Bench Memos

NRO’s home for judicial news and analysis.

A Court in Need


The Washington Post is calling for Senate confirmation of Bush nominees to the U.S. Court of Appeals for the Fourth Circuit.

No federal appeals court is more in need of help than the U.S. Court of Appeals for the 4th Circuit. The court hears cases from federal trial courts in Maryland, Virginia, West Virginia and the Carolinas, and it handles a disproportionate share of important appeals in terrorism cases. When fully staffed, the court has 15 active judges; currently, it has five open seats. Of these vacancies, three are considered judicial emergencies because the seats have been open for at least 18 months.

The editorial rightly criticizes President Bush for undue tardiness in naming qualified nominees for the court, but goes on to call for quick action on several of the President’s picks.

This Week in Liberal Judicial Activism—Week of December 24


Dec. 25     1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building.  In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’.  As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene.  The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.”  Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity.  Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.  


Dec. 27     1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis.  The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement.  (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)

Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.”  He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.”  “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.”  But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.

On review, the Third Circuit disallows the multiplier.  In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career:  “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.”  Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.”


Dec. 30     2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named  Mr. Bad Marriage.  Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend.  His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court.  Applying the Sentencing Guidelines’ rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is “a powerful indictment of the criminal justice system” and that the problems of alcohol abuse and crime on Indian reservations “cry out for treatment, not simply more prison time.”  Never mind, as dissenting judge Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend.  In the end, the panel’s spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time:  Resentencing Bad Marriage after the Supreme Court’s January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism


Another Ignorant Critic of Originalism


It’s remarkable how many arrogantly dismissive critics of originalism have no idea what it is.  Here’s an excerpt from an op-ed by historian Joseph J. Ellis in today’s Washington Post:


It’s tempting to believe that the political wisdom of our Founding Fathers can travel across the centuries in a time capsule, land among us intact, then release its insights into our atmosphere — and as we breathed in that enriched air, our perspective on Iraq, global warming, immigration and the other hot-button issues of the day would be informed by what we might call “founders’ genius.” (Come to think of it, at least two Supreme Court justices who embrace the literal version of “original intent” believe that this is possible.)


For starters, the two justices that Ellis is referring to—Justices Scalia and Thomas—embrace the original-meaning species of originalism, not the original-intent species.  (See third paragraph in first link above for an explanation of the distinction.)  More importantly, originalists believe only that the meaning of constitutional provisions is to be construed according to originalist principles, not that policy decisions within constitutional bounds should be made by asking what the Framers would have done.  In other words, originalists recognize that the Framers created a constitutional republic in which citizens over time can, within broad bounds, revise policies to changing circumstances. 


Why is it that so many otherwise intelligent academics can’t understand this elementary point?  Might it be that they have no answer to it?


Equally curiously, after mistakenly dismissing originalism and asserting generally that the “gap between the founders’ time and ours is non-negotiable,” Ellis relies on an originalist argument (based on his reading of “the debates … in the Constitutional Convention and the states’ ratifying conventions” and what the “founders intended”) in setting forth his thoughts on the proper scope of executive power.

Tags: Whelan

The D.C. Circuit’s 12th Seat Becomes the Ninth Circuit’s 29th


A court-security bill (H.R. 660) on its way to be signed into law by President Bush includes a provision that eliminates the 12th seat on the D.C. Circuit and gives the Ninth Circuit one more seat—its 29th.  This provision of the bill takes effect on January 21, 2009.  Two thoughts:


1.  There had been controversy over whether the D.C. Circuit ought to have 10 or 11 seats, and that controversy had been used by some on the Senate Judiciary Committee as a reason not to act on Peter Keisler’s pending nomination, since Keisler would become the 11th active judge on the D.C. Circuit.  This soon-to-be-law plainly reflects the Senate’s judgment that the D.C. Circuit should have 11 seats, and it thus ends that controversy.  All the more reason for the Senate Judiciary Committee to move promptly to report Keisler’s nomination to the Senate floor and for the Senate to confirm Keisler, who was nominated nearly 18 months ago and who had his hearing more than 16 months ago.  (The fact that the provision eliminating the 12th seat does not take effect until January 2009 is irrelevant to this point; what matters is that there will continue to be an 11th seat.)    


