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Wednesday, March 31, 2004
"Big Brains" On Tap for ACS Meeting
When I was appointed to an ABA committee a few years ago, then-President Oklahoman Bill Paul told us he felt flattered to be in the presence of so many "big brains." I wasn't sure I was in that category, and I'm definitely sure I'm not on the average level of the speakers already lined up for the 2004 ACS meeting. The list already includes: Melody Barnes, David Barron, Paul Begala, Judge Marsha Berzon, Lynn Blais, Daniel Bromberg, Arthur Bryant, Charles Burson, Elizabeth Cabraser, David Cole, Walter Dellinger, Heather Gerken, Deborah Goldberg, Marcia Greenberger, Scott Harshbarger, Wade Henderson, Samuel Issacharoff, Pamela Karlan, Ellen Katz, Juliette Kayyem, Goodwin Liu, Kate Martin, Abner Mikva, Gene Nichol, Spencer Overton, John Podesta, Anthony Romero, Teresa Wynn Roseborough, Theodore Shaw, Bradley Smith, Paul Smith, Judge Sonia Sotomayor, Geoffrey Stone, Cass Sunstein, Judge David Tatel, Daniel Tarullo, Judge J. Harvie Wilkinson, and Evan Wolfson. If you have any interest in where this country is going, or where it should go, don't miss this meeting. Tuesday, March 30, 2004
Sacrifices in the Name of TRUE Judicial Constraint
Here is an example of where my judicial ideology (strict constriction, textualism for those that haven't read my previous posts) causes me to sacrifice the liberal outcome I would prefer (the type of sacrificing I find surprisingly uncommon on both sides of the judiciary). The Volokh Conspiracy brings this story from Michigan concerning their Supreme Court's interpretation of the State's version of the second amendment ("Every person has a right to keep and bear arms for the defense of himself and the state"). The court in Lincoln Park Housing Comm'n v. Andrew found Michigan's ban on firearms in public housing was constitutional despite the "bear arms" clause. Without delving deeply into the legal reasoning, the Court talked about the police power to keep people safe and that the ban is not so much a ban as a condition for receiving an optional government benefit. Textualism and originialism leads me to feel comfortable allowing very restictive gun regulations due to the "militia" preamble (No words should be assumed to be superfluous) and the quasi-originalist idea that the authors of the constitution didn't intend to address glock nines being used by twelve year olds. But here lies two distinctions in the Michigan version. First, the limiting language is far broader ("...for the defense of himself...") than the federal version. Second, the Michigan constitution is from 1963, a much more recent time, when the authors should have been aware of the role guns play in modern society. While I think that including this clause in the modern era is irresponsible and somewhat ignorant, it was written with knowledge of that belief and inspite of it. So even though I would be willing to say something as brash as "rural Michigan's obsession with protecting thier hunting rifles is killing kids in detroit" (all racial subtext intended), a constitution is a constitution and they are broadly written and distinct from statutes for a reason: they provide a strict base which all legislation and judicial action must adhere. The other issue is putting requirements on government benefits. So far much of the partisan leanings have put liberals in the position of opposing the idea that "if you want our money- which you need for schools, highways, etc. -you have to follow our rules (since we can't otherwise pass the laws generally)". So if that is the legal rule you believe in (I think it is a reasonable argument), you should do so in every case, at least if you are a member of the judiciary. Monday, March 29, 2004
The Make up of the Right
DemocraticUnderground.com (home of great humor and blazing Democratic partisan politics) has an interesting article by Violet Lake on the variety of groups making up the Republican party (in her estimation- neo-conservatives, moderates, religious right and extremists). While it is just a discussion-starting article (its not intended to be a supported deep article), it does address the interesting conglomaration of interests (many contradicting each other) on the right and puts GWBush in a whole new light as a "uniter" (who said the left needed to be included in the "uniting").
Demise of the Lawyer-Statesman?
