Bench Memos

NRO’s home for judicial news and analysis.

Supposed Conservative Opposition to AG Nominee Mukasey


On the Volokh Conspiracy, Ilya Somin soundly critiques a silly essay by Slate’s Dahlia Lithwick.  As Orin Kerr (also of the Volokh Conspiracy) charitably puts it, “Dahlia Lithwick is a very funny writer, but she often leaves behind her normally sharp analytical skills when she writes about conservatives.”

Tags: Whelan

Re: Acting Attorney General Peter Keisler


Some more sharp contrasts to the New York Times’s wild mis-assessment of Keisler:  The Washington Post, in a house editorial on November 17, 2006, stated that Keisler “certainly warrants confirmation” of his D.C. Circuit nomination.  And the Los Angeles Times, in a January 17, 2007, house editorial that encouraged Senate Democrats to display a “cooperative spirit” rather than “obstructionism” and to “forswear knee-jerk opposition to Bush appointees who are within the legal mainstream,” specifically recommended that Senate Democrats confirm Keisler’s D.C. Circuit nomination.

Tags: Whelan


Acting Attorney General Peter Keisler


In announcing his nomination of Michael Mukasey to be Attorney General, President Bush also named Peter Keisler to serve as acting Attorney General.  Keisler, who is widely regarded as one of the very finest attorneys in the country, heads DOJ’s Civil Division and for over a year has had pending his nomination to a judgeship on the D.C. Circuit.  He had recently announced his intention to leave DOJ, but now will be staying on for a while longer. 


Everyone should be grateful for Keisler’s continued service.  Alas, here is how the New York Times’s house editorial on the Mukasey nomination presents the news:


Mr. Bush also announced yesterday that he was replacing Acting Attorney General Paul Clement, who was to serve until the Senate confirmed Mr. Gonzales’s successor, with Peter Keisler, a hard-line movement conservative. Mr. Bush’s sleight of hand in installing Mr. Keisler is an unfortunate indication that he intends to keep the department politicized for as long as he can.


Never mind that there was a public announcement by the President, not a “sleight of hand.”  Never mind that no one who understands DOJ would ever think that a single person could carry out for long both the jobs of Solicitor General and acting Attorney General.  Never mind that there was nothing in the President’s temporary designation of Clement as acting Attorney General that signaled that Clement would remain in that capacity until a new Attorney General was confirmed.


For present purposes, I would instead like to contrast the NYT’s crazy assessment of Keisler as a “hard-line movement conservative” who will “keep the department politicized” with the saner voices of liberals who actually know Keisler.  Here’s a quick sampling of what those saner voices have to say.  (All but the last come in letters supporting Keisler’s D.C. Circuit nomination, but their applicability to his fitness to serve as acting AG is plain.)


Neal Katyal (opposing counsel in the Hamdan case):  Keisler “would be a fabulous judge”; “not an ideologue, but rather a lawyer who took tremendously seriously both his craft and his carefulness.”


Stephen Sachs (former Maryland AG):  Keisler is “especially well qualified to be an outstanding appellate judge”; “judiciousness … marks his values, his conversation, even his advocacy.”


George W. Jones Jr. (self-described “life-long Democrat” and former supervisor of Keisler’s):  Keisler is “easily one of the most talented and hardworking lawyers I have ever had the privilege of working with”; “there was never an instance in which I thought Peter approached any issue or conversation with a closed mind”; “one of the best listeners I know”; “always listened respectfully and with a sincere desire to understand my position”; “rare capacity and instinct to reserve judgment until he has heard and considered all sides of an argument”; “I can think of no one more capable than Peter to sit on the D.C. Circuit.”


Nine “Democrats or Independents” who were law clerks at the same time Keisler clerked (in all but one case working in different chambers):  Keisler is “straightforward, candid, and always respectful”; “the respect Peter so consistently shows for opposing viewpoints is one reason that many of us have become his friends”; he “would decide cases based on the law and facts, rather than his policy preferences.”