2.  This article reports that Senator Feinstein regards the new Ninth Circuit seat as belonging to California: 


“California needs more judges,” Feinstein said in a statement. “The Senate has recognized that it makes sense to take a judgeship from where it is needed least, and put it in California, where it is needed most.”


Feinstein’s proposition is flawed in two respects.  First, H.R. 660 assigns the new seat to the Ninth Circuit, not to California specifically.  Indeed, so far as I am aware, no provision of federal law assigns any federal appellate seat to a specific state.  Second, Ninth Circuit (and other federal appellate) judges, no matter where they have their chambers, hear the same mix of appeals from district courts in different states in their circuit.  In other words, California’s supposed need is equally served whether the new seat is in California or elsewhere.


Wrong as it is, Feinstein’s statement does reflect the unfortunate political reality that the Senate, favoring (as I discuss in this essay) the self-serving interests of individual senators over considerations of judicial quality, has permitted senatorial influence to extend to supposed home-state appellate seats. 

Tags: Whelan

Re: Linda Greenhouse’s Ethical In-Fidell-ity


As I learned a few days ago, in the course of expressing his amazement at Linda Greenhouse’s highly partisan remarks* in a Radcliffe speech in June 2006, Daniel Okrent, who served as the New York Times’s first public editor (or ombudsman) from 2003 to 2005, is reported to have said that “he never received a single complaint about bias in Greenhouse’s coverage” of the Supreme Court.  Of course, given Greenhouse’s long history of partisanship and bias, including her participation in a 1989 pro-abortion rally in D.C., it may well be that readers figured that complaining was futile.


As faithful Bench Memos readers will recall, a week ago I exposed Greenhouse’s conflict of interest in reporting on Supreme Court cases in which her husband, Eugene R. Fidell, participated.  Little did I imagine that I might be making history when I e-mailed a complaint about the matter to the Times’s current public editor, Clark Hoyt, the following morning.  My e-mail asked how it was that Greenhouse was permitted to report on the cases and what the Times’s conflict-of-interest policies are.


Alas, six days later, I have received no response from Mr. Hoyt—beyond the automatic computer-generated assurance that he or an associate “read every message”, that they “forward many messages to appropriate newsroom staffers and follow up to be sure concerns raised in those messages are treated with serious consideration”, and that “[i]f a further reply is warranted, you will be hearing from us shortly.”  In fairness to Mr. Hoyt, it may well be that he is attending to the matter or that he is buried under an avalanche of other complaints that the Times’s biased news coverage has generated.


Believing that complaints should be dealt with on their merits rather than based on the number of complainers, I’m not interested in prodding folks to contact Mr. Hoyt.  But if the unusually strong reaction—all anti-Greenhouse—to my post last week is any indication, many of you may already be so inclined.  If so, you may reach Mr. Hoyt at [email protected]


* After recounting her “crying jag” at a  Simon and Garfunkel concert in 2003 or so, Greenhouse, you may recall, complained about treatment of enemy combatants, “the sustained assault on women’s reproductive freedom,” and “the hijacking of public policy by religious fundamentalism.”

Tags: Whelan


Judge Tinder Confirmed


Via How Appealing comes news that the Senate has unanimously approved district court Judge John Tinder to a seat on the U.S. Court of Appeals for the Seventh Circuit.

Misjudging Judicial Education


Senator Jon Kyl is at or very, very near the top of my list of favorite senators, so, like John Fund, Paul Mirengoff, Jonathan Adler and Andy McCarthy, I’m surprised and disappointed to learn that he has signed onto legislation proposed by Senator Russ Feingold that would effectively cripple or kill judicial-education programs that are not run by government bureaucrats or bar-association activists.  Specifically, the Feingold legislation, which is being offered as an amendment to a judicial pay-raise bill pending before the Senate Judiciary Committee, would permit federal judges taking part in judicial-education programs to accept reimbursement for (or a gift of) travel, lodging, and other travel-related needs only for those programs run by the government or by bar associations.  


