On Slate, Jillian Keenan argues, “We need to legalize polygamy, too”:

Legalized polygamy in the United States is the constitutional, feminist, and sex-positive choice. More importantly, it would actually help protect, empower, and strengthen women, children, and families.…

The definition of marriage is plastic. Just like heterosexual marriage is no better or worse than homosexual marriage, marriage between two consenting adults is not inherently more or less “correct” than marriage among three (or four, or six) consenting adults. Though polygamists are a minority—a tiny minority, in fact—freedom has no value unless it extends to even the smallest and most marginalized groups among us.

From those who make arguments in favor of a constitutional right to same-sex marriage, I’ve never heard a convincing explanation why those arguments wouldn’t also compel recognition of a constitutional right to polyamory. (See, for example, Ted Olson’s feeble answer to Justice Sotomayor’s question at oral argument.) Yes, of course, there would be some administrative complications in, say, prorating spousal benefits. But for those who regard polyamory as essential to their happiness, those minor complications could hardly justify denying what the Prop 8 plaintiffs vaporously describe as “a right … that is central for all individuals’ liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one’s place in society; and an expression of love, emotional support, public commitment, and social status” (emphasis in original).

The only minor flaw that I see in the “slippery slope” argument is that polyamory may well be upslope of same-sex marriage. By contrast to the novelty of same-sex marriage, polyamory—or at least its polygamous version (one husband, more than one wife)—has a long history. Within the broader tradition of marriage, insisting on the difference between two and three (or two and seven) is surely more arbitrary than recognizing the difference between a male-female union and a same-sex union.

If the Supreme Court were to hold that Prop 8 proponents lack standing to defend Prop 8, the two rulings against Prop 8 below—Judge Reinhardt’s ruling for the Ninth Circuit and then-Judge Vaughn Walker’s district-court ruling—should both be vacated. So explains law professor (and former Blackmun clerk) Vikram David Amar, cogently elaborating the position that he has previously taken (and that I have also raised). As Amar puts it:

To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask: If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Instead, Amar explains, the four named plaintiffs would then have the option to “seek and obtain a victory through a device known as a ‘default judgment.’”

Amar also sets forth his “reason for doubting [Prop 8 proponents’] standing”:

when voters in California passed Proposition 8 in 2008, they could not have in any way be said to have knowingly appointed the sponsors as their agents to represent the State in the event that the Attorney General and Governor fail (as they did, in fact, fail) to defend the enactment if and when it was challenged in federal court.

But (as I have explained in spelling out why Prop 8 proponents have standing) the California supreme court, as the authoritative interpreter of state law, has opined that “it is essential to the integrity of the initiative process” that “the official proponents of an initiative (in light of their unique relationship to the initiative measure under [California law])” be able to “assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so.” To be sure, it said so in those terms only after Prop 8 was enacted. But it was relying on established principles and was certainly not purporting to change what state law had been. So I don’t see on what basis the U.S. Supreme Court could find that voters in California, by adopting Prop 8, hadn’t selected Prop 8 proponents to assert the state’s interest in Prop 8 in the event that state officials declined to do so. (In an earlier and fuller account of his position, Amar calls for the federal courts to have standing turn on whether “the conferral of power to defend on proponents is clearly provided for in state law” (emphasis in original). That standard, even if it were workable, strikes me as illegitimate: what federal basis is there for micromanaging state law on this matter?)

For ample reasons, President Obama’s nomination of Thomas Perez to be Secretary of Labor has generated lots of controversy.

I’ll add another reason: Perez, in his current capacity as Assistant Attorney General for Civil Rights in the Justice Department, signed on to the Obama administration’s brief in the Hosanna-Tabor case, a brief that was remarkably hostile to the religious-liberty right of churches and other religious organizations to select their own faith leaders. The Supreme Court unanimously rejected the administration’s “remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers” and that religious organizations are instead limited to the right to freedom of association that labor unions and social clubs enjoy. It understatedly observed that the administration’s position “is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”

I would submit, at least as a good working rule, that anyone who put his name on the administration’s irresponsible brief ought to be presumed ineligible for advancement. 