David Carpenter (self-described “political liberal” who worked closely with Keisler at Sidley & Austin):  “Peter absolutely epitomizes the kind of lawyer and the kind of person who should be sitting on a federal court of appeals”; “personally and intellectually honest, to the very depths of his bones”; “There have been many occasions in which Peter has refused overtures of others to slant the facts of a case in ways that were favorable to our client and that would, as a practical matter, have been immune from sanction or even detection”; “assiduous in trying to see and fully understand both sides of every issue”; “an extraordinarily fine listener”; “willingness, indeed his eagerness, to listen and to give others a chance to persuade him of a position”; “unfailingly courteous to and respectful of the people with whom he deals”


Virginia Seitz (former Brennan clerk):  “I am utterly and completely confident that he will approach the task of judging with both the desire and the ability to follow the law—that his intellectual and personal integrity will make him a judge without agenda and with a fierce commitment to the ideals of fairness and neutrality so critical to the judicial branch.”


Georgetown law professor Marty Lederman:  “I can vouch that Peter is an attorney of great skill, judgment, integrity and fair-mindedness; I am confident he will make a superlative Acting Attorney General.”

Tags: Whelan

Andy on Mukasey


From Fox News earlier:

Mukasey and Political Asylum


Anxiety among some conservatives about the nomination of Judge Mukasey to be Attorney General rests in part on his 1994 ruling (in Dong v. Slattery) affirming the Board of Immigration Appeals’ denial of political asylum to a Chinese national who feared punishment for helping his wife evade China’s vile “one child” policy (which is implemented in part through coerced abortion).  Andy McCarthy has already explained on The Corner his view that Judge Mukasey’s ruling was legally correct.   

I agree with Andy and will add only that I believe that the result in that case was compelled by Justice Scalia’s 1992 majority opinion in INS v. Elias-Zacarias.  In that case, Scalia explained that in order to show that he faces “persecution on account of … political opinion,” an asylum applicant must show that the persecution would be on account of his political opinion, not the persecutor’s.  Faithfully applying the reasoning of Elias-Zacarias in Dong, Judge Mukasey stated that “the conception and rearing of children is not the inherently political activity whose general prohibition can reasonably be construed as veiled persecution of political opinion.”  (Emphasis added.)   

Bottom line:  China’s one-child policy and its use of coercive abortion are appalling, and I’m glad that the federal laws governing asylum were amended in 1996 to provide refuge to victims of that practice.  But there’s nothing in Judge Mukasey’s faithful application of then-existing asylum law that should lead anyone to infer anything negative about him.  Indeed, in 2006, Judge Mukasey, sitting by designation on a Second Circuit panel (in Bao v. Gonzales), joined an opinion that applied the 1996 amendment in the course of reversing BIA’s denial of an asylum petition.

Tags: Whelan


AG Nominee Mukasey


In his NRO essay from last week (published, appropriately, on 9/11), Andy McCarthy—who knows Judge Michael Mukasey very well—made the affirmative case for Mukasey’s nomination as Attorney General.  Andy also linked to two impressive Wall Street Journal op-eds by Mukasey on the Patriot Act and on broader lessons from the Padilla trial.  All I will add is that my own due-diligence inquiry reinforces Andy’s assessment.  (I won’t discuss the details of my inquiry, so I’ll just have to leave it to readers to credit or dismiss my judgment as they see fit.)   

I reiterate that I am not making any comparative assessment of Mukasey vis-à-vis the other candidates.  The confirmation hearing will of course provide a much fuller picture of the nominee, and it’s certainly possible that my early favorable assessment of the nominee will change.  But I’d be surprised.  

Tags: Whelan

Here’s What the White House Is Sending Around This Morning


Michael Mukasey: A Strong Attorney General

President Bush Nominates Former Federal Judge With Exemplary Background In Law Enforcement

And Issues Of National Security Law To Serve As U.S. Attorney General

Today, President Bush Will Announce His Intention To Nominate Michael B. Mukasey To Serve As America’s 81st Attorney General.  Judge Mukasey – nominated to the Federal bench by President Reagan in 1987 – will bring to this position a lifetime of legal experience and over 18 years of service as a Federal judge.  While on the Federal bench, Judge Mukasey received praise for his thoughtful and fair handling of some of the Nation’s most important and complicated terrorism-related cases, including the trial of 10 defendants accused of plotting terrorist attacks in New York City and Jose Padilla’s challenge to his detention as an enemy combatant. 