As I discussed in my essay “George Soros’s Two Left Hands,” a primary victim of such legislation would be the academically rigorous programs in economics, philosophy, and history offered by the George Mason University Law and Economics Center.  The fact that various federal courts of appeals and state court systems have enlisted George Mason to provide the academic content for their annual conferences speaks powerfully to the quality and integrity of its programs.  Further, the Judicial Conference of the United States has emphasized that there is a “compelling need” for “continuing education of judges in law, science, history, economics, sociology, philosophy, and other disciplines”—education that the sources that the Feingold amendment would permit are ill-equipped to provide. 


The Feingold amendment would also impose a “single trip or event” limit of $1500 and an aggregate annual trip-or-event limit of $5000 on the travel, food, lodging, reimbursement, and outside earned income that federal judges could receive from entities other than governments or bar associations.  This would have a severe effect on the availability of federal judges to teach courses or seminars sponsored by law schools and to serve as moot-court judges.


Various provisions of statutory law, together with Judicial Conference regulations, govern outside earned income and judicial education for federal judges.  I haven’t seen anyone make a serious case that the current system is inadequate, and I don’t see how the Feingold amendment would achieve anything desirable.

Tags: Whelan

NRO invades CRB


The new Claremont Review of Books is out (and now fully accessible online to subscribers), and five of the pieces in this issue are by familiar NRO names: articles by Victor Davis Hanson and Stanley Kurtz, and reviews by Jonah Goldberg, Ramesh Ponnuru, and yours truly.  My review is in the “consider this a lump of coal in your stocking” category.

This Week in Liberal Judicial Activism—Week of December 17


Dec. 18     1997Best is worst—Best v. Taylor Machine Works, that is.  In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act.  Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation.  In twisted confusion over which branch has the authority to make law, it also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.”  Under the “special” legislation pretense, the court strikes down, too, the act’s abolition of the common-law doctrine of joint and several liability.  And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”


Dec. 20     1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”  In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples.  So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples. 


Dec. 23     2006—In the wake of the Democratic takeover of the Senate, newspapers report that Mississippi attorney Michael B. Wallace has decided to ask President Bush not to renominate him to a Fifth Circuit vacancy.  Wallace’s nomination had previously suffered from the ABA’s thoroughly scandalous “not qualified” rating.  Although it determined that Wallace “has the highest professional competence” and “possesses the integrity to serve on the bench,” the ABA judicial-evaluations committee found him lacking on the highly malleable element of “judicial temperament.”  Bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and flat-out perjury infected the ABA’s treatment of Wallace.


For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism

And Just One More Thing


Wouldn’t Justice William Jefferson Clinton have to recuse himself from all cases testing the boundaries of executive power as exercised by President Hillary Rodham Clinton?  I’m just asking . . .

Taft Correction


An alert reader notices my omission of perhaps the most important of the jobs held by William Howard Taft relevant to his service on the Supreme Court: his eight years (1892-1900) on the Sixth Circuit.  I’ve corrected the posting below to include this fact, which I knew but carelessly overlooked when I borrowed the quickie bio of Taft’s professional life from the indispensable historical database at the Federal Judicial Center (which lists all federal court service separately).

Re: Justice Bill Clinton?


Jonathan Adler calls it a “disquieting possibility,” which is an understatement.  I’m not sure why Douglas Kmiec offered the speculation that Hillary Clinton might appoint her husband to the Supreme Court.  But even less clear is why Bill Clinton is in any way to be compared to William Howard Taft when it comes to a Supreme Court appointment.  Aside from the fact that Taft was president before he was chief justice, Kmiec musters only two similarities between the two men–a “warm, gregarious personality,” and the fact that both were law professors at some point in their careers.  Kmiec mildly notes that “[t]here are also differences.”  Yeah, you betcha.