1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit. Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’” But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.” Cook nicely summarizes the broader problem with judicial activism: “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”

Kudos to Democratic political commentator (and former Clinton administration official) Kirsten Powers for her USA Today column condemning the “disgrace” of the “deafening silence” of the media on the horrific “headline-worthy testimony” in the murder trial of Philadelphia abortionist Kermit Gosnell. As Powers points out:

[W]hether Gosnell was killing the infants one second after they left the womb instead of partially inside or completely inside the womb — as in a routine late-term abortion — is merely a matter of geography. That one is murder and the other is a legal procedure is morally irreconcilable.

Gosnell is consistent in regarding in utero babies and ex utero newborns as of equal moral worth—and consistently wrong in believing that, with the nicety of the consent of the baby’s mother, he may kill them. It is those people who support our broader abortion culture, but who draw an arbitrary line at birth, who are morally schizophrenic. (Yes, I realize that perhaps we should be a tad thankful for their schizophrenia, for many or most of them, if forced to be consistent, might well opt for Gosnell’s consistency. After all, isn’t opposition to infanticide ultimately rooted in religious convictions about the inherent dignity of every human life?)

There’s much more on the Corner on this very revealing episode, including Shannen Coffin’s “Kermit Gosnell Is Not an Outlier” and Jonah Goldberg’s opening excerpt from the grand-jury report, the first paragraph of which I reproduce here:

This case is about a doctor who killed babies and endangered women. What we mean is that he regularly and illegally delivered live, viable, babies in the third trimester of pregnancy – and then murdered these newborns by severing their spinal cords with scissors. The medical practice by which he carried out this business was a filthy fraud in which he overdosed his patients with dangerous drugs, spread venereal disease among them with infected instruments, perforated their wombs and bowels – and, on at least two occasions, caused their deaths. Over the years, many people came to know that something was going on here. But no one put a stop to it.

Update: Read, if you dare to, this powerful Atlantic piece by Conor Friedersdorf, “Why Dr. Kermit Gosnell’s Trial Should Be a Front-Page Story.”

1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

Nearly everyone seems to assume that, if she gets past the standing/jurisdiction issues to reach the merits, Justice Elena Kagan will vote to strike down the federal Defense of Marriage Act and California’s Proposition 8. Somehow clinging to a naïve faith in the power of reason, I continue to hold out a tiny (okay—a very, very tiny) hope that she, and all of the other justices, will instead recognize that DOMA and Prop 8 are constitutionally permissible—that it is legitimate for the federal government in its realm and for the state governments in their realms to maintain the perennial definition of marriage as a male-female union.

Indulging my more robust cynicism, I offer these observations about Kagan and same-sex marriage:

1. In February 2009, when the Senate Judiciary Committee was considering her nomination to be Solicitor General, Senator Cornyn submitted to Kagan this written question: “Do you believe that there is a federal constitutional right to same-sex marriage?”

Kagan’s full written response: “There is no federal constitutional right to same-sex marriage.”

As I suspected at the time and spelled out more fully later, Kagan was trying to bamboozle Cornyn and others who read her response into thinking that Kagan was expressing her view that the Constitution does not confer a right to same-sex marriage. But when pressed to clarify, Kagan stated (in a March 18, 2009 letter to Senator Specter, at pages 11-12 (second document here)):

I previously answered this question briefly, but (I had hoped) clearly, saying that “[t]here is no federal constitutional right to same-sex marriage.” I meant for this statement to bear its natural [!] meaning. Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

When President Obama nominated Kagan to the Supreme Court just over a year later, various major newspapers and supporters of Kagan quoted only her initial statement that “There is no federal constitutional right to same-sex marriage”—thus giving the false appearance that Kagan was much more moderate than her critics charged. In short, Kagan’s bamboozling worked.

