything. This state is observed even in people who get more than 95% of what they want. Symptoms include general irritability, anxiety, depression, selective amnesia, a tendency to lash out at other people, as well as constitutional-violation hallucinations." Wednesday, June 18, 2003
OK, Now I'm really confused... Adam White over at Ex Parte has another post on judicial nominations. In that post (which you should read in its entirety), is this passage: Ideology matters. That's a sound truism. But does that justify Senator Schumer's inquisition into the political beliefs of Bill Pryor? If Schumer votes against Pryor (in committee or in a full Senate vote), is that vote justified by the Constitutional structure set forth by the Founders and under which the rule of law is to operate? Only if Schumer's argument that Pryor's politics prevent Pryor from judging according to the dictates of the law turns out to be, in fact, correct. I'm not sure that's correct. Is Adam (as a fellow law student, I'm calling him Adam -- he can call me Toby :) ) arguing that a Senator is only right in voting against a nominee if the reasons for their vote turn out to be correct? If that's the argument, I hardly understand how the Constitutional structure dictates such an extreme result. There's no way to know whether one's beliefs will turn out to be true. Schumer might vote against Pryor simply because Bush nominated him. That is, by the way, legal, but sad if true. On the other hand, if Schumer has a good faith belief that Pryor would not "judg[e] according to the dictates of the law," then who cares if it turns out to be true? And of course, under the "unless it turns out to be true" scheme, there really is *no* way to vote against a nominee based on, well, most anything (except improper credentials). Imagine, Adam, that when John Kerry nominates his first Circuit judge, that nominee says, "If the Supreme Court overturns Roe and Casey, I would not follow the new precedent." Are you saying that Senator White cannot vote "no," simply because it's possible that should this very situation arise, the nominee-now-judge would decide to follow the precedent, thus going back on his word? That seems absurd. To be sure, I'm pulling a bit of a bait and switch here -- Adam was talking about politics, not plain statements about judging. I recognize the difference, but I find it inapplicable. After all, what if Pryor had actively resisted Casey as an AG (I'm not sure how that would happen, but suspend your disbelief)? Schumer can't be SURE that Pryor's going to resist it on the bench, but that doesn't make his opposition constitutionally problematic. I should get back to work, so I'll sum up: I simply do not understand why Senators are not allowed to INFER things about how people would judge, based on politics. And for that matter, not just politics -- how they walk, talk, break-dance, whatever. The Constitution sets up a nifty hiring process. The President is the referral service. He dictates the set of possible hires. The Senate is the ultimate hiring body. THEY get to pull the trigger. And like any employer, they should - no, they MUST - test every potential hire for competency. If, for ANY REASON WHATSOEVER, a Senator has a good faith belief that a nominee will not follow the "dictates of the law," he has a constitutional obligation to vote "no," IMO. Whether that good faith belief is based on political activities or which hand they throw a baseball with, so long as it's a rational, good-faith belief, that's fine by me. NY elected Schumer; they have chosen him to make that determination on their behalf. Let me commend your excellent posts, TS and John, and offer a personal observation. As a practicing attorney who has argued over two dozen cases in the federal courts of appeals, it's utter sophistic frippery to assert -- as the Federalist Society bloggers seem to -- that judges' personal predilections and party affiliations don't affect their judging. Judges are people, and they bring their pre-investiture concerns and values to the bench with them. As a result, with some rare exceptions, I have never argued a controversial case (the easy ones don't serve as good predictors because everyone agrees on their outcome) where judges' party affiliations didn't correctly predict their votes. Ideology matters. And it's blindness (and ideology itself) to believe otherwise. A quick note on Judges and what exactly is the province of the judiciary The following is a rather obvious point, but one that I think (hope) is worth making: The Federalist Society is "founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." That sounds wonderful. And I salute that idea. Now, why the law, according to the FedSoc folks, almost always "is" what they want it to be is a topic for another day. I'm interested in something more basic. The problem with this mantra is that there are myriad situations, especially at the Circuit and Supreme level in the federal system, where judges have to make a choice about what the law is. What does a statute mean? What if the facial language is confusing? And so on. Heck, in your first 2 weeks of civil procedure you encounter 20 cases where the courts are forced to fill in the gaps in the FRCP. And when the law is ambiguous but requires resolution, we ask that judges do there best to determine what it should be, since there is no clear answer about what it "is." And this is not to mention judges like Richard Posner, who (IMO) come dangerously close to ruling based on what the law should be, rather than what it is (even if his version makes more sense). But the idea that Miguel Estrada is not going to have plenty of chances to rule based on what he thinks the law should be (as opposed to what it is) doesn't really fly with me. The way he is going to decide what the law should be will be tied to his personal, political, and ideological preferences. So it's not a matter of whether judges can put these preferences aside, it's a matter of recognizing that there will be many situations where they won't really need to. They matter, they're fair game, they should be mandatory discussion points in SJC hearings. Tuesday, June 17, 2003