Judge Mukasey’s Record Of Rulings In National Security Cases And Experience As A Criminal Prosecutor Make Him Exceptionally Qualified To Serve As Our Nation’s Chief Law Enforcement Officer

Judge Mukasey Was Appointed By President Ronald Reagan To Serve On The United States District Court For The Southern District Of New York, A Position He Held For Over 18 Years.  Judge Mukasey was a strong leader during his six years as Chief Judge of this court, one of the country’s most important and prestigious Federal district courts.  His distinctive service earned him the Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence in 2004 and an honorary degree from Brooklyn Law School in 2002.

Ø      Judge Mukasey Presided Over The 1995 Trial Of 10 Individuals Accused Of Plotting Terrorist Attacks In New York City – Including Omar Abdel Rahman, The “Blind Sheikh” Involved In Planning The 1993 World Trade Center Bombing.  Judge Mukasey sentenced Rahman and another man, El Sayyid Nosair, to life in prison, a decision that required him to keep armed guards with him for protection. 

Ø      Judge Mukasey Issued The First Ruling On Jose Padilla’s Challenge To His Detention As An Enemy Combatant.  He found that the Government had the right to hold Mr. Padilla as an enemy combatant without charging him for a crime.  Judge Mukasey also granted a defense motion to allow Mr. Padilla to meet with his attorneys.

Ø      A Former Prosecutor, Judge Mukasey Served For Four Years (1972-76) As An Assistant United States Attorney For The Prestigious And Demanding Southern District Of New York Office.  While in the United States Attorney’s office, Judge Mukasey demonstrated strong leadership and management skills as the Chief of the Official Corruption Unit. 

Judge Mukasey Has Demonstrated A Keen And Independent Interest In National Security And Terrorism Issues

In A Recent Wall Street Journal Op-Ed, Judge Mukasey Argued Jose Padilla’s “Case Shows Why Current Institutions And Statutes Are Not Well Suited To” The Effort To Combat Terrorism.  “The history of Padilla’s case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions. …[S]uch prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.  And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.”  (Michael B. Mukasey, Op-Ed, “Jose Padilla Makes Bad Law,” The Wall Street Journal, 8/22/07)

In 2004, Judge Mukasey Wrote An Op-Ed Commending The USA PATRIOT Act And Encouraging Opponents To Avoid “Reflexive” Or “Recreational” Criticisms.  “I think most people would have been surprised and somewhat dismayed to learn that before the Patriot Act was passed, an FBI agent could apply to a court for a roving wiretap if a drug dealer switched cell phones, as they often do, but not if an identified agent of a foreign terrorist organization did; and could apply for a wiretap to investigate illegal sports betting, but not to investigate a potentially catastrophic computer hacking attack, the killing of U.S. nationals abroad, or the giving of material support to a terrorist organization. Violations like those simply were not on the list of offenses for which wiretaps could be authorized.”  (Michael B. Mukasey, Op-Ed, “The Spirit Of Liberty,” The Wall Street Journal, 5/10/04)

Commentary On Michael Mukasey’s Record: “An Outstanding Judge”

U.S. District Court Judge Edward Korman: “His legacy is the manner in which he has administered justice in the cases that have come before him. … In that regard Michael Mukasey is an outstanding judge.”  (Joseph Goldstein, “As Judge Leaves For Law Firm, His Legacy Is Remembered,” The New York Sun, 7/26/06)

New York Lawyer Kenneth Bialkin: “I do feel his return to private practice unfortunately deprives the court system of one of the most outstanding, competent, experienced, tough, and honest judges on the bench.”  (Joseph Goldstein, “As Judge Leaves For Law Firm, His Legacy Is Remembered,” The New York Sun, 7/26/06)

The United States Court Of Appeals For The Second Circuit: In affirming the verdicts in the trial of the 10 terrorist defendants who plotted to bomb New York City landmarks and helped plan the 1993 World Trade Center bombing, the United States Court of Appeals for the Second Circuit took the unusual step of commending Judge Mukasey’s work, writing: “The trial judge, the Honorable Michael B. Mukasey, presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge.”

