The New Yorker’s Jeffrey Toobin has a long essay purporting to establish, as the essay’s subtitle puts it, “how Chief Justice John Roberts orchestrated the Citizens United [v. FEC] decision”—the January 2010 ruling that struck down a provision of the McCain-Feingold campaign-finance law that made it a felony for a corporation to broadcast “electioneering communications” within 30 days of a primary election and 60 days of a general election.
In this post, I will show that Toobin’s evidence doesn’t support his thesis. In the next post, I will address some of Toobin’s wild distortions about Citizens United, including this baseless libel:
So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party. Roberts’s choice was: a lot.
As Toobin elaborates his thesis, the result in Citizens United “[a]bove all … represented a triumph for Chief Justice Roberts,” who, “[e]ven without writing the [majority] opinion …, more than anyone, shaped what the Court did.” Toobin highlights, in particular, two actions that Roberts took:
First, after the initial oral argument in the spring of 2009, Roberts made the “strategically ingenious maneuver” to have the Court order briefing and reargument on a broader question.
Second, after the reargument, in “another brilliant strategic move,” Roberts assigned the majority opinion to Justice Kennedy. By so doing, “he obtained a far-reaching result without leaving his own fingerprints.” Had he written the majority opinion himself, Roberts, who “made much of his judicial modesty and his respect for precedent,” “would have been criticized for hypocrisy.”
I mean no disrespect to Chief Justice Roberts, whose intellect I deeply admire, to observe that there was nothing remotely “ingenious” or “brilliant” about either of these decisions. Indeed, the facts that Toobin lays out make these decisions rather obvious. And these same facts would better support the thesis that the ultimate result in Citizens United reflected the failure of Roberts’s effort to unite the Court around a much narrower ruling—and that it was instead Justice Kennedy who, “more than anyone, shaped what the Court did.” (I’m not embracing this alternative thesis; I’m simply pointing out that Toobin’s evidence better supports it.)
By Toobin’s own account, after the initial argument in the case, Roberts “assigned the Citizens United opinion to himself” and drafted a narrow opinion that would have held that the campaign-finance provision at issue did not apply to a documentary, presented on video on demand, by a nonprofit corporation. (I gather that the draft opinion would have held that such application was barred by the First Amendment, rather than simply not being within the scope of the provision, but Toobin’s account is vague on this elementary point.) But the Court wouldn’t unify around such a holding: the liberal justices rejected it, and “Kennedy wrote a concurrence which said the Court should have gone much further.” When the “conservative Justices began rallying to Kennedy’s more expansive resolution of the case,” Roberts “withdrew his own opinion and let Kennedy write for the majority.” In other words, by Toobin’s account Roberts lost the majority for the narrower approach that he had drafted, and Kennedy won the majority for his more expansive approach.
Toobin says that Justice Souter then “wrote a dissent that aired some of the Court’s dirty laundry” (whatever that means) and “accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” Specifically, one gathers, Souter complained that the majority’s more expansive approach was deciding issues that hadn’t been briefed and argued. Toobin evidently didn’t gain access to Souter’s draft dissent (he doesn’t quote it at all), and his thirdhand account seems unreliable in one key respect: If Souter were responding to a majority opinion by Kennedy, why would he be directing accusations specifically against the Chief Justice (as Toobin alleges), rather than against Kennedy or the majority as a whole?
Toobin contends that Souter’s draft dissent amounted to an “extraordinary, bridge-burning farewell to the Court” that “could damage the Court’s credibility.” Whether or not that was true (again, I doubt that Toobin has actually read the draft dissent, and I also doubt that it was more vehement than Justice Stevens’s ultimate dissent), Souter’s complaint that the broader issues hadn’t adequately been briefed and argued obviously invited the Court’s decision to have further briefing and reargument. No stroke of genius was required on Roberts’s part.
As for Roberts’s “brilliant strategic move” of assigning the majority opinion to Kennedy after reargument: What could be more obvious? Again, by Toobin’s own account, Kennedy’s “more expansive resolution” had won the majority away from Roberts the first time around. Why would Roberts think of assigning the majority to anyone else?
It’s also silly of Toobin to contend that Roberts “obtained a far-reaching result without leaving his own fingerprints.” Toobin provides not an iota of evidence that Roberts preferred that far-reaching result to his own initial effort to unify the Court around a much narrower approach. Nor does he provide any reason to believe that Roberts was somehow manipulating Kennedy (in the manner, say, of Justice Brennan’s working behind the scenes on Justice Blackmun on Roe v. Wade). Further, Roberts did leave “his own fingerprints”—in the form of providing the decisive fifth vote for Kennedy’s opinion as well as in his extensive concurring opinion (which Toobin doesn’t mention, much less confront, even though—or because?—it refutes much of his substantive criticism).