Thanks to the ACS Bulletin for the link to an interesting Economist.com story decrying the perceived decline of the "lawyer-statesman" or "statesman-adviser," said to fulfill "a sort of éminence grise function, the corporate equivalent of Père Joseph to Cardinal Richelieu, instead of the narrow, technical lawyer that was too often the general counsel of recent years." So far as I can see, lawyers like that are out there, but their influence is drowned by the short range maximize-profits-above-all mentality that dominates today's grab-what-you-can Enron-style board rooms. When we had better leaders, they wanted--and got--a different style of lawyer. It's wrong to blame today's lawyers for the problems in corporate leadership. Today's corporate leaders are getting exactly what they--and the politicians who support them--deserve. Sunday, March 28, 2004
2004 ACS Annual Meeting
Justice Stephen Breyer will deliver the keynote address at the second annual meeting of the American Constitution Society. The meeeting will be held June 18 - 20 at the Marriott Wardman Park Hotel in Washington, DC. The theme is "Liberty and Equality in the 21st Century." A word to the wise: Last year's meeting sold out in advance. If you want to attend this year, keep an eye on the ACS web site for registration information and move fast when it is available. A limited number of scholarships are available for law students.
More On Senate Memo Scandal
Josh Marshall dissects the political infighting behind the attempt to prevent any criminal prosecution of the Senate staffers who pilfered memos. He has a copy of the letter sent to the Department of Justice requesting a special prosecutor. Link via beSpacific. Thursday, March 25, 2004
NCLR 2004
I'm here in San Antonio at the 2004 National Conference of Law Reviews. Just heard the Honorable Royal Furgeson speak at lunch. He called for more scholarship on three areas: the decline of the jury in civil trials (we'll let citizens put a man to death but not decide the amount of money a corporation has to pay), the incarceration rate in the US (particularly the effects of the Federal Sentencing Guidelines) and civil liberties (Pedilla and Guantanamo, in particular). Excellent speaker. Had dinner last night at the "Republic of Texas" where they had the "Judge Roy Burger" on the menu. Eugen Volokh is to speak tomorrow, among others. More anon. Tuesday, March 23, 2004
Gay Marriage and Blackbox voting (a view from the Seattle weeklies)
a couple stories of interest (each slightly related to me) from last week's Seattle alternatives. (from The Stranger) Here is a human interest angle on the four gay couples that initiated Washington's main lawsuit fighting for gay marriage. One of them, Janet Helson is a well respected attorney in Washington's legal aid community (my wife externed with her in law school). The case is being brought by The Northwest Women's Law Center (where my Poverty Law professor works). (from the Seattle Weekly) Bev Harris has been a major activist in assuring accountability in electronic voting as well as one of the main people to expose that Sen. Hagel owns part of the company that makes voting machines in his home state of Nebraska. She's also my aunt. See BlackBoxVoting.org Tuesday, March 16, 2004
Conservative Judicial Activists
Balkinization has some thoughts on the debate about whether liberal or conservative judges tend to be more "activist." One of his observations: [I]t is a big mistake to think that judicial activism is the modus operandi of any one political ideology. Political ideologies are quite often opportunistic with respect to institutional questions. Exhibit A is the Religious Right's demand for a constitutional amendment that would take the power to define marriage away from the states, where it has traditionally resided. In this example it seems clear that federalism concerns are yielding to ideological goals. Monday, March 15, 2004
Criminal Prosecution for Refusing C-Section?
Eugene Volokh has some thoughts on the disturbing prosecution of a woman in Utah who refused to have a Caesarian section after doctors told her that failing to have one could put one of her two fetuses at risk. One of his thoughts: [D]oes it matter that medicine is an inexact science, and that a woman may well sincerely distrust her doctors' assurances that (1) a caesarean is needed to save the child's life, and (2) a caesarean would be safe for her? Is that another reason to leave the issue entirely up to the mother?
Does The Internet Cause Political Polarization?