Here’s the most barebones summary of Taft’s résumé before he began his final career as chief justice in 1921:

Assistant prosecuting attorney, Hamilton County, Ohio, 1881-1883
Collector of internal revenue, City of Cincinnati, Ohio, 1882
Private practice, Cincinnati, Ohio, 1883-1887
Assistant county Solicitor, Hamilton County, Ohio, 1885-1887
Judge, Superior Court of Ohio, Cincinnati, Ohio, 1887-1890
Solicitor General of the United States, 1890-1892

Judge, U.S. Court of Appeals for the Sixth Circuit, 1892-1900

Professor and dean, University of Cincinnati, Cincinnati, Ohio, 1896-1900
President, U.S. Philippine Commission, 1900-1901
Civil Governor, Philippine Islands, 1901-1904
U.S. Secretary of War, 1904-1908
President of the United States, 1909-1913
Kent professor of law, Yale University, 1913-1921

And of Bill Clinton we can say what?

Assistant professor of law, University of Arkansas, 1973-76

Attorney general of Arkansas, 1977-79

Governor of Arkansas, 1979-81, 1983-1993

President of the United States, 1993-2001; impeached 1998, acquitted 1999

Suspended from the practice of law, 2001-06

Further comparison would only highlight even more distance between Taft’s and Clinton’s qualifications–such as Taft’s impressive record as a constitutional scholar before his chief justiceship, contrasted with Clinton’s  . . . nonexistent one.

Then one might turn to the constitutional dimensions of the Clinton presidency.  Bill Clinton’s administration asserted more outlandish constitutional claims than that of any president in living memory, including Richard Nixon.  Clinton is the president who lost, in a unanimous decision of the Supreme Court, a claim that the president is personally immune (in all but the rarest cases) from all civil damages litigation while he serves in office.  He is the president who advanced–and lost, in the D.C. Circuit Court–the argument that White House attorneys “may refuse, on the basis of a government attorney-client privilege, to answer questions about possible criminal conduct” by the president.  He is the president whose administration invented a “protective function privilege,” allegedly grounded in the Constitution, intended to prevent Secret Service agents from testifying to what they might know of a president’s criminal conduct–also a claim rejected by the D.C. Circuit.  And Bill Clinton is the president who illegally maintained Bill Lann Lee in the office of assistant attorney general for civil rights, notwithstanding both the Constitution and the Vacancies Act.

Take it from someone who has taught “con law” for over 20 years: doing it for just three years is hardly sufficient preparation for service on the Supreme Court of the United States.  In the thirty years that have passed since he taught in a law school, what can we say of Clinton’s relationship to the law?  Not much that is favorable to him.  Unlike William Howard Taft, Bill Clinton’s interest in the Constitution and laws of the United States has always run in a single track–how he can use them to advance his self-aggrandizement and achieve his narrow political aims. 

Clinton is less qualified for the Supreme Court than was Harriet Miers, and his nomination would be far more controversial than hers was.  This kind of firestorm Hillary would not need.  But maybe that’s just what Douglas Kmiec had in mind with this mischievous suggestion!

Justice Clinton


What would Hillary Clinton do with Bill if she were to occupy the White House?  Doug Kmiec suggests a disquieting possibility: Nominating him to the Supreme Court.

Before dismissing the possibility of Justice William Jefferson Clinton, it is worth recalling a bit of history — most notably, the history of another former president who landed on the Supreme Court, William Howard Taft. Taft would come to love his fellow justices and the court so much that he later described them as his ideals “that typify on earth what we shall meet hereafter in heaven under a just God.”

That seems a little strong for Bill Clinton, but Taft and Mr. Clinton are not without their similarities. For example, both started out in life as law professors — Taft at the University of Cincinnati and Mr. Clinton at the University of Arkansas. Mr. Clinton also shares with Taft a warm, gregarious personality that is well received at home and abroad.