Judge Mukasey’s Career Is Marked By Other Valuable Experiences That Will Serve Him And Our Nation Well If He Is Confirmed As Attorney General

From 1976-87, Judge Mukasey Worked At The Law Firm Of Patterson, Belknap, Webb, And Tyler In New York City.  Judge Mukasey returned to his position as a partner at Patterson Belknap following his retirement from the bench in 2006.

Judge Mukasey Received His Undergraduate Degree From Columbia University In 1963 And His Law Degree From Yale University In 1967.

Judge Mukasey Brings To The Position Of Attorney General A Fresh Perspective And A Non-Political Background.  

Mukasey, Schumer, and Aron


Conservative anxiety about the anticipated nomination of Judge Michael B. Mukasey to be Attorney General derives in part from the fact that Senator Charles Schumer and the Alliance for Justice’s Nan Aron appear to be so high on him.  What do they know about him that others don’t?  My inquiry has led me to believe that the answer is … nothing.


First, let’s review the facts.  In 2003, Senator Schumer sent President Bush a letter in which he identified five Republicans—Senator Specter and four federal judges—whom Schumer thought could win unanimous support as Supreme Court nominees (though Schumer stopped short of promising his own support).  Mukasey was one of the four judges.  In 2005, Nan Aron listed the same four judges as “consensus nominees.”  More recently, both Schumer and Aron expressed their preference for Mukasey over other AG candidates.


Someone who is close to Mukasey and whom I also know and trust assures me that Mukasey and Schumer have had limited contact over the years and that Schumer wouldn’t have any special insights into Mukasey’s understanding of the law.  If this is the case (as I believe it to be), why, then, would Schumer put Mukasey on his 2003 list of Supreme Court candidates?  The answer, I believe, is that Schumer’s 2003 list was a cynical effort to enhance his own standing to oppose whomever the President nominated to the Court.  In other words, Schumer was promoting as Supreme Court candidates five individuals who he knew had no serious prospect of ever being nominated so that he could later paint himself as having been reasonable.  And Aron simply cribbed his list. 

Schumer’s and Aron’s current preference for Mukasey over other leading candidates is also easy to explain.  Schumer and Aron don’t have as much trust that the other candidates will separate law from politics.  Although I believe that they are wrong, their judgment is not surprising in light of the fact that some of the other candidates have been more engaged with the world of politics while Judge Mukasey has been on the bench for the past two decades.  It’s easy to imagine conservatives making similar distinctions between AG candidates being considered by a Democratic president.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of September 17


Sept. 17     Both a good day and a bad day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts.  In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990.  As a justice, Souter has misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.


Sept. 19     1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton.  A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench.  As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering.  Here are a couple examples of Mikva’s creative opinions: 

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless.  In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights.  A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.”  On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct.  In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.”  One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

AG Nominee Mukasey?


It’s being widely reported that President Bush will nominate retired federal judge Michael B. Mukasey to be Attorney General.  On the assumption that the reports are accurate, I’m going to offer a series of short posts today explaining why I regard Mukasey as a nominee whom conservatives should welcome.  I intend in particular to address the questions and concerns that some have raised about Mukasey.


One note at the outset:  I will not be comparing Mukasey, either explicitly or implicitly, to any of the other folks who have been reported to be in the running.  I would be happy with any of the candidates on most of the “short lists” that I have seen.  Especially after Senator Harry Reid’s cheap preemptive strike on Ted Olson, I would have welcomed the vigorous public debate that a battle over the Olson nomination would have produced. 

