1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court. His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history. As one of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Also from Lazarus: “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)

Ryan Koopmans of Iowa’s Appellate Blog has an interesting report on how Iowa’s highest court has defied common sense in a case involving a bar fight:

Bar Patron A taunts Bar Patron B, but B doesn’t respond in kind. The bar owner, wanting to avoid a fight, kicks A out of the bar, but B, who had remained calm during this entire time, goes out to the parking lot and assaults A. Is the bar liable to A (the initial aggressor) for his injuries? Maybe, according to a four-justice majority of the Iowa Supreme Court.

Read the whole piece.

I don’t think so.

President Obama got attention yesterday when he referred to California attorney general Kamala Harris as the “best looking attorney general.” Obama isn’t the first politician to take note of Harris’s appearance. As this San Francisco Chronicle article reports, Harris began dating California power broker Willie Brown, then speaker of the state assembly, in 1994 (when she was 29 and he was 60):

During their two-year relationship, he appointed her to well-paying jobs on the state Unemployment Insurance Appeals Board and the California Medical Assistance Commission— positions that were no mere sinecures, she said at the time, but required real work.

More detail from this San Francisco Weekly article from 2003:

Aside from handing her an expensive BMW, Brown appointed her to two patronage positions in state government that paid handsomely — more than $400,000 over five years. In 1994, she took a six-month leave of absence from her Alameda County job to join the Unemployment Insurance Appeals Board. Brown then appointed her to the California Medical Assistance Commission, where she served until 1998, attending two meetings a month for a $99,000 annual salary.

As I’ve noted before, Harris has no judicial experience and offers zero evidence of being an intellectual heavyweight. The fact that she is even being mentioned as a possible Supreme Court candidate is a damning testament to how many on the Left elevate diversity considerations (her father is African-American and her mother is South Asian) at the expense of quality.

Another point to add to my original post:

The Washington Times article also gullibly presents law professor Carl Tobias’s claim that sequestration somehow makes it “even more urgent to get the judges confirmed”:

Mr. Tobias said the judicial vacancies — nearly 10 percent of federal judgeships nationwide are open — are being exacerbated by automatic budget cuts, known as “sequestration,” that are trimming other court personnel.

“It’s even more urgent to get the judges confirmed,” Mr. Tobias said. “Sequester takes more resources away from the courts. It just puts more pressure on everybody in the system.”

Tobias has a recent history—since January 2009 or so—of finding that virtually everything provides an urgent reason to confirm more judges. (Okay, I’m exaggerating a bit.) But, unless the funds for judicial salaries and benefits are in a separate pool from the overall funds for judicial administration—and one expert I’ve consulted tells me they’re not—the effect of confirming more judges, and of paying more overall in judicial salaries and benefits, would be to exacerbate the effect that sequestration is having on other court personnel. In other words, Tobias’s argument ought to cut against confirming more judges.

A conference on “Intellectual Diversity and the Legal Academy” is being held this afternoon at Harvard Law School. Information on the three panels, which seem to offer some genuine intellectual diversity, and keynote address is here. (Videos of the proceedings will be available later at that same link.)

The conference is jointly sponsored by the law school’s Federalist Society chapter and its Milbank Tweed Conference Fund.

To see how the White House is spinning President Obama’s Keystone Kops escapades on D.C. Circuit nominations, take a look at this Washington Times (yes, Times!) article. Some quick comments:

1. The article states in its second sentence that Senate Republicans are “pitching a shutout with Mr. Obama’s nominees” to the D.C. Circuit. A bit later, it refers to the recent withdrawal of Caitlin Halligan’s nomination as “Mr. Obama’s latest setback at filling this court.”

An intelligent reader might infer from these passages that Senate Republicans have been defeating nominee after nominee. But in fact Halligan is the first D.C. Circuit nominee that Republicans have defeated. In other words, Obama is only 0 for 1 so far. (Paragraphs later, the attentive reader would learn that Obama has nominated only two candidates to the court.)

Obama went nearly two years without nominating anyone to the D.C. Circuit, and Halligan is the only nominee to have gone through the Democrat-controlled hearing process. Obama did nominate Sri Srinivasan last June—without going through the usual procedure of first receiving the ABA judicial-evaluation committee’s rating of Srinivasan—but everyone understood that that mid-election year nomination wouldn’t be acted on, and Senate Judiciary Committee chairman Patrick Leahy never even scheduled a hearing on it.