Nor, contrary to what Toobin suggests, did Roberts’s “brilliant strategic move” enable him to escape being “criticized for hypocrisy.” For example, a mere four days after the Citizens United ruling issued, Jonathan Alter, in a Newsweek essay, claimed that the ruling was inconsistent with the Chief Justice’s confirmation testimony and complained that “instead of ruling narrowly, the Roberts Court—in a new standard for judicial hypocrisy—struck down the laws of 22 states and the federal government.” Similar criticisms have been commonplace.
Update: A reader calls to my attention a SCOTUSblog post by Tom Goldstein from yesterday evening that similarly concludes that “the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.”
2008—The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them.
Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage.
Michigan Supreme Court justice Diane Hathaway is under scrutiny for a series of financial transactions that could subject her to investigation by ethical and law-enforcement authorities. As Ross Jones of local ABC affiliate WXYZ reports:
[R]ecords show in a little over a year, [Justice Hathaway] owned four homes: one in Florida, and three in Grosse Pointe Park.
The homes are a part of a dizzying property shuffle that experts say raise ethical and legal questions, but Justice Hathaway has been ducking those questions for more than six weeks.
. . . .
[Lawyer] Howard Young says when his clients have asked about moving assets out of their names to qualify for a short sale , he’s told them to be cautious.
“Those are typically fraudulent transfers, because they are done with the intent to delay, hinder, or defraud creditors,” said Young.
“And we are very careful to advise against making such transfers because even as an attorney, you can well be considered a co-conspirator in a fraud and that has significant ethical issues, and the state bar is going to come looking,” he said.
Judges are held to a high standard of conduct in Michigan, and according to the state judicial code, they need to avoid even the “appearance of impropriety.”
Scott Johnson at Powerline Blog relays a more detailed account of what happened, from the perspective of a lawyer who says the transactions “could well be Federal and state felony bank fraud.” Justice Hathaway seems to be referring questions to a top criminal-defense lawyer, but the chief justice of the Michigan Supreme Court, Robert Young, has issued the following statement:
Ordinarily, the financial transactions of any person, including a Justice, are personal matters. However, the WXYZ story raises very serious allegations about Justice Diane Hathaway’s financial transactions. I am naturally very concerned about these allegations.
Because media allegations are just that and may fail to include a complete picture of a complex set of financial transactions, this morning I advised Justice Hathaway to respond publicly to these allegations to clear the air. For now, I have no further comment on the WXYZ allegations.
In the course of a Breitbart News interview on new media, Senate Republican leader Mitch McConnell was asked about his favorite blogs. Among his several mentions, Senator McConnell cited Bench Memos:
I’ve always had a keen interest in the Supreme Court, so I also value the blogs that have popped up over the years on issues relating to the law and the courts. I think Ed Whelan does great work over at Bench Memos, for instance.
I’m grateful for Senator McConnell’s generous comments and for his interest in Bench Memos—and especially, of course, for the excellent job he has done leading the Republican caucus on judicial nominations.
1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.
2009—Ramona Ripston, executive director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8.
But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case.
1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.
To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.
2012—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.” In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See here for relevant excerpts from the report.)
2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.
This coming Tuesday, May 15, Jeffrey Rosen (professor of law at George Washington University and legal affairs editor of the New Republic) and I will be discussing the question “What is Judicial Activism?”The Wall Street Journal’s Jess Bravin will moderate the discussion. The free event, which includes lunch, will take place in the Rayburn House Office Building, Room 2226, from noon to 1:30. It’s sponsored by the Capitol Hill lawyers chapter of the Federalist Society.
It seems that no Supreme Court-compelled deed goes unpunished. Such is the case for the City of New Haven, Connecticut. In its landmark 2009 ruling in Ricci v. DeStefano, the Supreme Court concluded that New Haven, in violation of Title VII of the Civil Rights Act of 1964, intentionally discriminated against a group of white and Hispanic firefighters — including plaintiff Frank Ricci — when it rejected the results of two promotional exams because of the race of those whose top scores entitled them to the promotional vacancies at stake.
The City’s professed excuse was that no black firefighters could be promoted if the results were used (which turned out to be false). The Court found no evidence that the “tests were flawed” and ordered the City to certify the results.
But a new lawsuit filed by a black firefighter defies the Supreme Court’s holding. It will be up before the Supremes for consideration on May 17. New Haven has filed a petition for certiorari asking the Court to intervene and enforce its mandate, thereby relieving it from such post-remand suits brought by those disgruntled by the Ricci decision.