2. Also in connection with her SG confirmation hearing, Kagan was asked (in writing) whether she, as Solicitor General, would defend the constitutionality of DOMA. She responded that she “would apply the same standard to defending the Defense of Marriage Act … as to any other legislation: I would defend [it] if there is any reasonable basis to do so…. [T]his is a very low bar for a statute to climb over.” More generally, Kagan emphasized in her opening statement at that hearing the “critical responsibilities” that the Solicitor General owes to Congress, “most notably the vigorous defense of the statutes of this country against constitutional attack.” (Emphasis added.)

But as I have documented, far from vigorously defending DOMA, Kagan was instead complicit in the Obama administration’s sabotaging of its duty to defend DOMA (a sabotaging that preceded its formal abandonment of its duty). Specifically, the Obama administration gratuitously volunteered in briefs in cases challenging DOMA that “this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal,” and it made explicit that it was defending DOMA only because DOJ “has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality.” Further, DOJ gratuitously abandoned the very grounds for defending DOMA that had previously succeeded and that were most likely to succeed, as it asserted that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” 

As the Volokh Conspiracy’s Dale Carpenter, an ardent proponent of same-sex marriage, put it (emphasis added):

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

Now Kagan may well be providing the dispositive fifth vote to deliver the Obama administration an undeserved victory in its attack on the law that it was dutybound to defend. So much for justice.

Conventional thinking in the legal academy holds that the Supreme Court’s 1967 ruling in Loving v. Virginia, striking down laws against interracial marriage, can’t be reconciled with an originalist reading of the 14th Amendment. In “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,” University of Dallas professor of politics David Upham contests that conventional thinking. Here is his summary of his paper:

This study considers substantial historical evidence, much of which has not been addressed by contemporary legal scholars, and challenges the widespread belief that the authors of the Fourteenth Amendment did not expect it would adversely affect “anti-miscegenation” (or racial-endogamy) laws.

This study proves, by a strong preponderance of the evidence, that the Fourteenth Amendment, as understood by the officials that proposed, ratified, and initially interpreted it, precluded the making or enforcing of racial-endogamy laws, insofar as such laws prohibited or invalidated interracial marriages between citizens of the United States.

In particular, this study concludes: (1) that before the Fourteenth Amendment, most authorities agreed that racial-endogamy laws abridged a pre-existing, common-law right, which right represented a privilege of citizenship; (2) that during the adoption of the Amendment, both proponents and opponents generally declared, acknowledged, or conspicuously failed to deny, that the Amendment would invalidate such laws; (3) that within five years of the Amendments’ adoption, on the eve of the Slaughter-House Cases, such laws were either non-existent or unenforced in a clear majority of the states, in large part because Republican officials — including nearly every Republican judge to face the question — concluded that African Americans’ entitlement to the status and privileges of citizenship precluded the making or enforcing of such laws; and (4) that the contrary holdings were made by Democratic judges hostile to Reconstruction, whose hostility was manifest in their implausible interpretation of the Amendment. The study ends with a reflection on how the Slaughter-House Cases facilitated the rejection of the original understanding, and thus the partial nullification of the Fourteenth Amendment through the renewed making and enforcing of racial-endogamy laws.

(I haven’t had time to study Upham’s paper, and am in no position to offer a bottom line on its conclusions, but it certainly ought to warrant careful consideration by those who have argued or assumed the opposite.)

The Senate Judiciary Committee held a hearing to consider the nomination of deputy Solicitor General Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit today.  After some sparring over whether Republicans or Democrats have been more obstructionist of the other party’s nominees, the hearing became something of a “lovefest” according to news reports.  According to the Washington Post, at least one GOP Senator — Orrin Hatch — expressed his intent to support Srinivasan’s confirmation.

I look back at Judge Bork’s great book for the Claremont Review.

The views advocated in Tempting have run into two major types of criticism on the Right. Libertarians have attacked what they view as Bork’s majoritarianism, and it is surely true that his jurisprudence would leave voters and legislatures freer to pass the laws they choose than libertarians would like. . . .

Another line of criticism treats Bork as a moral relativist. . . .