There are also differences. Taft never had his law license suspended (Mr. Clinton’s suspension for “serious misconduct” formally ended in 2006), and Taft had extensive judicial service on lower courts before the presidency. Indeed, Taft always preferred the judiciary over the executive office, assessing his own presidential term as “a very humdrum, uninteresting administration” that failed to “attract the attention or enthusiasm of anybody.” President Clinton’s service, by no one’s calculus, was uninteresting. . . .

In short, a seat on the Supreme Court solves Sen. Clinton’s dilemma of what to do with her husband if she becomes president. It keeps Bill formally out of the White House and structurally out of the executive branch. And lest that dampen Mr. Clinton’s interest, he might be reassured by Taft’s practice of continuing to advise the president on the substance of legislation and to lobby to sustain various presidential vetoes.

True, some of this activity would be seen as well beyond the precepts of modern judicial ethics, but even if Justice Clinton stayed solely within his judicial role, his impact need hardly be minimal. During Taft’s service, the court called the shots in government getting its own building and for the first time winning virtually complete control of its own docket.

Linda Greenhouse’s Ethical In-Fidell-ity


Eugene R. Fidell is a recognized expert in military law and a prominent critic of President Bush’s policies on detention of enemy combatants.  Among other things, he has been actively engaged in the Boumediene case that was argued just last week in the Supreme Court.  At the D.C. Circuit level, he submitted an amicus brief in the case in support of Guantanamo detainees.  And in the Supreme Court briefing, he is listed in the amicus brief submitted on behalf of the Constitution Project (and other entities) as one of the signatories to the Constitution Project’s Statement on Restoring Habeas Corpus Rights Eliminated By The Military Commissions Act.  He also submitted an amicus brief in Hamdan v. Rumsfeld, decided last year by the Supreme Court.


Oh, Fidell has one other distinction of note:  He is the husband of New York Times Supreme Court reporter Linda Greenhouse.


I don’t know what standards of journalistic ethics the New York Times and Greenhouse purport to adhere to.  The Code of Ethics of the Society of Professional Journalists (which describes itself as the “nation’s most broad-based journalism organization” and has some 9,000 members) sets forth the proposition that journalists should “[a]void conflicts of interest, real or perceived.”  But that proposition would appear elementary for any journalist with any claim to being objective.


Notwithstanding her husband’s active participation in Boumediene and Hamdan, Linda Greenhouse has played her usual role in reporting on these cases.  (Here and here, for example, are two articles of hers from last week on Boumediene, and here is her article announcing the Administration’s “sweeping and categorical defeat” in Hamdan.)  I am not going to try to argue that her reporting has been biased by her husband’s role, as it would be impossible to separate any such bias from the broader political bias that pervades so much of Greenhouse’s reporting.  The simple fact is that she has reported, and is reporting, on cases in which, by any usual test, her husband’s role means that she has an actual conflict of interest.  (Nor, so far as I can tell, does Greenhouse even disclose to readers her conflict.)

Tags: Whelan

More on Sen. Whitehouse


Just to add to what Matt says below, even thoughtful liberals, such as Georgetown’s Marty Lederman, take issue with Sen. Whitehouse’s attack on the White House.

Whitehouse Attacks White House, to No Effect


A bemused reader put me onto a speech given by the freshman Democratic senator from Rhode Island, Sheldon Whitehouse, on the floor of the Senate last Friday.  It’s so awful that it appears not to have been covered by any of the senator’s home-state newspapers, no doubt out of a quiet embarrassment–although Whitehouse’s staff sent it out as a press release and posted it on his website.  The subject of the speech is the general awfulness of the Bush administration, which as we all know “seeks to spy on Americans” because . . . well, just because it’s so much darn fun.