2. The article states:

The Senate has confirmed nine judges this year, and a White House official said these nine judges waited 144 days on average for a floor vote. President George W. Bush’s nominees, by contrast, waited an average of 34 days for a floor vote at the same point in his presidency.

a. A reader might imagine that the reporter is making an intelligent apples-to-apples comparison. But in 2005—the first year of President Bush’s second term—the Senate hadn’t confirmed any of Bush’s nominees by this date. (It of course had confirmed nominees in previous years.)

b. I don’t know where the “average of 34 days” comes from. This Congressional Research Service report states (in Table 1 on pages 26-27) that the average (mean) number of days from nomination to confirmation was 171 days for Bush’s district-court nominees from 2001 through 2006 and 366 days for Bush’s circuit-court nominees during that period.

Perhaps the reporter is unwittingly using the time from committee approval of a nominee to the time of a Senate floor vote (and perhaps he’s also using that for the Obama nominees—I don’t have the time to look into it). In any event, the far more meaningful measure is the overall time to confirmation.

c. Let’s take a look at the first nine Bush nominees that the Senate confirmed in 2005 (again, none by the beginning of April):

Janice Rogers Brown’s path to confirmation (from initial nomination) took nearly 23 months.

Robert Conrad’s took a full two years.

Paul Crotty’s took seven months.

For James Dever and Richard Griffin, nearly three years each.

For David McKeague, some 3-1/2 years.

Priscilla Owen’s confirmation took four years.

William Pryor’s took more than two years.

And Michael Seabright’s took more than seven months.

Would the Obama White House really like to compare the treatment of its nominees to the treatment of Bush 43’s?

3. The article quotes White House press secretary Jay Carney as asserting that the workload of the D.C. Circuit “has increased by over 20 percent since 2005.” I don’t know what statistics Carney is molesting. As I’ve pointed out before, according to the official United States Courts statistics, the total number of pending appeals in the D.C. Circuit as of September 2005 was 1,463, and the total number as of September 2012 was 1,315. That would be a decrease of just over 10%. (As the linked pages show, the number of cases filed also decreased substantially—more than 14%—from the 12-month period ending Sept. 30, 2005 to the 12-month period ending Sept. 30, 2012.)

(As always, if I have made any mistakes in quickly compiling this data, please call them to my attention so that I can correct them.)

Wisconsin held some important judicial elections on Tuesday. It was the “Left’s Last Hurrah,” their final chance for quite a few years to block Governor Walker’s reform agenda by placing ideological allies on the state’s courts. As the Wall Street Journal’s Collin Levy explained:

The fight ended with a squeak yesterday as conservative Wisconsin Supreme Court Justice Patience Roggensack handily defeated union-backed candidate and Marquette University law professor Ed Fallone, with some 57% of the vote.

The vote means conservatives retain 4-3 control of the Wisconsin Supreme Court. The next two justices up for reelection on the court will be from its liberal wing, which means that after yesterday’s win conservatives are likely to maintain or extend their majority for years to come. That’s a blow to unions who were hoping that they could secure a liberal majority that would be more receptive to an upcoming appeal of a Dane County case charging Mr. Walker’s union reforms are unconstitutional because they exempted police and firefighters. . . .

Conservatives also won two other judicial elections in Wisconsin yesterday in Ozaukee and Milwaukee counties. In Ozaukee, voters refused to reelect liberal incumbent Tom Wolfgram in part because of his signature on a petition to recall Gov. Walker. In Milwaukee, conservative County Circuit Judge Rebecca Bradley won despite her challenger’s attempt to tag her as a flunkie of the governor. That’s particularly noteworthy in Milwaukee County, which has traditionally been a union stronghold.

Rebecca Bradley’s victory in Milwaukee County is especially notable given that she openly campaigned as a former chapter president of the Federalist Society in a county that Obama carried with 67 percent of the vote in 2012.

Congratulations to Justice Roggensack, Judge Bradley, and Mr. Voiland on their victories.

1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote. On the Court from 1939 until 1975, Douglas is the longest-serving justice in history.