The University of Chicago's Cass Sunstein, among others, has argued that the popularity of the Internet has contributed to a culture of polarization, in which people tend to seek out information supporting points of view to which they already subscribe. A NY Times article discusses the issue. Scott Rosenberg and Jack Balkin disagree with Sunstein. Saturday, March 13, 2004
Segregation Fighters?
Balkinization compares elected state officials who are issuing marriage licenses to gays "to southern school districts in 1953 spontaneously deciding to desegregate elementary schools based on their understanding of the state constitution." Friday, March 12, 2004
Is Pyor Recess Appointment Unconstitutional?
In a letter to the judges of the U.S. Court of Appeals for the 11th Circuit, Senator Edward Kennedy has challenged the legality of the recess appointment of William Pryor. Kennedy notes: No other Article III judge in the nation's history has ever received a recess appointment during a brief holiday period in the midst of a session of Congress. ... The judges of the Court of Appeals for the 11th Circuit cannot and should not allow its upcoming cases to be tainted by the presence ... of a judge who may well be constitutionally or statutorily ineligible to sit.
Constitutional Interpretation, again (and probably not for the last time)
There is a great post on constitutional interpretation by Randy Barnett at the very interesting, libertarian-bent Volokh Conspiracy blog. (side note: Prof. Volokh is the author of my first amendment text book which may have been the best laid out, non-hide-the-ball, straight forward text book of my law school career). Mr. Barnett is author of Restoring the Lost Constitution, a book I have yet to read so I can't comment on my agreement with it as a whole (though from his posts, we probably have some fundamental differences). But I do agree with the general premise of his post. He summarizes my most basic reason to push for a progressive move towards embracing strict construction: "Any method of constitutional interpretation that is malleable enough to lead to ALL the important results you care about--what Sandy Levinson calls "happy endings"--can be used by your political opponents to reach all the important results that THEY care about. " And I would argue that not only can it be used by those on the other side of the political spectrum from me, but it is, as we speak, being used by them while they purport to subscribe to a less malleable standard. But instead of holding their feet to the fire when it comes to "original meaning" of, say, the 11th or 14th amendments, they are chided for being "originalists" or "strict constructionists" when they only use those methods at their convenience . Sunday, March 07, 2004
Justice Blackmun Papers: The law school years
 After reading the post from Prof. David Garrow (on the SCOTUS Blog) regarding low turn out for Justice Blackmun's papers, I thought to myself "there's no reason I shouldn't be there looking at them." So after getting out of work early on Friday, I headed down to the Library of Congress to put my too seldom used LOC Library Card to use. Before I get to the papers, let me say two things. First, from my few trips there, the workers at the Library of Congress are perhaps the nicest, most helpful people in DC. They all seem just so happy to have someone there to assist. Second, The Library of Congress may be the greatest, most underused resource in the country. Besides allowing me to sit there and hold the very diary Justice Blackmun held when he was complaining about law school, my non-law passion (documentary photography) was thrilled to discover a massive online colletion of print-quality photographs from the Farm Security Administration, perhaps the greatest documentary photo project ever undertaken... all available to download for free! So back to the Blackmun papers. I went both Friday afternoon when there were probably 6 or 7 other people there and Saturday morning which probably had 10 to 15 people there. With so much to go through, I decided to avoid the "big" items that so many people have reported on and instead look to the items of everyday interest to me: his law school notebooks and diaries from those times. Below is a sampling of some of the fun, minor, everyday things from that period. The links lead to pictures I took of the various documents (did I mention how great the LOC is?). A description of how he took notes (exciting, huh? so maybe there's a reason this wasn't covered by Nina Totenberg or Linda Greenhouse!): In hardbound, lined notebooks, he appeared to take notes first in pencil in class, often writing around small translucent pieces of papers on which he had briefed cases (usually typed, sometimes written). It then appeared that he returned later to write further notes and "things to remember" in the margins (also at times inserting grammar corrections into his class notes) in red pen. He would also underline important sections of the class notes in red. Unfortunately, much of his hand writing was as difficult to deciefer as my own notes. Looking through his diary (which did feel a little bit wrong), provided very humanizing insight, and made me feel a connection to him as a law student: June 10, 1930- "the final of the finals. Torts came this morning and afforded the usual wachant [sp?]