Ideology, Fallacy and the Judiciary The Fed Soc has responded to our recent posts about judicial selection. Before Mr. White's argument climbs to its sophistic apex and delivers its coup de grace - the "your name is funny" barb - a suggestion is made that we should take as a given that judges are actually ruled solely by "the plain meaning of the Constitution or stare decisis," and that all political conviction ends as one crosses the bench. (The plain meaning of the Constitution is apparently an uncontroversial issue now, fretted about only by hairsplitters.) In response, another Fed Soc'er, Mr. Bramwell, takes guarded exception and confesses that "[t]he idea that judges commune with some Platonic form of justice while the rest of us cavedwellers are forever blinded by our partisan interests strikes me (sic) is utterly repugnant to my majoritarian instincts." I share the skepticism about Platonic forms of justice or anything else (like truth with a capital T, as Rorty argues), but is the idea here also that the fallibility of judges evidences (or is the cause of) their inability to shake loose those pesky political and ideological convictions? If so, then we would be close to agreement- the point of my first post was simply that we should stop pursing the fallacy of ideologically pure judges and make evident what is really motivating the Senate hearings. Mr. Bramwell also cites with interest Cass Sunstein's excellent New York Times article which essentially just makes my point again- political ideology does matter in judicial nominations. The proof is in the pudding- ideological affiliation is a reliable predictor of judicial decision-making. But then Mr. White recants: he wasn't "saying that [judges] don't have interests and preferences. [He's] just saying that the Liberal inquisitions of nominees... have nothing to do with inquiring into the matter of whether or not judges will uphold the Constitution, obey stare decisis, and generally act according to what the law is, not what they wish it to be." Well, surprisingly, this is pretty much a paraphrase of...the Federalist Society Motto. So the real question appears to be not whether ideology is an issue, but which ideology we are talking about- yours or mine. Ours is allowed, yours is not. What is there to debate? Well, everything. Having apparently agreed that judges do come with ideological baggage, we must then ask if such baggage is subject to inspection in the Senate. (Pardon the overworked metaphor). Apparently the Fed Soc, bastion of the founding fathers' original intent, is unfamiliar with Federalist No. 76, in which Hamilton addresses arguments for and against having a check on the Presidential power to appoint (which applies to judges as well, as stated in Federalist No. 78.) He concludes: "To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation…It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure…" The Senate's concurrence is necessary to check the "private inclinations and interests" of the President. We want to be sure judges are not appointed solely because they fall in ideological line with the President. Very well. (Though I suppose Hamilton thought too much of politicians with the "ashamed and afraid" bit.) But then Mr. White suggests, "perhaps I should have said 'should be ruled' instead of 'are ruled', when he said that I want "the American public to take as given that judges are ruled by their political preferences." But that would be a convenient misstatement of my point, which was not that judges should be ruled by their political preferences- I thought this was the one point we agreed on!? (My post: it "is inevitable, if not desirable...but it will not be curtailed by pretending"; Mr. Bramwell: the Platonic forms bit; Mr. White: he wasn't "saying that [judges] don't have interests and preferences"; Mr. Hamilton: "private inclinations and interests.") My point was that they are so ruled (unfortunately, if you like) and that we do not resolve anything by pretending they are not. What we do manage to do, and what at least Mr. White would like to continue to do, is stifle debate by baldly asserting the illegitimacy of one side because it fails to conform to the now (hopefully) discredited fallacy of ideological purity to which the other side makes absurd pretensions. And yet, with that to rest, don't we still have the most basic question of all: what does a particular judge, shot through as he is with personal, political and ideological preferences, think the Constitution means? I have no doubt that the Fed Soc has wrapped up what they think a judge should think. And I have no doubt that many disagree with them. I should only hope that both sides continue in open and honest debate about it instead of hiding behind such fallacies. Thursday, June 12, 2003
A legal after-school special: This American Lawyer article looks at the oh-so-tender relationship between Justices O'Connor and Ginsburg. Wednesday, June 11, 2003