In his 2003 New Republic review of a biography of Douglas (Wild Bill: The Legend and Life of William O. Douglas, by Bruce Allen Murphy), Seventh Circuit judge Richard A. Posner offers this succinct summary of Douglas’s judicial career: “For Douglas, law was merely politics.” Here’s Posner’s colorful fuller assessment: “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge—who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.”

As Posner acknowledges, one can, of course, “be a bad person and a good judge, just as one can be a good person and a bad judge.” By the evidence, Douglas was both a terrible person and a terrible judge.

The New York Times upbraids Justice Ruth Bader Ginsburg in an editorial today.  The editors are concerned about remarks Ginsburg has made that are

critical of the court’s 1973 Roe v. Wade decision that legalized abortion nationwide. It is not the judgment that was wrong, but “it moved too far, too fast,” she said at Columbia Law School last year, a view she has expressed in various speeches and law review articles. As one of the court’s moderate liberals and a champion of women’s rights, she is now being routinely cited to argue for a timid resolution on the issue of same-sex marriage that would strike down California’s ban on such marriages, but would leave prohibitions standing in about 40 other states.

The Times is concerned that Ginsburg has contributed to what it claims is a false story of “backlash” against Roe that might have been avoided if the Court had taken more of a “go slow” approach in 1973.  The editors make claims about the state of things in the 1970s–whether and why the pro-abortion movement was stalling out before Roe, and whether, how soon, and how much there was a “backlash” against the ruling–that I will leave to historians and other close students of these things like Michael New and Ramesh Ponnuru.

But I have to say (and never thought I would say) that I am completely in agreement with the Times about the role of principle in Supreme Court decisions: “fear of an angry reaction from some groups cannot be the reason to deny people basic rights.”  Exactly right.  First and last and in between, we must know, what are people’s basic rights?  If we have answered that question, no question of the political fallout for vindicating those rights–or for ruling that they are not “rights” at all, if that is the correct legal conclusion–should intrude on judicial decision-making.

What has always been rather disturbing about Justice Ginsburg’s repeated comments on the politics of Roe is the fact that she is commenting on the politics of Roe!  This habit of hers bespeaks an attitude toward law itself, and the Constitution as the supreme law, that treats it as instrumental to the advancement of ideological projects.  “What will help advance a political agenda?” and “What will hinder it?” and “What might seem like a gain but could cause a backlash?” are not even remotely the sorts of questions with which judges ought to concern themselves.  Yet these are the sorts of questions that seem to interest Justice Ginsburg when she discusses the Roe decision.

At the Times, of course, the editors are full-tilt ideologues in search of results from the Court.  It is hard to believe that they believe there are any enduring principles of the Constitution that are not simply identical with the current fashions of coastal liberalism.  But in their eagerness to advance the ludicrously implausible cause of a constitutional “right” to same-sex marriage, they have stumbled blindly over the rock of legal principle, and dimly perceived what they have barked their shin against.

2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators. Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.” In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.” Conrad’s nomination will expire months later without his ever receiving a hearing.

2009—The lawless judicial attack on traditional marriage and on representative government continues, as the Iowa supreme court rules unanimously (in Varnum v. Brien) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.”

Central to the court’s ruling is its assertion that “equal protection can only be defined by the standards of each generation.” An intelligent citizen not attuned to the deceptive rhetoric of living-constitutionalist judges would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation of Iowans reflected in the statute that Iowa adopted in 1998. But what the court really means is that each generation of judges is free to expand the meaning of equal protection according to its own subjective standards—and to shrink the realm of representative government. Or, as the court puts it in activist gobbledygook:

The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.

On April 10 the Senate Judiciary Committee will hold a hearing on D.C. Circuit nominee Sri Srinivasan, BLT reports.  The award-winning Srinivasan is currently serving as deputy solicitor general and has picked a fair amount of bipartisan support among SG alums.  Some GOP Senators have questioned his role in helping deep-six a Supreme Court case the Obama Justice Department did not want to face.