. one needed all of the four hours, but it was a good feeling about 12:30 to feel that it was about--" (this also highlights what seemed to be a habit of simply drawing a dash if he didnt' have room to finish the sentence and not finishing the thought anywhere else). He would play golf with his father, and tennis and squash with his friends: March 28, 1930- "Wrecked ye racquet completely today" He suffered through the usual ups and downs of dating: May 3, 1930- "Got screwed in a date tonite. Had got tickets for the Copley [sp?] and a car and all when I heard "that Betty's father was in town" and she had to spend the eve with him. I had to step to get out of things, but succeeded. Called cheri." September 4, 1930- "Fussed around downtown a bit. Wan- dered upstairs during noon hour and spoke with Emily Johnson, my little telephone operator. She was just as sweet as ever, I should have asked her to lunch. Made--" September 5, 1930- "lingered about the library a bit this morning. Met Emily at 1 and discovered to my dismay that the is a bit of a cripple - difficulties in the feet. It was just as tho something had struck [sp?] me.--" He worried about finances: May 1, 1930- "A hot may day and my first bit of review [sp?]. Went over the financial situation and realize I have actually [sp?] pulled a lot on dad this year. I have got to land a scholarship!" And then he just had those law school days we all recognize: April 28, 1930- "a perfect day but oh hell." [Date?], 1930- "Am studying to keep up. That is about all." April 19, 1930- "Oh hell," But the best part of my expedition to the Library of Congress was simply the feeling that I was looking through papers so few other people had seen. While most of it may have been read by a host of law clerks, numerous family members, other researchers and two Supreme Court reports, in my head at least a few of the passages had only been read by Justice Blackmun and I. And even for someone as unsentimental as myself, that is an amazing sensation to be turning pages that hold such a direct link to history. Saturday, March 06, 2004
Next ACS Convention: June 18-20
The 2004 ACS National Convention will take place June 18-20, 2004 at the Marriott Wardman Park Hotel in Washington, D.C. Details later.
More On Hacking of Senate Computers
Computer security expert Bruce Schneier, author of Beyond Fear, links to the broadly-worded criminal statute that Republican Senate staffers apparently violated by hacking into a Democratic computer and observes: I've read various people asking why this isn't Watergate-II. Watergate was such a big deal because the direction came directly from the President. Since then, all politicians have learned not to leave that kind of evidence lying around. There are always sufficient underlings available to take the fall when this kind of thing comes to light. Friday, March 05, 2004
More Scalia Hunting Trips
It appears that Scalia's hunting trip with Cheney which Jon-Erik Griffith Storm posted about below (pheasants- sorry!), was not the Justice's first questionable trip into the woods. (Link via Bashman). Thursday, March 04, 2004
SCOTUS Revelations
As mentioned below, many of Justice Blackmun's records have been unsealed, and the AP carries this story today about how close Roe was to being overturned by Casey: it was just Kennedy's last minute second thoughts that kept Roe in tact. A memo from Kennedy to Blackmun reads: "I need to see you as soon as you have a few moments. I want to tell you about a new development in Planned Parenthood v. Casey. It should come as welcome news." Now maybe I've just been visiting Wonkette too much, but this next part I found fascinating. The notes show that the court was not unaware of the case's political implications. At one point, one of Blackmun's law clerks wrote that the three centrist justices could pay a price for disagreeing with the White House view on abortion. The unmarried Souter might lose his popularity with then-first lady Barbara Bush as her favorite "most-eligible bachelor" to invite to White House dinners, the clerk wrote. If there are any former SCOTUS law clerks out there: Are clerks usually tasked with vetting the Court's decisions for potential conflicts with the Justices' social lives? Update: SCOTUSBlog has summaries and links to the Blackmun records beginning here and rolling out throughout the day (scroll up). |