Fred makes an excellent point, one which I tried to make to Roger Pilon of the Cato Institute at an ACS-FedSoc debate at Brooklyn Law School on this issue. As I see it, Schumer's proposals, for example, start from the premise that the judicial nomination process is inherently political: Senators are going to vote on ideological and political grounds. This is inevitable, if not desirable on separation of powers grounds. However, it will not be curtailed (in fact, it seems to be made worse) by pretending, that is, by hiding the ideological and political motives driving the process. Instead, says Schumer, make the ideological and political motives explicit; make Senators accountable to their constituents for their decisions. For a hypothetical, let a Michigan Senator vote for a nominee that has a miserable labor record simply because he fits other ideological requirements, and let his constituents see that is what he is doing. Pilon's response was something like "do you want a rule of law or rule of men?" I didn't get a follow up, but if I did, it would have been something like "a rule of law, in which the people know what their representatives think the rule of law should be." As Fred says, lets have an honest debate about exactly that. Tuesday, June 10, 2003
Here's an interesting article about the likely fight awaiting the next Supreme Court nominee, and how liberal and conservative groups are gearing up for the battle. [Registration may be required.] It's a shame that the Bork confirmation battle deterred Republicans from nominating to the Supreme Court honest conservatives with a record of accomplishment. Bork, for all his faults, was an extremely talented jurist and scholar, and, on his qualifications alone, would have made an excellent Justice. But, Democrats fought the right fight over Bork: Was his philosophy acceptable and did it reflect the picture that mainstream Americans wanted to see in their judiciary? Since Bork, however, Republicans have refused to have the right fight; instead, they try their luck with relatively paper trail-free nominees, sometimes winning (Thomas), sometimes losing (Souter), and sometimes pulling a draw (Kennedy). At least Clinton selected jurists for the Court who, like Bork, were not only distinguished, but also straightforward about their philosophical underpinnings. (Like Bork, Justice Ginsburg answered multiple questions about her take on Roe v. Wade and other issues she had published and spoken about.) Bush would do well, if a vacancy opens up, to have the right fight, rather than a silly fight like the Estrada battle, seemingly over "withheld memoranda" and "Democratic bigotry" against Hispanics, but actually over judicial philosophy. I say to the President: Nominate a real conservative, and let's have an honest battle about the face of the judiciary. [Posted simultaneously to the ACS blog and Bureaucrat by Day.] "I think there's enough there to show [the Alien Tort Claims Act] can make a lot of mischief in the wrong hands," said Paul Kamenar, senior executive counsel of the Washington Legal Foundation. "It represents a larger problem with activist courts trying to take a statute from 1789 never intended to be used against multinational corporations," he said. Article here. Tort liability at common law was also "clearly not intended to be used against" automobile manufacturers, and yet we've found it prudent to not limit tort actions to apothecaries making Belladonna (can you name the case?). The issue should be simply what is the "law of nations," not who violated it. Monday, June 09, 2003
If you subscribe to The New Republic, check out Jeffrey Rosen's article on Rehnquist's "new-found feminism." If you don't, you should. Howard Bashman gives us this story on Orrin Hatch, who apparently no longer likes filibusters (he once did). That's totally shocking. And let me guess -- the Democrats love it now but wanted to ditch it then. And in 10 years, we'll cycle back again. The best part about the "controversy" over filibustering federal judge confirmation hearings is that if someone slices off my thumb and my pinky, I can still count Fortas, Estrada, and Owen on one hand.* So, keep the filibuster. It's certainly not harming the efficiency of our judiciary, and it's a tool that both parties, in the end, should have in their pockets. It is as deeply rooted in our nation's history as C-Span or Freedom Fries. [FN *] - I recognize that they may need to re-attach my fingers to count Messrs. Pickering and Pryor, should it come to that. Friday, June 06, 2003
Apparently the charges against Martha Stewart include some sort of Fraud on the Market. The theory is that her false declation of innocence fraudulently inflated the stock price of her company. A summary is here (better one here, but registration is required). I have little interest in defending Ms. Stewart, but wouldn't this charge apply to any personal scandal/cover-up involving a business leader? Thursday, June 05, 2003
WMDeception If you are not already following how the Administration appears to have spun/trumped-up/skewed/fabricated evidence of WMDs, check out TNR on Doug Feith's Self-Destruction, and the always-invaluable Josh Marshall here, here and here. Most entertaining is the Administration's hope that we forget that we were told this war was necessary to protect the US against an immanent and growing threat, and that we instead let ourselves get swept up in the 'we liberated a suffering people' rhetoric. This was not a humanitarian intervention, and it may be interesting to wonder how it would have played out (at home and at the UN) if it had been billed as one, but all the spin in the world won't retroactively make it one. Your Money or Your Life Alan Morrison, defendant's counsel in Ewing v. California, wonders why the high court seems to give more constitutional protections to a party's money than to his freedom. Wednesday, June 04, 2003