Harvard Law School’s chapter of the Federalist Society recently hosted a conference on the topic of intellectual diversity in law schools. 

The first panel addressed the question of whether there is a lack of diversity. Professor Mark Tushnet of HLS was the only panelist at the conference who definitively denied that there is such problem. In a comment that was discussed throughout the rest of the day, he argued that a student so concerned about being around other conservatives could opt for Pepperdine over Harvard. 

Professor Tushnet initially limited his argument to contending that such a student would be happy because he could be in the middle of the class at Harvard Law but at the top of the class at Pepperdine Law, but he later broadened the point, arguing that diversity within a given institution is less of a concern if there is diversity across institutions. 

There are two responses to Professor Tushnet: First, it seems disingenuous just to assert that things would be fair because a conservative student or prospective faculty member can just go to Pepperdine. Pepperdine is a great school with excellent students and faculty, but it also doesn’t have six justices on the Supreme Court and it didn’t produce both candidates in the most recent presidential election. 

Even if liberals and conservatives split up the schools evenly, such that, say, liberals had Harvard while conservatives had Yale and so on, a second problem would remain. Professor Robert George of Princeton and Harvard Law argued on a later panel that liberals can’t represent conservative views as well as conservatives can, and vice versa. With no internal diversity of intellectual views, students won’t really learn conservative arguments (and or liberal ones, at conservative institutions), which harms all students because their positions are never tested and sharpened. Diversity across institutions would thus only ensure that conservatives are just as oblivious to opposing arguments as liberals are. 

There were countless other good exchanges during the conference, and I encourage anyone interested to check out the videos of the panels posted here. 

Excellent discussion here by Professor Michael Rappaport.  The bottom line (quoting the abstract):  “In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution.”  I came to a similar conclusion, but without the impressive scholarship, here.

Today the Senate confirmed magistrate judge Patty Shwartz to a seat on the U.S. Court of Appeals for the Third Circuit.  The vote was 64-34.  BLT covers the vote here.  The usual folks have complained that it took too long for the Senate to confirm Judge Shwartz, and have blamed Republican obstruction.  Yet as noted here, here, and here, Democratic Senator Robert Menendez was initially responsible for holding up her confirmation.

The “empathy” statement by President Obama that James Christopherson quotes is much more tepid, or at least much more vague (and therefore much easier to try to explain away), than some of Obama’s other statements. Anyone criticizing Obama’s “empathy” standard should focus attention on those other statements.

I will seek . . . someone who understands justice and isn’t about some abstract legal theory or footnote in a case book . . . I view that quality of empathy of understanding and identifying what people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.

— President Barack Obama, May 2009

When announcing criteria for his first nomination to the Supreme Court, President Obama offered his personal litmus test for judicial nominees, now commonly known as the “empathy standard.”

Senators immediately recognized that this standard promotes judges who rely on widely varying personal views to reach subjective, and thus uneven, interpretations of the United States’ laws. Such a standard directly contradicts the traditional American expectation of impartial judges seeking to guarantee equality under the law, independent of their personal preferences.

Widespread criticism of this wrong-headed philosophy on the role of judges forced the president to back down from his initial statements, and he has not reaffirmed his “empathy standard” even once in the four years since his first Supreme Court nomination. In fact, when facing questions during their Senate confirmation hearings, both of the president’s Supreme Court nominees (Elena Kagan and Sonia Sotomayor) publicly disowned the president’s empathy standard.

Yet the record of President Obama’s judicial nominees continues to tell a different story.

Judge Robert Chatigny, Obama’s 2010 nominee to the Second Circuit Court of Appeals, once stated in a speech at an American Constitution Society event that “empathy for individuals involved in a case inevitably comes into play, as it should.” Chatigny was strongly criticized throughout his confirmation hearings for a variety of cases in which his “empathy” for convicted murderers and rapists inspired him to passionately defend these violent criminals as the presiding judge in their trials or sentencing.