The Court should take the case and issue a summary and immediate reversal, with stern words of admonishment to the Second Circuit panel that disregarded the Supreme Court’s judgment and allowed essentially frivolous discrimination claims to be pursued against the City.
After years of discriminatory treatment of the white and Hispanic firefighters who filed the original Ricci lawsuit, New Haven actually followed the order of the Supreme Court and certified the tests, filling the promotional vacancies at issue. So the Ricci plaintiffs finally got the promotions they had been long denied. Significantly, among the 16 promoted to lieutenant were three black firefighters. .
But lying in wait was lawyer David N. Rosen, a visiting lecturer at Yale Law School and vocal detractor of the Supreme Court’s holding. He filed an EEOC charge on behalf of a black firefighter after New Haven certified the test results and promoted the Ricci firefighters, as it had been ordered to do by the Supreme Court! Rosen claimed that certification had a “disparate impact” on the black firefighter. Even the EEOC, which was hardly supportive of the Ricci plaintiffs, summarily dismissed the charge without investigation “in light of” the Ricci decision. But Rosen was not deterred — he proceeded with his suit, going so far as attempting to intervene in Ricci on remand from the Supreme Court, a move that prolonged proceedings and cost the parties much time and money to defeat.
The new lawsuit filed by Rosen was randomly assigned to Judge Charles S. Haight, a federal judge from the Southern District of New York, who was hearing cases in Connecticut. Rosen tried unsuccessfully to get the case transferred to Judge Janet Bond Arterton, the district court judge who originally threw out the claims of Frank Ricci and his colleagues and who sources in New Haven say was very unhappy about being overturned by the Supreme Court. Arterton even showed up at the Supreme Court’s oral arguments on Ricci, ensconcing herself in the audience amidst the firefighters whose careers would have been wrecked had her flawed Title VII theories carried the day.
Haight very wisely dismissed the lawsuit because it was foreclosed by the Supreme Court’s decision in Ricci. As Haight said, “this court is bound by the decision of the high court,” and what the Supreme Court held in Ricci “squarely forecloses” the claim by the black firefighter. What Rosen was trying to do was “circumvent” the Supreme Court’s order “by filing another lawsuit with respect to the same exams.” Rosen’s client could have intervened at anytime in the years that the original Ricci case was pending before the district court, but opted not to do so, even though all of the firefighters in New Haven “were acutely aware of the pendency of the Ricci litigation.”
Yet in an inexplicable decision, a three-judge panel of the Second Circuit Court of Appeals reinstated the new lawsuit, directly contravening the Supreme Court. The Second Circuit did this despite acknowledging that the Supreme Court had ordered New Haven to certify the promotional test results. It even quoted the Supreme Court’s statement that the City “would avoid” disparate-impact liability for certifying the test results. But the Second Circuit dismissed that statement as merely “dicta…perhaps attributable to a simple logical error.” It was the Second Circuit that made a “logical error” when it reinstated this lawsuit, not the Supreme Court in its holding.
The consequences are indeed ominous. If the Second Circuit ruling stands, employers all over the country will face liability on both ends of Title VII litigation with “two competing groups seeking the same job vacancies under conflicting discrimination theories.” The Ricci majority wisely envisioned the very lawsuit brought by Rosen. The Court was clear that it was resolving competing expectations of employers under the two dueling liability provisions. Having anticipated that someone like Rosen might, in reaction to the Ricci ruling, sue New Haven for disparate impact, the Court provided explicit guidance, holding that New Haven would avoid disparate impact liability based on the fact that had the City not certified the results, it would have been subject to disparate treatment liability.
The practical results of the Second Circuit decision — which may be what is being sought with this abusive lawsuit — could lead employers to abandon the use of all promotional exams. Otherwise, employers would face the prospects of being “whipsawed” between the two competing liability provisions of Title VII. As the City’s petition to the Supreme Court says, employers would “have to be prepared to promote two applicants to every available position: one to avoid a disparate impact and another to avoid disparate treatment.” That is not an exaggeration, but a reality.
The result of the Second Circuit’s mistaken decision is that New Haven has already been hit by a second disparate impact lawsuit filed by black firefighters. If the Supreme Court does not intervene and summarily reverse, the City is looking at five to 10 years of grueling (and expensive) litigation for following the Supreme Court’s order. As Frank Ricci points out in his amicus brief filed on behalf of the City, this has already had “a deleterious effect on the operations of the New Haven Fire Department and hamstrung the City’s filling of ever-increasing new vacancies in the department’s command ranks, stalling the careers of hundreds of firefighters.” Other amici, including the National League of Cities, note the dire consequences for cities and employers nationwide.