Law professors G. Alan Tarr and Brian Fitzpatrick had an excellent USA Today op-ed on state judicial selection on Friday:

Why are people increasingly disenchanted with the Missouri Plan? One reason is that it has not delivered on its promises. Supporters insist that a commission of “experts” is less political and can pick better judges than voters or public officials. But scholars have found no evidence that these lawyer commissions ignore politics or pick better judges. Another reason is the lack of public accountability. If a judge is incompetent or corrupt or doesn’t follow the law, what can citizens do? It is virtually impossible to defeat incumbent judges during retention votes because they have no opponents. It is also difficult to change who gets selected as a judge in the first place because so many commission members are selected by the bar rather than by voters or their elected representatives.

Professors Tarr and Fitzpatrick encourage states to follow in the footsteps of Kansas, Tennessee, and Oklahoma, which are embracing modified versions of the federal method of selection:

Sometimes the best solution to a problem is the one that has been in front of you all along. So it is here: we believe states ought to follow the lead of Tennessee and Kansas and return to the system in the U.S. Constitution.

Why? Because it enhances the quality of the judiciary and promotes accountability. Federal judges are nominated by the president and confirmed by the Senate and this division of responsibility, as Alexander Hamilton noted, “prevent(s) the appointment of unfit characters.” In addition, because those choosing the judges are elected officials, if the public does not like their choices, it can elect new officials. The system makes judges accountable to the citizenry, not the bar.

Unfortunately, as the Wall Street Journal pointed out today, the George Soros–funded group Justice at Stake is pushing for Pennsylvania to adopt the Missouri Plan for their state courts:

The supposed impetus now is a scandal surrounding the conviction of state Supreme Court Justice Joan Orie Melvin for improperly using court staff to work on an election campaign. She is suspended without pay and has said she will resign May 1. But as with campaign-finance reform, the political class is using a political scandal to grab more power.

The three former Governors—all lawyers—want a 15-member judicial nominating commission under the influence of the state bar. Four members would be selected by the Governor, four by the legislature and seven would be nominated by what the law refers to as “groups” but otherwise doesn’t define. As many as 13 of the 15 would be lawyers.

And it’s not for robo-calling you at 1:00 a.m. She has written a new book, and Adam Liptak thinks it is terrible:

She has a lot to say. But, the provocative title of her new book notwithstanding, she is not saying it here. Instead, she has delivered a disjointed collection of anodyne anecdotes and bar-association bromides about the history of the Supreme Court. “Out of Order” is a gift shop bauble, and its title might as well refer to how disorganized and meandering it is. . . .

O’Connor is fond of the stock phrase and profligate with the exclamation point. She will tell you the same story twice. And she will recount a joke but withhold its meaning. We hear that the court works “in an atmosphere insulated as far as possible from political pressures” and then, some 60 pages later, that it works “in an atmosphere insulated, as far as possible, from political pressures.” Same phrase — but now with commas. We are told three times that Justice John Rutledge resigned from the Supreme Court in order to become Chief Justice of South Carolina.

Ed Whelan has been patiently explaining to all and sundry that the Defense of Marriage Act violates no principle of federalism when it chooses the traditional definition of “marriage” for purposes of federal law. Ed first wrote an NR article that no one has yet refuted, and readers can check Ed’s recent blog posts for his running debate with others, including our co-blogger Jonathan Adler.

The latest wrinkle in this debate concerns the effects of a ruling that DOMA violates some principle of federalism.  Noah Feldman, who supports same-sex marriage, contends that it would produce “legal chaos,” thanks to there being “couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits,” and so forth–prompting waves of new litigation.  To this Ilya Somin replies that he doesn’t “see the problem here. If same-sex couples get married in State A, receive federal marriage benefits, and then move to State B, which denies them state-level marriage benefits, there is no need for litigation of any kind. The couple in question will have federal marriage benefits, but no state ones (at least none from State B).” 

As Ed has pointed out, this argument puts Somin on the record as saying that if DOMA is overturned on federalism grounds, then the federal government is obliged to give federal marriage benefits to same-sex couples in the state of their marriage, and obliged to treat those federal benefits as portable into any other state, remaining intact despite the new domiciliary state not recognizing the marriage.  So a purported “federalism” principle turns out to be the vehicle for nationalizing recognition of same-sex marriage, at least as to federal benefits.  Yes, that’s some federalism.