The president’s nominee for the Northern District of California, Edward Chen, also faced significant opposition over a variety of positions he held during his career as an ACLU lawyer, including the articulation of his own empathy standard — that the “ethnic and racial background” of judges plays a key role in how they ought to apply the law.

The most recent example of this trend is President Obama’s nominee to the Federal District Court of Oregon, Michael McShane. McShane’s work as a judge in Portland, Ore., raises numerous red flags about whether McShane would exhibit partiality in the federal courtroom, and whether McShane would prioritize empathy over the proper role of a judge. One such example is a case in which McShane, as a sitting judge, drove a convicted drug offender to a treatment facility after personally telling him to “not show up clean.” McShane tried to downplay the possibility that he’d committed an ethical violation, saying he was not actually instructing the man to break the law. “I wasn’t telling him to go get high, but it is an odd conversation to have,” he explained. Ironically, in the same interview, McShane said that, as a judge, “once you step in, you’re committed emotionally, whether you want to be or not.”

McShane’s nomination was reviewed by the Senate Judiciary Committee last month, and is expected to receive a vote before the full Senate in the near future. As with President Obama’s other judicial nominees, Senate Republicans are not expected to filibuster the appointment. However, McShane’s record deserves at least a careful review by any senator who understands that judges must be unbiased and beholden to the laws, rather than their own empathetic views.

The value of “empathy” as the primary criterion for selecting judges must be eradicated, as should the practical application of that value, which usually means emphasizing race, sexual preference, gender, and political affiliation over basic qualifications and standards. So long as this subversive trend continues, President Obama’s judicial nominees should receive a heightened level of scrutiny from senators.

With the possibility of additional Supreme Court nominations in President Obama’s second term, he must square with the Senate and the American people about his view of a judge’s proper role.

— James Christophersen is executive director of Judicial Action Group, and has worked on judicial-nomination projects since 2005.

2001—A Ninth Circuit panel, in an opinion by Stephen Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments. The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public. The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent). The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive. In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate. 

This house editorial in yesterday’s New York Times, titled “Courts Without Judges,” reflects the NYT editorial board’s usual one-sidedness and selective amnesia: Obama’s judicial nominees, we’re told, are “decidedly moderate.” That “was not always true of the Bush judicial choices that the Democrats felt compelled to filibuster.” (The poor Dems—forced to act against their nobler instincts.) “Neither party should be in the business of obstructing judicial nominees” (gee, why didn’t you say so during the Bush 43 presidency?) “unless they are unqualified or unacceptably extreme” (labels that NYT will fling against any conservative judicial nominees). And so on.

Two points about NYT’s statistics:

1. The editorial asserts near the top that “the most important cause” of 85 existing judicial vacancies is “the determination of Senate Republicans, for reasons of politics, ideology and spite, to confirm as few of President Obama’s judicial choices as possible.” Only in the second-to-last paragraph does the reader learn that “62 district and circuit court vacancies have no nominees.” It would seem that the most important cause of 62 of the 85 vacancies is that President Obama hasn’t made any nominations.

2. The editorial and accompanying graphic uses the odd measure of “[a]verage wait for nominees from committee approval to confirmation”—instead of the much more sensible benchmark of overall time from nomination to final Senate action—in order to give the false impression (see point 2 here) that Obama nominees are faring worse than Bush 43’s.

That’s the title of a two-day conference in which I will take part at Utah Valley University, in Orem, tomorrow and Wednesday.  Sponsored by the Center for Constitutional Studies and hosted by CCS director Rick Griffin and UVU president Matthew Holland, the conference features former Utah governor and U.S. HHS secretary Michael Leavitt, and scholars Noah Feldman, Randall Balmer, Vincent Phillip Muñoz, Mark Rienzi, Jonathan Turley, Daniel Dreisbach, and yours truly.  The conference is open to the public, so if you are in Orem, Provo, or the Salt Lake City area, come on over.

2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph. In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) unanimously reverses the Ninth Circuit.

1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material. Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment. Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Yep, that carefully captures what viewing obscenity is all about. (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)