But by far the best part of Whitehouse’s speech is devoted to the dark subject of “highly classified secret opinions on surveillance” written over the past several years by the Justice Department’s Office of Legal Counsel.  He breathlessly tells us that he

was given access to those opinions, and spent hours poring over them.  Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

And what so amazed our ninny from the Narragansett?  Specifically, “three legal propositions,” which he says he somehow got “declassified,” yet cannot produce in any verbatim form in OLC documents. 

Here they are, as accurately as my note taking could reproduce them from the classified documents.  Listen for yourself.  I will read all three, and then discuss each one. 

1.      An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.

2.      The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

3.      The Department of Justice is bound by the President’s legal determinations. 

Classified or declassified?  Whitehouse can’t seem to make up his mind.  One moment he claims to have pried loose these “secrets,” and the next he suggests that because they are still classified he only has his notes to go on. 

But never mind that distraction.  Let us take his notes as completely accurate renditions of what he read, with no worries about their original contexts, and take them as given.  Whitehouse is exercised about a whole lotta nothing, since each of the three horrors he recites is in fact a perfectly unobjectionable, indeed innocuous, statement of constitutional principle.

The first principle goes without saying.  No act of a legislature can prevent a future legislature from repealing or amending that earlier act, and such amendment or repeal can be understood to have occurred by implication without the later act even mentioning the earlier one.  By the same token, an executive order has no limiting effect on the authority that made it–the president.  A president may revoke or amend any earlier order that he himself made, or that any of his predecessors made.  Or he can simply act, in complete disregard of such executive orders.  Executive orders are guides to executive action–nothing more and nothing less.  They may on occasion express an executive position on the meaning of a law, such that citizens and others shape their behavior according to expectations reflecting such interpretation.  But I know of no instance in which executive orders have ever called into being, ex nihilo, any rights of individuals not embodied in or inferred from the Constitution or a statute or treaty.  Hence the orders of the executive are no constraint on the actions of the executive–the quintessentially active branch of government.  It may be bad form for a president to contradict, by his actions, the words of an executive order that is not revoked or amended; it may even be “sneaky” to do so in secret and leave the public with the impression that the order still guides action.  But it is no insult to the Constitution to do any of these things, notwithstanding Whitehouse’s imaginings.  And it may be necessary to take such steps sometimes.

The second “proposition” that Whitehouse recites above is a real forehead-slapper.  Of course the president “determines” whether the actions of the executive branch are in conformity with Article II.  That’s the president’s job.  He is sworn (in an oath uniquely spelled out in the Constitution) to “faithfully execute the Office of President” and to “preserve, protect and defend the Constitution.”  It is likewise the business of Sheldon Whitehouse and his colleagues in the Congress, before they cast their votes on legislation, to “determine” for themselves whether they are exercising their Article I powers in conformity with their proper purposes.

Dimly recalling some long-ago law-school class, Whitehouse thinks he has the goods on this here Bush administration, trotting out the most widely misunderstood line in the most widely misinterpreted case in American legal history,

a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is “emphatically the province and duty of the judicial department to say what the law is.”

But that little decision also told us that

[t]he province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion.  Questions in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.

This is the origin of the “political questions” doctrine, side by side in Marbury with what we now call “judicial review.”  Whitehouse would have the latter swallow up the former, which is the classically fallacious move of the judicial supremacist.  But the Bush administration, if Whitehouse has fairly recounted its position, is on firmer ground than the senator.  The executive must always determine the lawfulness of executive action.  The judiciary must sometimes do so.  Ergo there will be times when the executive determination will be the first, the last, and the decisive one.  Sorry, senator.  That’s our Constitution.