All this has turned my mind back to one of the most interesting moments in last Wednesday’s oral argument in the Windsor case.  Solicitor General Verrilli had just come to the lectern, and Chief Justice Roberts wanted to know if a kind of “anti-DOMA,” extending federal benefits to all “committed same-sex couples” in every state, regardless of local law on same-sex marriage, would run afoul of federalism.  Verrilli replied that it wouldn’t violate equal protection.  Roberts reiterated that he was asking about whether there was a federalism problem.  Verrilli said there was not.  Roberts then said, “So just to be clear, you don’t think there is a federalism problem with what Congress has done in DOMA?”  Verrilli responded, “We–no, we don’t, Mr. Chief Justice.”

This somewhat surprising response brought Justice Kennedy, and then Justice Kagan, into the fray, joining the chief justice in pressing Verrilli to clarify: was it really the government’s position that DOMA’s section 3 does not run afoul of anything in our federalism?  Justice Kennedy in particular emphasized that the Court first wants to know whether the law is “valid . . . to begin with” as an exercise of congressional power, “before we get to the equal protection analysis.”  The solicitor general gamely (and repetitively) insisted that “apart from the equal protection violation, we don’t think that Section 3 apart from equal protection analysis raises a federalism problem.”  (The entire exchange can be found at pp. 81-84 of the transcript.)

What was interesting about this was that the solicitor general was eschewing a classic kitchen-sink strategy of employing every available and conceivable argument that might win his case.  It’s even an argument that some prominent amici had made, that a former federal judge had endorsed (sort of) in a national newspaper, and that a famous Washington columnist had endorsed as well.  And Verrilli was throwing it away.  Why?

One possibility is that Verrilli, and his colleagues at the Obama DOJ regard the federalism argument against DOMA as fundamentally unsound.  In this they would be correct, and would also be in the rare position of agreeing with the formidable Ed Whelan, among others.  And the chief justice and Justice Alito went on to make short work of this position in oral argument.  Yet the argument, even if hopelessly wrong, has a certain surface plausibility, and Justice Kennedy seemed at least slightly susceptible to it–though he almost certainly has a lower regard for it now, if he really listened both to Verrilli and his colleagues last Wednesday.  If there was an outside chance of persuading Justice Kennedy that DOMA traduces federalism, why not press the point?

I think the answer is that the federalism rationale for undoing DOMA’s section 3 does not produce the automatic chaos that Noah Feldman fears.  Nor does it automatically make every married same-sex couple’s marital status portable across state lines as far as federal benefits are concerned, as Ilya Somin seems to think.  For surely a future conservative administration could decide that the real import of federalism is that the domiciliary state’s law of marriage always defines the federal government’s treatment of every couple claiming to be married.  (Isn’t this precisely the claim of Windsor, after all, whose marriage did not originate in New York but “traveled” there from Canada?)

The Obama Justice Department, I believe, will not be satisfied with the overturning of DOMA’s section 3.  They are going after section 2 as well, in a long game of which the Windsor case is only the beginning.  Especially if Prop 8 survives in the Perry case, the Obama administration wants a ruling against section 3 on equal protection grounds, not federalism grounds.  That sets up section 2 for a fall.

Why?  Because if DOMA’s section 3 is struck down on federalism grounds, then the federal government must recognize same-sex couples as married who live in states that have established or recognized same-sex marriage.  The federal government is not obliged to continue recognizing those marriages if the couples move to a state with no such recognition.  There is a strong case, given Windsor’s factual predicates, that the federal government should not recognize marriages in the latter circumstances.  And there would be no strong case for threatening section 2 of DOMA, which preserves each state’s right of non-recognition of same-sex marriage when couples move in from a state where they were married.

But if the rationale for overturning section 3 is equality, the fallout is quite different.  Assume for a moment that Prop 8 survives the Perry challenge.  Even without declaring a nationwide “right” of same-sex marriage, the Court could decide Windsor on an equal protection basis, saying that the federal government cannot treat two different categories of married couples differently who are “equal” in the eyes of the state where both categories are married, and that this is a form of “irrational animus” against same-sex couples stemming from impermissible anti-gay prejudice.