It would be fundamentally unfair to expose New Haven to disparate impact liability for implementing the very remedies that the Court mandated. Clearly, an employer’s compliance with a judicial mandate should not trigger further liability under Title VII. The only result more absurd than holding employers liable for following a court order would be for the Supreme Court to ignore the Second Circuit’s defiant challenge to its authority as the court of final review for questions of federal law. The Court should not tolerate imposition of such costly penalties on a party for obeying the Court’s own orders.
— Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and a former commissioner on the Federal Election Commission.
In Part I I reported that the Missouri legislature has approved a constitutional amendment that, if approved by voters, would substantially improve Missouri’s method of choosing judges. I will now explain why those changes were vital to the integrity and independence of Missouri’s appellate courts.
The left-leaning Progressive advocates who came up with the Missouri Plan saw it as the surest way of giving the Bar control over judicial selection. Not surprisingly, such a structure benefits the special-interest group with the greatest incentive to dominate the Bar, and in Missouri it is trial lawyers. Justice O’Connor and her allies in various Soros-funded organizations have been campaigning across the country (mostly unsuccessfully) on the argument that the Missouri Plan is a non-political method for selecting judges.
But the more the issue is studied, the more we learn that the Missouri Plan is by far the most deeply politicized method for selecting judges. And, unlike the federal method or elections, which provide for democratic accountability, the politics of the Missouri Plan happen behind closed doors and involve only a handful of unaccountable people.
Who are those people?
In Missouri, they tend to be members of the Missouri Association of Trial Attorneys (MATA). MATA is also known as the organization most likely to challenge tort-reform laws or sue you if you happen to operate a profitable, job-creating business. In fact, eight out of the last ten Bar-members of the appellate nominating commission in Missouri have been members of MATA (list below). Five of those eight were on the Board of MATA, and another two served as the organization’s president.
So no one should be surprised by the results of Professor Brian Fitzpatrick’s empirical research showing that Democrats have been the overwhelming beneficiaries of this process regardless of the party affiliation of the governor. For the nominees for whom campaign-donation data was available, 87 percent donated primarily to Democrats, while only 13 percent gave primarily to Republicans. The amount of money contributed by judicial nominees was skewed 93 percent to Democrats and only 7 percent to Republicans.
Nor should anyone be surprised that the three most recent nominees for the Missouri Supreme Court all leaned decidedly to the left, and included two friends of MATA: Judge Michael Manners (a Democratic contributor and former president of the Missouri Association of Trial Attorneys), lawyer Joe Jacobson (a Democratic contributor and personal-injury lawyer whose website indicates that he is frequently involved in large class actions), and appellate judge George Draper (active in Democratic circles).
I would have preferred to see Missouri legislators copy the U.S. Constitution, but the changes that they approved should go a long way toward putting an end to the dominant role the Missouri Bar and MATA have played when it comes to choosing Missouri’s appellate judges. Again, congratulations to all involved.
*List of MATA members who serve or served on Missouri’s Appellate Judicial Nominating Commission
Last week the Kansas Supreme Court decided a case that has created an enormous level of uncertainty for companies that do business in Kansas. Ted Frank has the details, but here is a long quote:
Last week, [plaintiffs' lawyers] hit paydirt with another lawsuit against Leegin Creative Leather Products, as the Kansas Supreme Court held resale price maintenance per se illegal. But the decision goes beyond that, arguing that Kansas law holds other so-called restraints on trade illegal, even when adjudged “reasonable” (i.e., beneficial to consumers) by federal antitrust standards. Such a rule would effectively hold illegal common business practices recognized as proper for decades, and would be a pure wealth transfer from society to lawyers, and from out-of-state businesses and consumers to Kansas. It would force interstate businesses who could not readily operate differently in Kansas than in the rest of the country to change their practices, to the detriment of consumers in all fifty states. It’s not just bad policy, but an impingement on interstate commerce and should be held a violation of the Commerce Clause for its attempt to expropriate the benefits of interstate commerce.
I’d be negligent if I didn’t mention that Kansas is one of 13 states that use the Missouri Plan to select judges.
Yesterday the Missouri House voted to approve a constitutional amendment that would make significant improvements to the Missouri Plan, the state’s method for selecting judges. (Also known by the propagandist misnomer “merit selection.”)
Under the terms of the current Missouri Plan, governors must choose appellate and supreme court judges from a list sent to them by a seven-member nominating commission. That nominating commission consists of the Chief Justice, three lawyers chosen by the Missouri Bar, and three laypersons chosen by current and past governors.