Tags: Whelan

Rudy and Roe


I was going to say something about this NYT op-ed by Eric Johnston, a theology student at Catholic University, but Kathryn and especially Ramesh got there before me.  Johnston tries to make a case that Rudy Giuliani, precisely because he is a pro-abortion-rights candidate, could do more for the pro-life cause than any other candidate in the Republican field.  To the problems Ramesh sees with Johnston’s case, I would add this: Republicans have had no trouble electing pro-life presidents these last 30 years, yet Johnston seems to think that a pro-abortion GOP candidate would have a better shot at breaking some logjam or other in the public debate over the issue.  But the logjam has only secondarily been in the realm of public opinion.  First and foremost, as long as it asserts its hegemony over the issue by upholding Roe, the logjam has been in the Supreme Court.  And Rudy Giuliani is the least likely of all the leading GOP contenders to attend to this question (even tacitly while avoiding that allegedly awful “litmus test”) in choosing Supreme Court nominees.

Yes, he has pledged to nominate “strict constructionists.”  And he has declared that judges should “not amend the Constitution without the consent of the American people.”  But as Johnston cannot deny, Giuliani has not said that Roe v. Wade was such an illegitimate judicial “amendment” of the Constitution.  He has not said that for him, strict constructionism requires the overturning of Roe.  He has even said that judges could go either way on the survival of Roe as a precedent and it would be “O.K.” with him.  Gee, that’s some well-thought-out strict constructionism there.

There’s a lot to like about Rudy Giuliani on other grounds.  And this isn’t 1860, when there was just one issue in the election.  Still, I’m reminded of what Harry Jaffa says (in his great book on Lincoln, A New Birth of Freedom) of a moment in the late 1850s when some in the Republican Party dallied with the idea of making the Illinois Democrat Stephen A. Douglas its standard-bearer.  Douglas was to slavery then what Giuliani is to abortion now–the “don’t care” man, who declared that it mattered not to him which way people voted on slavery in the territories, just as Rudy shrugs at either outcome the next time Roe is tested in the Supreme Court.  As Jaffa puts it in describing this crisis moment for the Republicans and the country then:

The Declaration of Independence as the “sheet anchor of American republicanism” would have been abandoned, to be replaced by popular sovereignty.  There would have been no Gettysburg Address to memorialize the Founding in the minds of American citizens.  Lincoln’s argument that the principles of the Declaration contained a promise to all men everywhere would have perished from the earth.  What would have made the Union worth saving in such a case is hard to imagine.

At this moment it was essential for Lincoln, the party, and the country that he make Douglas unacceptable to the Republicans.  For the future of the right to life, it may be equally essential that Giuliani be made unacceptable to today’s Republican Party.  Eric Johnston, I’m afraid, has his political calculus exactly backwards.

Representing the District


In blogging yet again on Wednesday about the unconstitutional bill to give Washington, D.C. a House seat without statehood, I wrote: “Make D.C. a state, or amend the Constitution (see 23rd Amendment for the model).  There is no third way.”  A couple of astute readers point out that there is a third way of sorts: retrocession of nearly all of the present District to Maryland, as was done about 160 years ago with the Virginia portion of the original capital.

I hadn’t forgotten this option (I’ve even blogged about it here before).  But I should have been plainer and said “[t]here is no third way” to give the District of Columbia a House seat while it remains the political unit it is now, a part of no other state.  To receive representation in Congress without a constitutional amendment (in both houses, as needs must be if there is no change in the Constitution), the District must either become a state, or return to being part of a state. 

If the first option were chosen, the Congress would have to decide whether all or part of D.C. constituted the state.  If all of it did, including the central mall area where the White House, Congress, and Supreme Court are situated, then Congress would be abdicating its function of “exclusive Legislation” over a “Seat of the Government” located in a district not in any state.  If most but not all of the present District were made a state, that tiny area could remain in the care of the national government as intended by the framers.

Retrocession, though, would be the better option, returning all but that tiny capital area to Maryland, with a bump in that state’s population that would net it an additional House seat, while the state’s two senators would henceforth represent those “returned” Marylanders as well.

One catch, either with statehood or retrocession, is that repeal of the 23rd Amendment would be necessary, eliminating the votes in the electoral college that are currently controlled by the District’s electorate.

Here’s an idea for Senator Orrin Hatch: give Utah the new House seat offered in the current bargain, plus an additional House seat for Maryland to go with the D.C. residents returned to its care, and we’ll keep the size of the House at a desirable odd number, 437, just as in the proposed bill.  Move the repeal of the 23rd Amendment as part of the whole package, and let’s see who likes this alternative better.  At least it respects the principles of the Constitution.