Then, if such equality is the rationale, a ruling against DOMA’s section 3 will be treated by this administration as compelling the federal government to regard marital status as portable to new states of residence, regardless of local law’s non-recognition of same-sex marriage.  And once a same-sex couple married in New York (for example) moves to Pennsylvania, and is continuously treated as married by the federal government, they will sue Pennsylvania for not treating them as married, citing not only the law of the state where they were married, but their position under federal law–a position supported, and arguably compelled, by an equality-based ruling against section 3 of DOMA.  How long would section 2 last under this bombardment?  Not long.  If the federal government is obliged to treat all New York couples as married because New York says so, and attaches a federal-law status that travels to Pennsylvania, it is quite easy to compel the conclusion that Pennsylvania is violating equality by not recognizing such couples as married, and section 2 of DOMA will provide no shield for the state.  Only if DOMA is understood to have something to do with preserving federalism could Pennsylvania find shelter in a defensibly intact section 2.

So it is very important, from the perspective of the Obama administration, not to have a “federalism” ruling against DOMA’s section 3, because that rationale could actually strengthen states’ claims under section 2 that they need not recognize same-sex marriages contracted elsewhere.  And this administration, in a foreseeable future case, wants to fatally weaken such claims, and topple what remains of the Defense of Marriage Act.  For this, only an equality-based ruling will do.

Of course, there are no good arguments for striking down section 3 of DOMA, either on equality or federalism grounds, and any ruling against it will produce needless mischief that the Act is designed, quite constitutionally, to prevent.  But the Obama administration appears to want a particular kind of mischief, and so prefers the equality argument.  Unlike Ms. Windsor’s counsel, it has no client in the case.  It has only an ideological project of foisting same-sex marriage on the whole country, by hook or by crook.

As Orin Kerr and I did, Nicholas Quinn Rosenkranz weighs in against Randy Barnett’s position that it is somehow unthinkable that “one can be married under federal law and unmarried under state law.” As Rosenkranz, author of the law-review article “Federal Rules of Statutory Interpretation,” explains, “It is, in fact, an utterly commonplace feature of our federalism that the exact same word may mean different things for purposes of state law and federal law.”

Rosenkranz, who, like Kerr, is a former law clerk to Justice Kennedy, also writes:

Justice Kennedy has strong and sure federalism instincts. When he considers the radical and illogical implications of this particular “federalism argument,” which actually turns federalism on its head, I believe he will not [accept the federalism argument against DOMA].

Another former Kennedy clerk, Michael Dorf, in a comment on his own post pondering why Solicitor General Verrilli didn’t embrace the federalism argument against DOMA, agrees that the argument “should fail.”

In an update (#2) appended to his original post, Ilya Somin responds to my critique. I pointed out that Somin escapes the problem that Noah Feldman identifies (highlighted here)—namely, that a ruling against DOMA on federalism grounds would create “legal chaos” and a “nightmarish barrage of new litigation”—only by adopting a perverse understanding of federalism in which a single state, by allowing same-sex marriage, could compel the federal government to provide federal marriage benefits for same-sex marriages in all fifty states.

Somin doesn’t dispute that I have correctly identified the consequences of his position. So at least one of the six signatories to the amicus brief arguing that DOMA violates principles of federalism believes that if DOMA is invalidated on federalism grounds, the federal government (absent additional legislation) wouldn’t be deferring to the definition of marriage of the state in which a couple resides. Rather, under Somin’s view, if a same-sex couple lawfully marries in one state (whether or not it’s their state of residence) and lives or moves to a state that doesn’t recognize same-sex marriage, the federal government would provide federal marriage benefits to the same-sex couple in that state.

In fairness to Somin’s co-signatories, let me highlight that Randy Barnett and Jonathan Adler think he’s wrong that the law of the marrying state, rather than the law of the state of residence, would govern federal marriage benefits.

While I’m at it, let me address some of the points Somin does make:

1. Somin contends: “Deferring to the definition of marriage in force in the state where the marriage was contracted is deferring to the states.” (Emphasis in original.) Well, it’s deferring to some of the states—only the ones that allow same-sex marriage. That’s clearly not the deference that the snookered George Will had in mind when he stated that “[b]y striking down DOMA …, the court would defer to 50 state governments.” Nor is it the deference that Michael McConnell was contemplating when he invoked Somin’s amicus brief in wrongly encouraging the Court to rule that the federal government “lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides.” (Emphasis added.)

2. Somin contends: “If a same-sex couple migrates, the receiving state can still maintain its refusal to recognize SSM” for purposes of state law.” He’s right, of course. But that’s only because of the fundamental principle that he and his co-signatories miss or obscure: that the federal definition of “marriage” for purposes of provisions of federal law doesn’t intrude one bit on a state’s regulation of marriage.