Whitehouse’s third “proposition” is in many ways the easiest of all.  Since the Congress decided in 1789 that the governing principle of the relationship between the president and his principal subordinates is that they serve at his pleasure, it has been the orthodox understanding of the presidential cabinet that its members speak for the president, he speaks through them, and thus the unity of the executive branch is maintained.  It follows that the legal determinations of the Justice Department cannot contradict or control the president.  The Department’s chief officer, the attorney general, does not govern but is governed by the will of the president.  Now the law is what it is, and if the attorney general or other legal counselors in the executive branch offer sound interpretations of the Constitution and laws with which the president disagrees, his determination, by prevailing, will set the executive understanding of the law at odds with the law as properly understood.  In such a case the sworn officers of the Justice Department, whose duty to the Constitution is higher than their duty to the president, may and sometimes should resign in keeping with their best judgment and the dictates of their consciences.  Nevertheless, until and unless the Department gets its keel back under it and rights itself, it will, under the principles of the very same Constitution, speak as the wrongheaded president speaks.  What will right a wrongly directed Justice Department?  The same thing that turned it to the wrong course in the first place: presidential determination.  By statute, certain officers have duties to tell the president not what he wants to hear, but the law as they understand it.  But by the Constitution and by the plenary removal power Congress has left unhindered in presidential hands in this area, the department is the president’s creature, not the other way around.


Sheldon Whitehouse’s scary bedtime stories are best told to people who understand nothng of the Constitution.


More Disregard for Precedent


Red alert to the New York Times:  The disregard that some Supreme Court justices have for precedent evidently knows no bounds.  Here’s the latest evidence.


Fourteen years ago, in Smith v. United States, the Court ruled, by a vote of 6 to 3, that a person who trades his firearm for drugs “uses” that firearm “during and in relation to . . . [a] drug trafficking crime” within the meaning of 18 U.S.C. § 924(c)(1).  Justice Scalia argued in dissent that “[t]o use an instrumentality ordinarily means to use it for its intended purpose,” but the majority rejected what it evidently regarded as Scalia’s cramped textualism.  In the intervening years, Congress has left the Court’s interpretation in place, and that interpretation has been eminently workable.


In today’s ruling in Watson v. United States, the Court ruled unanimously that a person who trades drugs for a firearm does not “use” that firearm within the meaning of section 924(c)(1).  Eight justices were content to distinguish Smith, but one justice, embracing the reasoning in Scalia’s Smith dissent, expressly called for overruling Smith


What right-wing activist would show such contempt for precedent in a statutory case—where the force of stare decisis is generally regarded as greater than in constitutional cases, since the legislature remains free to correct the Court’s error?  None other than Justice Ginsburg.


More seriously:  Ginsburg’s entirely sensible opinion illustrates the elementary point that no justice subscribes to the exaggerated view of stare decisis that some on the Left invoke in an effort to preserve the ill-gotten gains from decades of liberal judicial activism.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of December 10


Dec. 10     1986—By a vote of 5 to 4, the Supreme Court, in a majority opinion by Justice Thurgood Marshall, rules (in Tashjian v. Republican Party of Connecticut) that a Connecticut statute that requires voters in any party primary to be registered members of that party violates the First Amendment rights of the party and its members.  In dissent, Justice Scalia observes:

“In my view, the Court’s opinion exaggerates the importance of the associational interest at issue, if indeed it does not see one where none exists. There is no question here of restricting the Republican Party’s ability to recruit and enroll Party members by offering them the ability to select Party candidates; [the statute] permits an independent voter to join the Party as late as the day before the primary.  Nor is there any question of restricting the ability of the Party’s members to select whatever candidate they desire.…

“[E]ven if … the majority of the Party’s members wanted its candidates to be determined by outsiders, there is no reason why the State is bound to honor that desire—any more that it would be bound to honor a party’s democratically expressed desire that its candidates henceforth be selected by convention rather than by primary, or by the party’s executive committee in a smoke-filled room. In other words, the validity of the state-imposed primary requirement itself, which we have hitherto considered ‘too plain for argument,’ presupposes that the State has the right ‘to protect the Party against the Party itself.’  It is beyond my understanding why the Republican Party’s delegation of its democratic choice to a Republican Convention can be proscribed, but its delegation of that choice to nonmembers of the Party cannot.”