The amendment, which must be approved by voters on the November ballot, would dilute the authority of a special interest (the Missouri Bar) and place substantially more responsibility in the hands of the governor, who is accountable for his decisions. Specifically, the governor would appoint four members to the commission (two upon election and two midway through his first term), and the Missouri Bar would retain its three commissioners.
This structure is not perfect, but it does follow the principles articulated by the Framers of the U.S. Constitution. As I have written before: During the debates on the U.S. Constitution, James Madison proposed the appointment of judges by the president with the concurrence of the Senate. Madison believed “this would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.” Alexander Hamilton echoed that statement in Federalist 76, explaining that nomination by the chief executive was superior to nomination by a collective body because:
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.
There will be no confirmation process in Missouri, but the voters themselves will have a check on the judicial branch in the form of a retention election, both one year after their appointment and then again after their first full term.
In Part II I will explain why these changes are necessary, but let me summarize by saying that the Missouri Plan has become so thoroughly dominated by the Missouri Bar and Missouri Association of Trial Attorneys that one could argue that the state’s judges have become their agents. (I’m told many local judges were actively calling and lobbying legislators to vote against these reforms, so it sounds like my agency theory is true in more ways than one.) The modest changes that were approved by the legislature should go a long way toward resolving that problem and giving the people of Missouri more of a say over who serves on their courts.
Congratulations to the leaders of the Missouri Senate and the Missouri House for getting the job done, to Senator Jim Lembke and Representative Stan Cox for sponsoring the legislation, and to all of the legislators and advocates who supported reform. Your efforts could lead to positive and historic changes to the third branch of government.
In addition to the wealth of commentary on the president’s announcement yesterday that he supports same-sex marriage (including the items Ed linked earlier today), I think some questions for the president are in order. After all, he used to teach constitutional law (or some parts of it) at the University of Chicago. Here goes:
You said yesterday, Mr. President, that you “helped to prompt” the Justice Department to take its current position (adopted in late February 2011) on the constitutionality of the Defense of Marriage Act (which you mistakenly, but somehow tellingly, called the “Defense Against Marriage Act”). In the Attorney General’s statement on this matter, he gives you more credit than you humbly took yesterday. He tells us that “the President has concluded” that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”
Can you tell us now whether this is still your view? If Section 3 of DOMA is unconstitutional, what about Section 2, on the interstate validity of same-sex marriages contracted in some states, which other states do not wish to recognize? Is that unconstitutional as well, on similar grounds? You seemed to say so to Robin Roberts yesterday when she asked whether your Justice Department would “join in the litigation in fighting states that are banning same-sex marriage.” Your reply was that the act–you didn’t say just one part–is now considered by the executive branch to be “a violation of [the] equal protection clause.”
If that is so as respects Section 2 of DOMA, what becomes of your stated position yesterday in the same interview that “this is an issue that is gonna be worked out at the local level,” and that it seemed all right with you “that different states are coming to different conclusions”?
Can you explain what is meant by “heightened scrutiny” under the equal protection clause, and why a failure to grant marriage rights to same-sex couples triggers it as to a certain “classification” of persons? And what “classification” of identifiable persons would that be?
Can you explain why you believe, as you said yesterday, that last summer’s New York legislation of same-sex marriage was “respectful of religious liberty,” when there were and remain strenuous objections to the contrary from prominent religious leaders in the state? What should be the parameters of “respect” for religious liberty under the new dispensation of same-sex marriage that you envision?
Judge Vaughn Walker, in the Prop 8 case in California, held that a state constitutional amendment that recognizes marriage only as between one man and one woman does not even pass the “rational basis” test under the due process clause. Do you agree with him? Can you explain why or why not? Is there a firmer ground for such a conclusion under the due process clause, or under equal protection? Should Judge Walker have applied “heightened scrutiny,” as you evidently did to DOMA six months later?
Judge Walker also held, as a “finding of fact,” that “religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians,” and that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.” He concluded that the irreducibly religious basis of opposition to same-sex marriage rendered it wholly without any “rational basis.” Do you agree with these findings and conclusions? Would you like to separate yourself from Judge Walker, in light of your statement yesterday that your fellow citizens who, for religious or other moral reasons, disagree with you, are “not coming at it from mean-spirited perspective”?
Judge Stephen Reinhardt earlier this year, writing for a Ninth Circuit panel that upheld Judge Walker’s ruling, shifted the ground of decision somewhat, arguing that inasmuch as the state of California had been granting marriage licenses to same-sex couples for 143 days in 2008 (thanks to the diktat of the state supreme court), therefore Prop 8 amounted to “new law” that arbitrarily deprived these persons of an established right, contrary to the equal protection clause. Did he get this right? Was Judge Reinhardt correct to resort to the equal protection principle here, instead of due process? Do you agree that the state supreme court made no “new law” in its ruling for same-sex marriage in 2008, but that the people of California did make “new law” in Prop 8 later that year?