3. Somin contends: “[A]s a practical matter, we are only talking about a small number of cases here. Gays and lesbians are only about 3% of the population and those who enter SSMs in states that permit it and then move to states that don’t are likely to be a tiny fraction of that.” I don’t understand how this “practical” point can excuse the perversity of enabling one state to compel the federal government to confer federal marriage benefits on same-sex couples in states that don’t recognize same-sex marriage.

4. Somin contends that my supposed “claim that allowing couples that entered same-sex marriages to continue receiving federal marriage benefits when they move to a different state interferes with state definitions of marriage just like DOMA does is also weak.” To be clear, my position is that the federal definition of marriage for purposes of federal law doesn’t interfere at all with state definitions of marriage. My point was different:

Whether or not Somin’s position is correct, Somin, by taking it, necessarily acknowledges that it is permissible for federal marriage benefits to apply to those living in a state without tracking that state’s definition of marriage. So much for the federalist argument against DOMA.

5. Somin observes—correctly, I think—that Congress could “choose to condition federal marriage benefits on the law of the domicile state rather than on the law of the state where the marriage was contracted.” (Again, that’s because the federal definition of marriage doesn’t intrude on state authority to regulate marriage.) But he wrongly asserts that his original post “merely assumed the framework outlined in Noah Feldman’s op ed.” It’s because Feldman recognizes that the question is unsettled that he anticipates that a federalism ruling against DOMA would create “legal chaos” and a “nightmarish barrage of new litigation.”

During oral argument before the Supreme Court in the Defense of Marriage Act case last week, Justice Elena Kagan contended that the only purpose for the Defense of Marriage Act was “that Congress’s judgment was infected by dislike, by fear, by animus” of homosexuals. After Paul Clement pointed out that Congress was trying to retain a fairly uniform definition of marriage for federal law purposes in the face of a pending radical change that the Hawaii Supreme Court was about to impose, Justice Kagan challenged Clement’s claim, quoting a sentence from the House Judiciary Committee Report that accompanied the Act to the effect that “Congress decided to reflect and honor the collective moral judgment and to express moral disapproval of homosexuality.” “Is that what happened in 1996?” Kagan asked.

What Kagan failed to acknowledge was that the passage — a single sentence out of a 45-page committee report, was actually and explicitly drawn from the governing Supreme Court precedent at the time, Bowers v. Hardwick, which had held that Georgia’s law criminalizing sodomy was constitutional because it served the rational purpose of embodying “the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable”). The Supreme Court subsequently overruled Bowers, holding that the majority’s view of the immorality of a practice “is not a sufficient reason for upholding a law prohibiting the practice,” meaning that Supreme Court precedent now rejects that particular rationale for the statute. But Justice Kagan also failed to acknowledge it was but one of several rationales, not even the first, and certainly not the most developed in the legislative record.

The primary rationale, which relied heavily on the work of Claremont Institute Senior Fellows Hadley Arkes and Bill Bennett, is both profound and persuasive. “The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage,” the report finds. Society recognizes the institution of marriage and grants married persons preferred legal status not to grant public recognition to the love between any two persons, but because of the “central, unimpeachable lesson of human nature” that “our gendered existence, as men and women, offers the most unmistakable, natural signs of the meaning and purpose of sexuality,” which is begetting children. “At its core,” the report concludes (citing Arkes’s testimony), “it is hard to detach marriage from . . . the inescapable fact that only two people, not three, only a man and a woman, can beget a child.” “Civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing.”

Justice Kagan would do well to consider more carefully the rest of the report, available here. Hopefully, her colleagues already have.

— John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence (which filed briefs in both marriage cases), and as chairman of the board of the National Organization for Marriage.

In his “final response” to me in our debate on whether DOMA violates federalism, Jonathan Adler contends that I “elide the central question” and fail to “confront[] the real point of contention.” But what actually divides us, I think, is that we have very different understandings of what the “central question” is.

Jonathan dismisses as “rather trivial” my examples of how federalism doesn’t limit the authority of the federal government to define the terms used for purposes of federal law. But of course it often takes only a trivial example to refute a wrong assertion. (In response, say, to the assertion that all prime numbers are odd, it would be “rather trivial” to point out that the number 2 is both even and a prime.)