The Right to Life vs. the Right to Lie


Far be it from me to complain that Kathryn runs too much content here at NRO (can there be too much?), but there’s an excellent piece today that is so far down the homepage you might miss it: Walter M. Weber’s take on the holding of the New Jersey Supreme Court the other day that a physician cannot be held liable for misinforming pregnant women about what they carry inside them.  The court told a whopper of its own when, as Weber puts it, it “declared that there was ‘clearly no consensus’ on whether an embryo is, as a matter of ‘biological fact’ a ‘human being.’”  Until we encounter a case of a woman whelping a litter of puppies, it would seem to be undoubted that the beings borne by pregnant women are human ones.

Here We Go Again


“Borking Mr. Olson” is the must-read editorial in today’s Wall Street Journal.

NYT and Partisan Attorneys General


My provincial little hometown newspaper — so willfully ignorant of times and places other than the island of Manhattan in 2007 — carries an editorial this morning attacking the rumored choice of Ted Olson for Attorney General: 

OPINION   | September 13, 2007

Editorial:  The Next Attorney General 
  The NYT, like New York’s Senators, want to avoid even a nomination of Ted Olson — or any other bright, capable, Republican lawyer — and having Americans see the Democrats as obstructing a talented new Attorney General from getting on with the business of running the Justice Department.  The Times, Harry Reid, and  New York’s Senators want to scare the White House from nominating anyone remotely associated with the Republican Party, for . . . a cabinet position in a Republican administration.  That’s a new one.  Let’s remind Hillary Clinton that presidents cannot pick attorneys general who have been associated with any legal battle favored by Democrats.

Yes, it’s a shame that President Bush doesn’t have a partisan, campaign-advisor brother who he can appoint to head the department headquartered in the Robert F. Kennedy building.  There are probably a large number of civil rights leaders whose phones need tapping.    

On Capitol Hill, Bad Ideas Never Die


Almost a year has now passed since I first offered a refutation here at NRO of the unconstitutional idea of giving the District of Columbia a full voting seat in the House of Representatives, and I have blogged here about it frequently since then.  The arguments of the idea’s proponents have, if anything, gotten worse over time.  Today’s Washington Post carries its latest incarnation, a weak attempt to connect this bill to “civil rights” that overtly plays the race card.  The piece is signed by three members of Congress and a wannabe: Sens. Joe Lieberman and Orrin Hatch, Rep. Tom Davis of Virginia, and “nonvoting delegate” Eleanor Holmes Norton of D.C.  Norton’s self-interest is self-evident.  Hatch seems to have taken no interest in this “voting rights” crusade until an additional House seat for Utah (which will come the state’s way in the next census anyway) was thrown into the bargain.  But it’s the argument that matters, and it’s a bad one.

Our four musketeers cite former assistant attorney general Viet Dinh for the proposition that the Supreme Court has, in the past, sanctioned congressional acts that recognized D.C. as akin to a state for some purposes.  Yes it has, sometimes rightly and sometimes wrongly (and yesterday’s errors cannot baptize today’s).  But all previous instances of such assimilation of D.C. to a state have entailed the incidental exercise of powers the Congress legitimately exercised over the whole nation.  The misleadingly named “D.C. Voting Rights Act” is different.  By this legislation, the Congress would assume the power to alter the constitutive basis of its own power under the Constitution.  Congress’s power derives from its constituents, the people of the various states.  If Congress can seat a member from D.C. without making it a state, it can seat a member from Puerto Rico, or Guam, or the Virgin Islands, without making it a state.  It could establish a seat filled by the votes of expatriates who no longer maintain any status as a “resident” of any state.  In fact, there would henceforth be no barrier to the granting of seats in Congress to voters in Saskatchewan–Canadian ones, not U.S. expats–since there is no requirement in the Constitution that congressional voters be U.S. citizens, only that they be “the People of the several States,” and Congress will already have ignored that essential stricture.