A good review of some of the important cases in front of the DC Circuit. ACS'ers can hope Judge Tatel is on the panel in not a few. A brief response to the question proposed: I would suggest that while there are many and clear differences, they do seem to suffer from a similarly ambiguous normative status. Much has been made of the fact that Marx argued fervently for a revolution that, according to his own theory, should have been inevitable. Of course it never came, but the blind confidence that it would seems to have caused him to not provide the conditions for it; it was just assumed it would happen. Law and Economics strikes me as having a similar paradox at its heart- it advocates interpreting and making laws for a population of purely rational actors which does not exist and in which I, at least, would not want to live). Both theories would "work" in societies that they cannot themselves provide. Marxism was hopefully History would come to its aid; its not clear where L&E rests its hope. A reader proposes the following for discussion: Is Law & Economics the new Marxism? 1) both primarily look to economics; 2) both claim that many/almost all human interactions are due to economic laws; 3) both are associated with a particular political tendency (extreme left wing vs. right wing); 4) both have sophisticated theoretical underpinnings; 5) both criticize their opponents for their lack of theoretical sophistication and lack of understanding of economics. Please send your comments. Tuesday, June 03, 2003
Monday, June 02, 2003
As this is my first post to the ACS blog, after months of posting to my own blog, I don't know how much to strive here for seriousness as opposed to the chattiness and snarkiness that sometimes infects Ignatz. So, how to put this? How about this: this morning's opinion (pdf) in Beneficial Nat. Bank v. Anderson is appallingly poorly-reasoned. The crucial (and in my view, patently wrong) assertion of law - that what matters in a "complete preemption removability" dispute is NOT whether Congress intended to create removability, but simply whether Congress intended to preempt -- is practically buried as one conclusory clause of a footnote, without supporting argument or citation of authority. Other parts of the opinion may be meant as support for this legal assertion, but nowhere does the Court answer the compelling points made by Justice Scalia in dissent -- for instance, as to the irreconcilability of the Court's approach today with its approach in the ERISA removability case many years ago. What a sorry state we are in, when we must rely on Justices Scalia and Thomas to dissent from pro-corporate judicial activism on the Supreme Court! David E. wrote: "When did cynicism replace justice as the primary product of Supreme Court jurisprudence?" I think that the answer is that it took root when then-Justice Rehnquist wrote National League of Cities v. Usery and came to fruition with the appointment of Dub's favorite judge, Justice Scalia (although, to be fair, Scalia did dissent from the State Farm decision). -David Weimer (via email) Sunday, June 01, 2003
But Seriously Folks... Ok, enough of the shrill and sarcastic. I think one of the most problematic aspects of the state sovereign immunity (SSI) decisions is that some of them impose evidentiary constraints on Congresses that didn't realize they needed to meet those constraints. In other words, the Court is going back in time to put up a hurdle that Congress never knew it needed to clear. To me, this is a serious separation of powers problem. There is nothing in the 11th Amendment, or the 14th, that would suggest to Congress that it needed a clear statement, or a really clear statement, or a semi-clear statement, or a statement, or a lot of evidence, or some evidence, or indisputable evidence.... ok, I'll stop, you get my point. These post hoc requirements on Congress should be contrasted with other aspects of the Court's SSI jurisprudence. For example, if the Court wants to say that Congress can't abrogate SSI under its Article I powers, then so be it. This is, in the majority's mind at least, a constitutional limitation. Fine, I can handle that, even if I disagree. Congress can either abrogate under Article I or it can't. But it's far different if the Court had done with Article I what it's done with Section 5 of the 14th Amendment. For example, what if the Court said, "Aha, Congress, you can't abrogate SSI under the Commerce Clause unless you have a clear statement of the interstate nature of the commerce involved. We think that evidence of at least 16 states involved in said commerce should be the minimum evidence allowed." Now maybe the rules in the current SSI cases don't SEEM that fickle or arbitrary, but I think they are. Sure, if the ADA were passed today, Congress would be clear about abrogation. The Rehnquist v. Breyer evidentiary showdown in Garrett just bothers me, I guess. I hope it's a general principle that bothers me, and not just the result. I just have a problem with the Court setting evidentiary hurdles on prior Congresses that it knows they won't clear because those Congresses didn't write down some of what was understood at the time. Because, after all, the whole State Sovereign Immunity doctrine is premised on the idea that the Founders didn't bother to write down something they (purportedly) thought was understood. |
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