As I have shown in two posts, even though property law, like marriage, is a matter of state authority, federalism concerns do not limit the power of Congress to define property interests differently, for purposes of provisions of federal law, than states do. When Congress so acts, it doesn’t regulate property law, just as DOMA doesn’t regulate marriage.

In response, Jonathan agrees that “[o]f course, … the federal government can decide what it will or will not tax as property under the estate tax—and it may use a definition to accomplish this goal,” but he contends that “that is quite different from refusing to recognize property (as defined under state law) as property.” I don’t understand his supposed distinction. In my example, Congress is declining to recognize one type of “property (as defined under state law) as property” for the purposes of the federal estate tax. Congress could equally, in a sweeping definition of “property,” state that automobiles don’t count as property for purposes of any provision of federal law. Some of the particular applications of that definition might create problems under specific provisions of the Constitution (e.g., the Takings Clause); if so, those applications might be invalidated. But Congress’s general definition of “property” would be justified by the same powers that it exercised to enact the underlying substantive provisions that the definition plugs into. So I don’t see how that definition could remotely be said to violate principles of federalism.

As I have shown, exactly the same analysis applies for DOMA. Jonathan contends that “the federal government [does not have] a legitimate federal interest in defining marriage as such.” (Emphasis added.) But the federal government, through DOMA, wasn’t “defining marriage as such”; it was defining marriage for the purposes of provisions of federal law. Further, the fact that DOMA merely codified the definition of marriage as the union of a man and a woman that everyone understood already infused the meaning of the word throughout provisions of federal law amply shows that the definition was (to use Jonathan’s terms) “plainly adapted to the implementation of federal law” and “serve[d] a distinctly federal interest” (or multiple such interests).

I’d like to thank Jonathan for engaging in this back-and-forth, and I’m sorry that my discussion with him will apparently end here.

On Friday, Ed posed some questions to me and Randy Barnett about our position on DOMA.  Randy’s response, which I’m happy to endorse, is here.  Invalidating DOMA would neither nationalize SSM nor create “chaos.”  What it would do is restrain the federal government from further exceeding its proper bounds and leave the question of marriage where it belongs.

In another recent response, Ed continues to elide the central question.  As before, Ed uses rather trivial examples of how the federal government might choose to define various terms for the purposes of federal law without confronting the real point of contention. Of course, as Ed suggests, the federal government can decide what it will or will not tax as property under the estate tax — and it may use a definition to accomplish this goal — but that is quite different from refusing to recognize property (as defined under state law) as property. So, as we noted in our brief, the federal government’s inclusion of an antifraud marriage provision in federal immigration law presents a different question from whether the federal government may refuse to recognize a marriage (as defined under state law) as a marriage.  The antifraud provision is plainly adapted to the implementation of federal law and serves a distinctly federal interest.  Section 3 of DOMA does not.  Similarly, that the IRS looks at whether one was married during the relevant tax year, and not whether one was still married on December 31, tells us nothing about whether the federal government has a legitimate federal interest in defining marriage as such.  

As I noted in this VC post:

The question, again, is not whether Congress adopted a definition of some special term, but the actual effect and intent of the legislative act in question. And while I understand the reluctance to launch open-ended inquiries into legislative pretext, in the case of DOMA, no such inquiry is necessary.  Congress was quite explicit about what it sought to do: “Defend” a traditional definition of marriage against changes adopted under state law. That Congress sought to do this through the adoption of a legal definition is of no import. Congress has no power to pursue such a goal, and there is no distinctly federal interest to invoke in Section 3′s defense.

There are ample state interests that can be invoked to defend a traditional definition of marriage.  For this reason, the defense of Prop 8 should succeed, even if subjected to intermediate scrutiny.  But that there are important state interests that may be marshaled in traditional marriage’s defense does not mean these are cognizable federal interests that may be invoked in DOMA’s defense.

I suspect Ed still disagrees.  If he so chooses, he may have the last word.  Barring meaningful developments, this (and this morning’s VC post) are my last in this debate.

2008—Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat associate justice Louis B. Butler Jr.’s bid to remain on the court and elect Michael Gableman in his place.