If Judge Reinhardt is correct, does it follow that the Constitution is violated only in the case of those states that have created same-sex marriage but subsequently eliminated it as a form of legal union? Or is the Ninth Circuit ruling somehow generalizable to other states that have restricted marriage to one man and one woman without any intervening period when same-sex marriage existed? If so, how?
Can there be a federal constitutional right to same-sex marriage in some states but not others?
I’m sure some further questions will occur to me, Mr. President. If so, I’ll be back.
That’s the title of an NRO symposium today on President Obama’s newfound position on same-sex marriage. I’ve made a brief contribution to the symposium, as has Matt Franck. Matt also has an excellent, and more extensive, Public Discourseessay titled “Obama, Marriage, and the ‘Anti-Gay’ Theme.” NRO’s house editorial is also worth reading, as is a Corner post by Ryan Anderson, Robert P. George, and Sherif Girgis, co-authors of a forthcoming book, What is Marriage? Man and Woman: A Defense.
Here’s an excerpt from my symposium piece:
Obama’s newfound position is ominous for the American future. The American experiment in self-government depends on a vibrant marriage culture that transforms the little barbarians who emerge from the womb into responsible and virtuous citizens. The traditional male-female nature of marriage reflects the elementary biological reality that only heterosexual intercourse naturally generates children. The institution of marriage exists to maximize the prospect that children will be born and raised in stable and enduring families by the fathers and mothers responsible for their existence.
Redefining marriage to include same-sex couples would permanently reorient the institution of marriage away from this central mission. Indeed, proponents of same-sex marriage routinely dismiss as irrational the inherent link between marriage and responsible procreation and child-rearing.
Our marriage culture is on the verge of collapse — a collapse for which heterosexuals are largely responsible — with all the social pathologies associated with rising out-of-wedlock births and single-parent families. On marriage as on so many other matters, President Obama has failed to recognize what is needed to sustain the American experiment.
2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified.” After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.
According to a press release issued by his office today, Senator Mike Lee of Utah “blasted the White House for misleading the public on the issue of judicial vacancies.” Here are excerpts from Senator Lee’s statement at a Judiciary Committee hearing:
The reality is that judicial vacancies are down 20 percent from last year and are at the lowest level in nearly three years.
The vast majority of current vacancies remain for one reason — President Obama simply has not nominated individuals for those judgeships. With respect to the current 76 judicial vacancies, the Obama administration has made only 29 nominations.…
To date, the Senate has confirmed 143 of President Obama’s district and circuit judges. That is significantly more judicial confirmations in the first three or so years of the Obama administration than the 120 we confirmed during the previous four years of President Bush’s second term.
And we continue to confirm more. So far this year we are well above historical standards. The average number of confirmations by May 9 for a presidential election year is 11. We have already confirmed 21 judges this year. That’s almost double the normal pace.
Finally, the suggestion of “unprecedented filibusters” is simply ridiculous. During President Bush’s first three years, Senate Democrats forced 19 cloture votes on judicial nominees—19 votes to filibuster judges. During President Obama’s first three years the Senate took only 6 such votes.
We have treated President Obama’s nominees better than the Democrats treated President Bush’s nominees. For the White House or Senate Democrats to suggest otherwise is false and hypocritical.
One noteworthy aspect of Indiana state treasurer Richard Mourdock’s resounding defeat of longtime incumbent Richard Lugar in the Republican primary for the U.S. Senate seat yesterday is the role that Lugar’s votes for President Obama’s Supreme Court nominees, Sonia Sotomayor and Elena Kagan, played in his defeat. Some examples:
A statement by Mourdock’s spokesman late in the campaign cited Lugar’s votes “for Obama’s liberal Supreme Court judges” as the lead piece of evidence showing that Lugar “has truly lost touch with his conservative Hoosier values.”
This Indianapolis Stararticle today offering five reasons that Lugar lost highlights his support for Justice Sotomayor and Justice Kagan in reason #2, Lugar’s voting record.
And a very active Lugar supporter in Indiana tells me (by e-mail): “Lugar’s votes for Sotomayor and Kagan were critical to the outcome. Mourdock and Club for Growth hammered Lugar for those votes. Those votes were as big as any other issue in his defeat.”