Dec. 11     2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years previously—when it first ruled that Ohio’s existing system of financing its public-school system somehow violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state”—it had “provided no specific guidance as to how to enact a constitutional school-funding scheme.”  The court then proceeds, once again, to provide no specific guidance as to how to enact a constitutional school-funding scheme.  Some six months later, the court will finally end the litigation.  Displaying the limited power of judicial diktats, the General Assembly has never adopted a new funding system that aims to comply with the court’s rulings.


Dec. 13     1971—The initial Supreme Court oral argument in Roe v. Wade takes place.  The case ends up being carried over to the next term and re-argued in October 1972.  In the meantime, the Court issues its ruling in Eisenstadt v. Baird, which extends a right to contraception to unmarried persons.  (See This Week for March 22, 1972.)  Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple extraneous words:  “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”  In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”


Dec. 14     2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America—the fifth and latest moniker of the pro-abortion organization that dare not keep its name—stumbles upon some nuggets of truth:  The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.”  Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations.  The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Gitmo Handicapping


Arriving a bit late to this thanks to my day job, herewith a few thoughts on the press coverage of Wednesday’s oral argument in Boumediane v. Bush (transcript here; audio recording here), concerning the possible extension of constitutional habeas corpus rights to detainees at Guantanamo who are held as unlawful enemy combatants.

Linda Greenhouse in the New York Times sent up her colors early in her story in Thursday’s paper: “A majority of the court appeared ready to agree that the detainees were entitled to invoke some measure of constitutional protection.”  Why Greenhouse reads the case as a done deal in this respect, she never explains.  But she goes on to claim that Solicitor General Paul Clement’s “argument failed to gain traction,” and that he “rather remarkably began throwing pieces of it over the side”–an overblown description of the justices’ reception of Clement’s argument, and of his response.  Shortly thereafter, Greenhouse–in a prediction brazen even by Greenhousian standards–writes:

By the end of the argument . . . it seemed likely that the court would draw a road map for the appeals court to follow in expanding the procedural protections to the detainees.

Or, one might say, by the end of her article, Greenhouse was trying to tell Justice Kennedy what he should do.  What she didn’t have–as any reader of the argument transcript can see–was a basis for her tentative prediction.

Over in the Washington Post on Thursday, Robert Barnes’s coverage was considerably more measured.  He referred only to “some justices” being in search of “practical remedies” to the situation at Guantanamo–as though the Congress hadn’t provided such remedies already, and far better ones than enemy captives in wartime have ever been given.  But at least Barnes did not go out on a limb with an unsupported handicapping of the outcome.

Away from straight news reportage, in a zone where prediction is more appropriate, ABC’s Jan Crawford Greenburg devoted a long blog post to considering whether Justice Anthony Kennedy might surprise his liberal suitors by voting that Congress has provided the Gitmo detainees with adequate process that triggers no constitutional habeas concerns (even on the assumption that such concerns could be valid).  Greenburg argues, very interestingly, that Justice Samuel Alito’s line of questioning during the argument might bring Kennedy around.

I’ll make no prediction here.  Too much depends on the heart (not the head) of Anthony Kennedy for me to get into the handicapping business.  I know perfectly well what the Court should do, but not what it will.  What it should do (as David Rivkin and Lee Casey argue in Thursday’s Wall Street Journal) is forcefully reject these unprecedented claims that habeas rights be given to aliens captured in wartime and held outside the United States.

One thing’s sure about Wednesday’s argument.  The most oblivious question was framed by Justice Breyer (no surprise there), who restated the petitioners’ argument for them this way:

[W]e still think that Congress, the President, the Supreme Court under the law, cannot hold us for six years without either trying us, releasing us, or maybe confining us under some special statute involving preventive detention and danger which has not yet been enacted.

Huh?  Two statutes have already been enacted by Congress that do exactly what Breyer appears to think hasn’t been done: the Detainee Treatment Act and the Military Commissions Act.  Where’s Breyer been?

Another Nomination


Today the President nominated William E. Smith to the U.S. Court of Appeals for the First Circuit (LvHB).


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