Congress will also have established the precedent that some constituencies in Congress can be represented in one house of the body but not the other.  There is no provision in the present bill to give D.C. senators as well as a representative–which is in itself proof of its unconstitutionality, since the Constitution cannot be said to contemplate a political unit represented in just one house.  And there is no reason not to do it the other way around.  May we expect to see a bill giving Puerto Rico two senators and no representative?  It would be equally permissible.

Make D.C. a state, or amend the Constitution (see 23rd Amendment for the model).  There is no third way.  When the argumentum ad misericordiam must be made for the obviously unconstitutional, we can conclude that the votes aren’t there for either of the two legitimate options before the Congress.

This Week in Liberal Judicial Activism—Week of September 10


Sept. 11     1980—Less than two months before the election of President Reagan, the Senate confirms the controversial nomination of now-notorious judicial activist Stephen Reinhardt to a newly created seat on the Ninth Circuit.  Twenty-seven years later, Reinhardt, still in active (mis)service, continues his hijinks.

In Reinhardt’s overtly political view of judging, “The judgments about the Constitution are value judgments.  You reach the answer that essentially your values tell you to reach.”  Reinhardt is probably the most overturned judge in history:  In one year alone, the Supreme Court reversed him on eleven occasions, including (as Yale law professor Akhil Amar put it) “unanimously an unbelievable five times.”  Ever defiant, he declares, “They can’t catch them all.”

1992—Responding bitterly to the Third Circuit’s order removing him from a personal-injury action against tobacco manufacturers (see This Week for Sept. 4, 1992), federal district judge H. Lee Sarokin recuses himself from a closely related case.  In so doing, he issues this brazen broadside that both misstates the basis of the Third Circuit’s ruling and impugns the integrity of the Third Circuit judges:  “I fear for the independence of the judiciary if a powerful litigant can cause the removal of a judge for speaking the truth based upon the evidence, in forceful language that addresses the precise issues presented for determination.”  Sarokin adds this statement of politicized nonsense:  “If the standard established here had been applied to the late Judge John Sirica, Richard Nixon might have continued as President of the United States.”


Sept. 13     1999—Is Ninth Circuit judge Stephen Reinhardt trying to hide his handiwork?  In an unsigned opinion that bears the marks of Reinhardt, a Ninth Circuit panel on which Reinhardt sits rules (in United States v. Oakland Cannabis Buyers’ Cooperative) that a district court, in crafting an injunction that barred cannabis clubs from distributing marijuana, improperly failed to consider modifying its injunction to permit those clubs to distribute marijuana in cases of medical necessity.

On review, the Supreme Court unanimously reverses, ruling that there is no medical-necessity exception to the federal Controlled Substances Act’s prohibition on the manufacture and distribution of marijuana.


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Ted Olson for Attorney General


Kate makes the case that Ted Olson is exactly what the Department of Justice needs right now.

It’s About Time


Today President Bush sent the Senate two nominations for the Fourth Circuit:

E. Duncan Getchell, Jr., of Virginia, to be United States Circuit Judge for the Fourth Circuit, vice H. Emory Widener, Jr., retired.

Steve A. Matthews, of South Carolina, to be United States Circuit Judge for the Fourth Circuit, vice William W. Wilkins, Jr., retired.

Too many vacancies unfilled for too long.  Let’s hope for prompt action by the Senate, but I wouldn’t count on it.

Jack Goldsmith’s The Terror Presidency—Part 4


In these posts, I’ve only touched on some of the broader themes that make Jack Goldsmith’s The Terror Presidency a deeply interesting read for anyone interested in the long battle against jihadism.  And that should include all Americans.  For as Jack makes clear in his last chapter, the Terror Presidency is not the presidency of George W. Bush.  It is, rather, the state of “[e]very foreseeable post-9/11 President, Republican or Democrat”:


“For generations the Terror Presidency will be characterized by an unremitting fear of attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so.  The threats have such a firm foundation in possibility, and such a harrowing promise of enormous destruction, that any responsible executive leader aware of the threats … must assume the worst….  If anything, the next Democratic President—having digested a few threat matrices, and acutely aware that he or she alone will be wholly responsible when thousands of Americans are killed in the next attack—will be even more anxious than the current President to thwart the threat….”

Tags: Whelan


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