There should of course be no surprise here, as the political mobilization of conservatives on Supreme Court and other judicial nominations over the past decade or more has transformed the judicial-confirmation process. The Left mobilized first, during the Reagan years, most notably in the defeat of Robert Bork’s Supreme Court nomination in 1987. Even in the aftermath of the Bork and Thomas hearings, Republican senators continued to invoke the principle of deference to the president, as they voted overwhelmingly in favor of President Clinton’s nominations of Ruth Bader Ginsburg (confirmed 96-3) and Stephen Breyer (87-9*) in 1993 and 1994. But conservatives came to recognize that a unilateral, unreciprocated embrace of that deference model amounted to abject surrender in the battle over the courts, and most Republican senators saw fit to change course. But not, alas for him, Senator Lugar.
* Curiously, Lugar was one of the nine senators who voted against Breyer’s nomination. Lugar based his vote not on grounds of judicial philosophy but on Breyer’s investment in a Lloyd’s of London insurance syndicate that exposed him to unlimited personal liability. That investment, Lugar maintained, showed “extraordinarily bad judgment” and would “force him necessarily to recuse himself from many cases that come before the Supreme Court of the United States involving insurance, pollution, asbestos suits, other issues.” (Cong. Rec., July 29, 1994.) I’d be interested in a thorough account of how Breyer, unlike other Lloyd’s investors, somehow managed to escape that investment and the unlimited personal liability that accompanied it. [Update: Tony Mauro kindly calls my attention to his Legal Times article, dated Nov. 21, 1994, that discusses how Breyer extracted himself from the Lloyd’s insurance syndicate by purchasing a reinsurance policy with another Lloyd’s syndicate. The article offers competing views on whether that escape was available to other Lloyd’s investors.]
The Senate confirmed federal district court judge Jacqueline Nguyen to the U.S. Court of Appeals for the Ninth Circuit today, 91-3. As BLT reports, the confirmation was the result of a March deal to proceed with votes on 14 noncontroversial judicial nominees. The Senate also confirmed two district court judges.
At the end of his “In the Loop” political-gossip column today, the Washington Post’s Al Kamen discusses the so-called “Thurmond rule,” which he defines as “posit[ing] that, sometime in the summer in a presidential election year, no judges will be confirmed without the consent of the Republican and Democratic leaders and the Judiciary Committee chairman and ranking minority member.” Kamen continues:
Democrats have refused to recognize the rule and are known to flout it, blissfully confirming Republican presidents’ nominees well into the fall — thus cutting the number of vacancies that an incoming Democratic president might be able to fill.
The Republicans not only adhere to the rule but have been most adept at a fine four-corner stall until the rule might plausibly be invoked. [Emphasis in original.]
I’m puzzled by Kamen’s assertions in these two paragraphs. Kamen contends that “Democrats have refused to recognize the rule,” but he links to a recent column of his in which he quotes Senate Judiciary Committee chairman Patrick Leahy invoking it in 2008. And (to limit myself to one more example) this Politicoarticle from March 2008 likewise has Democratic senator Dianne Feinstein “invoking what’s known as ‘The Thurmond Rule,’” as she “suggested that any Bush nominees who haven’t made it through the Senate by June aren’t going to make it through at all.” To be sure, that Politico article does state:
Time was, the Democrats weren’t particularly keen on the rule. In July 2000, with Clinton on his way out the door and Republicans in control of the Senate, Sen. Patrick Leahy said the Senate could not “afford to follow the ‘Thurmond Rule.’”
But it’s hardly surprising that senators on both sides of the aisle take a more friendly or more hostile approach to the ill-defined Thurmond rule depending on the party of the president making the nominations.
A quick look at the most recent statistics would also seem to refute Kamen’s one-sided account. According to the Biographical Directory of Federal Judges database, the Senate confirmed seventeen Clinton nominees after July 4, 1996 (and before year-end); nine Clinton nominees after July 4, 2000; seven Bush nominees after July 4, 2004; and fourteen Bush nominees after July 4, 2008 (at least several of whom had strong Democratic ties and were evident instances of outright White House capitulation to Democratic senators).
In sum, I can’t discern any factual basis for Kamen’s assertions.
2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”. Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)
One year ago, in what Chief Judge Alex Kozinski’s dissent labeled an “Article III putsch,” Ninth Circuit outlaw Stephen Reinhardt issued a 77-page opinion that would have placed the Department of Veterans Affairs’ mental health treatment and disability compensation programs under the direct supervision of a federal district judge. Today, an en banc panel of the Ninth Circuit reversed Reinhardt by a 10-1 vote, a margin that is all the more noteworthy in light of the fact that all five Clinton appointees on the panel—yes, even Reinhardt’s usual ally, Judge Sidney Thomas—voted against Reinhardt. (Only Reinhardt’s fellow Carter appointee, Judge Mary Schroeder, dissented from the en banc ruling.)
Among the various legal developments that occurred while I was in Rome last week was an interesting Third Circuit decision in United States v. Bond, which held that a federal criminal statute implementing the 1993 Chemical Weapons Convention could constitutionally be applied against a woman who applied highly toxic chemicals to handles and knobs that she expected her husband’s pregnant mistress to touch. (If this factual summary sounds familiar, that may be because the Supreme Court decided a separate legal issue in the same case in 2011.)The case presented the question of how broadly the Court’s 1920 decision in Missouri v. Holland should be read, and Judge Thomas Ambro, in a concurring opinion, wrote separately
to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.”
As Judge Ambro (a Clinton appointee) put it, in the absence of a clarifying explanation,
a blank check exists for the Federal Government to enact any laws that are rationally related to a valid treaty and that do not transgress affirmative constitutional restrictions, like the First Amendment. This acquirable police power, however, can run counter to the fundamental principle that the Constitution delegates powers to the Federal Government that are “few and defined” while the States retain powers that are “numerous and indefinite.” The Federalist No. 45 (James Madison).
I haven’t looked closely enough at this case to have a view whether it provides a good vehicle for the Court to re-address Holland, but the underlying issue is of great importance, as it bears directly on the transnationalist progressive project to misuse treaties to undermine our constitutional system of representative government and federalism.
House Oversight and Government Reform Committee chairman Darrell Issa issued a memorandum and draft contempt report on Thursday making the case for holding Attorney General Eric Holder in contempt of Congress. The report details the Department of Justice’s stonewalling of the Fast and Furious “gunwalking” program investigation. Under the program, ATF officials actively allowed as many as 2,000 illegally purchased guns to flow into the hands of U.S.-based operatives of a Mexican drug cartel. In December of 2010, suspected illegal aliens killed U.S. Border Patrol agent Brian Terry in a firefight. Investigators found two AK-variant guns which they linked to the DOJ’s “gunwalking” program. This tragedy sparked the Oversight Committee’s current investigation.
Everyone agrees, as Secretary of Homeland Security Janet Napolitano put it, that the program involved “lots of mistakes” that “should never be repeated.” This makes the investigation, a joint operation with Senate Judiciary Committee Ranking member Chuck Grassley, important. The DOJ apparently doesn’t think so. Although the Oversight Committee received around 7,000 pages of evidence from the DOJ, the DOJ’s Inspector General actually collected around 71,000 more pages of evidence. Chairman Issa believes these evasions impede the development of necessary legislative reforms in light of Fast and Furious, and prevent the delivery of justice to those affected by the program, including Agent Terry’s family.
The report’s findings are very disturbing, and the investigation deserves praise for bringing these details to light.
The DOJ was slow to admitting fault with the program, too many times doing so only when confronted. After the death of the agent, the DOJ initially denied any wrongdoing. It took almost 10 months for the DOJ to rescind that determination, admitting that Fast and Furious was “fundamentally flawed” (memo, pp. 1–2). The report explains that whistleblowers provided most of the information, which was then used to confront those who were involved in Fast and Furious (memo, p. 7). Instead of helping investigators, “the Department has issued false denials, given answers intended to misdirect investigators, sought to intimidate witnesses, unlawfully withheld subpoenaed documents, and waited to be confronted with indisputable evidence before acknowledging uncomfortable facts” (memo, p. 9).
The DOJ, despite claiming that privilege protects certain documents, likely did not make a good-faith effort to help the investigation.It stretches credibility to believe that almost 90 percent of the documents disclosed to the inspector general were truly privileged and could not be protected with commonly employed means of securing sensitive information. The DOJ has not even filled out a privilege log detailing why they are withholding documents, which would at least provide a starting point to evaluate their claims (memo, p. 9).
Chairman Issa believes that part of this stonewalling may be to protect DOJ employees, including those who retaliated against whistleblowers of the program (memo, p. 14). He explains that “Senator Chuck Grassley asked Attorney General Holder to reveal the identity of a Justice Department official who had been caught participating in the leaking of documents to smear an ATF whistleblower. Instead of naming the official at the hearing, Holder decided to protect his identity and refused to answer the question” (memo, p. 14).
The DOJ’s response to Fast and Furious is just oneofmanyreasons to question Eric Holder’s judgment as our nation’s top law-enforcement official. Hopefully, General Holder will cooperate with the Oversight Committee, and help Chairman Issa and Senator Grassley bring those responsible for the Fast and Furious debacle to justice.
1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.
2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.
You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just fill out the form below. If you do sign up, you’ll receive an e-mail asking you to confirm. Please note that your e-mail address will not be visible to other folks on the list and that I will make no other use of your e-mail address. Also, it should be a simple matter for you to remove yourself from the list any time you want.
