Bench Memos

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Heroes and Scoundrels


I’ll turn shortly to the numerous Senate scoundrels in the Southwick confirmation process.  But let me begin by praising some heroes:  Senator Specter and his staff, who went to extraordinary lengths to make sure senators had available the real facts about Judge Southwick’s record; Senators McConnell, Cochran, and Lott, who worked tirelessly behind the scenes; and especially Senator Feinstein, who displayed her courage and character in standing up courageously to the jackals on her side who were maligning Judge Southwick. 


Also deserving praise are the 12 Democrats in addition to Feinstein who voted for cloture on the nomination:   Akaka, Byrd, Carper, Conrad, Dorgan, Inouye, Johnson, Lieberman, Lincoln, Nelson of Nebraska, Pryor, and Salazar.  (Carper, Inouye, and Salazar voted against Southwick on the final confirmation vote, but they nonetheless deserve credit for their vote on cloture.)


The Senate scoundrels are too numerous to name, but at the top of the list is Senate Judiciary Committee chairman Pat Leahy, who, by virtue of his position, had a special obligation to act responsibly but who instead compounded his endless lies and distortions with his usual smarminess.  Ditto for majority leader Harry Reid.  All the other Democrats who voted against cloture also belong in the Hall of Shame, but I’ll particularly identify a few who I mistakenly thought might have more courage and decency than they do:  Robert P. Casey, Jr. of Pennsylvania (a particular disappointment as his father was a hero of mine), Mary Landrieu of Louisiana, Jon Tester of Montana, and Jim Webb of Virginia.

Tags: Whelan

Confirmation of Judge Southwick


The Senate has just approved, by a vote of 59 to 38, Judge Leslie Southwick’s nomination to the Fifth Circuit.

Tags: Whelan


Cloture on Southwick Nomination


By a vote of 62 to 35, the Senate has just obtained cloture on Judge Leslie Southwick’s nomination to the Fifth Circuit.  The final confirmation vote, which will surely result in approval, is occurring now.


I suppose that this should be an occasion for celebration, but the campaign against Judge Southwick, including by leading Democratic senators, has been so vicious and dishonest that my primary reaction to the whole process remains one of disgust.  Judge Southwick has more integrity and character than all of his attackers combined, and it’s a shame that anyone would be so abused. 

Tags: Whelan

Cloture Vote on Southwick Nomination


The cloture vote on Judge Leslie Southwick’s nomination to the Fifth Circuit is set to take place on Wednesday at 11:00 a.m.  If cloture is obtained, the Senate will proceed immediately to a final confirmation vote. 


This CQ article—including the news that Senator Mark Pryor of Arkansas has said “he will vote for cloture and is leaving toward voting for confirmation of Southwick”—makes me cautiously optimistic that Southwick will be confirmed.  How many moderate, or moderate-posing, Democratic senators can afford to be to her Senator Feinstein’s left on this, especially when the campaign against Southwick has been such a pack of lies?

Tags: Whelan

Huffington Post, Not Washington Post


Checking out People for the American Way’s latest series of lies about Judge Southwick, I was surprised to run across an anti-Southwick op-ed from the Washington Post that I hadn’t seen before.  Well, contrary to what PFAW’s web page says, the supposed Washington Post op-ed is instead a Huffington Post blog entry (which, surprise, misrepresents the one case that it discusses).  I’ll assume that the error is a result of incompetence rather than mendacity, though the two so often go hand in hand at PFAW that it’s hard to tell the difference.  Just the usual course of events in the attack on Judge Southwick.


Update (7:55 p.m.):  That was fast:  PFAW has corrected its error.  Now if only it would correct all of its other flat-out errors about the Southwick nomination….  Clearly folks at PFAW know better but are persisting in their lies.

Correction:  The error, I now see, was on a Leadership Conference on Civil Rights web page that PFAW directly linked to, not on a PFAW page. 

Tags: Whelan


The Legacy of Borking


I don’t think anyone around here has noted that today is the twentieth anniversary of the 58-42 vote of the U.S. Senate to reject Ronald Reagan’s nomination of Robert Bork to the Supreme Court.  [Correction: Of course Ed noted this anniversary yesterday, in "This Week in Liberal Judicial Activism."]  My friend Gary McDowell has an excellent article in today’s Wall Street Journal on the lasting significance of that day of senatorial infamy.  As McDowell writes, “In an earlier day such an appointment would have been celebrated as adding breadth, depth and luster to the highest bench.”  Instead, terrified at the prospect that their grasp on political power through the medium of the judiciary might begin to slip away, “Mr. Bork’s opponents succeeded in making the fight over his nomination into a contest over the future of the Constitution.”

McDowell is right that we have paid a high price for the “fundamental transformation,” in the Bork battle, of the standards that had guided the conduct of participants in the judicial appointment process.  Not that previous appointments had always conformed to some coolly rational, neutrally professional set of norms among presidents and senators (and McDowell, once a student of Henry Abraham, our wisest historian of confirmations, knows this perfectly well).  But this is surely true: “Confirmation battles from Mr. Bork to Clarence Thomas to Samuel Alito have taken on the trappings of ordinary political campaigns, from instant polling to rallies and protests and attack ads.”

All that being said, I’ll note something McDowell doesn’t say (and I don’t know that he’d endorse).  A politicized appointment process is where we are, and where we’ll stay until what McDowell calls a “war for the Constitution” is won.  That means that the nominees of Democratic presidents must receive the closest scrutiny of senators who want to rescue the Constitution from the judiciary.  When McDowell notes the politicized confirmation battles from Bork to Thomas to Alito, what is conspicuously missing are the only nominations any Democratic president has had since Lyndon Johnson–the Clinton nominations of Ruth Bader Ginsburg and Stephen Breyer.  Arriving as they did on the field scorched by the fires of the Bork and Thomas nominations, these nominations were greeted by Republicans who should have done their best, even from the position of the minority party, to make the case against confirmation, but who instead offered only emollient noises–and votes to confirm.

Ginsburg and Breyer personify the “living” Constitution approach to which Robert Bork declared the opposition that cost him a seat on the Court.  This was known about them at the time.  Their appointments should have been defeated, in the name of a de-politicized Constitution.  And if defeat was not possible, then enunciating principled opposition would still have been useful.  Republicans in 1993 and 1994 had the crazy idea that something could be gained by soothing words and easy treatment of the nominees.  But what was needed then and is needed now is political partisanship on behalf of a Constitution that stands above, and neutrally between, parties and ideologies.  We will never, in our lifetimes, see such high-minded partisanship out of the Democratic Party.  Whoever is in control of the White House and the Senate in years to come, we need the Republican Party to prosecute the war for the Constitution, not to perpetually remain on defense.  Too much is at stake to play beanbag.

In short, bring on the litmus tests.

Architecture and the Constitution


I’m pleased to report that Allan Greenberg, America’s foremost classicist architect, will be speaking at the Ethics and Public Policy Center (the D.C.-based think tank I head) on “American Architecture and the Legacy of the Revolution” next Thursday, November 1.  In his book Architecture of Democracy (which my EPPC colleague Hadley Arkes reviewed in the always-interesting Claremont Review of Books), Mr. Greenberg explains that great American architecture “embodies the ideals of democracy for which our revolution was fought and our Constitution created.”  For more information and to register to attend, please see here.

Tags: Whelan

Southwick Floor Action


Senate majority leader Harry Reid said last Friday that Senate floor action on the nomination of Judge Leslie Southwick to a supposed Mississippi seat on the Fifth Circuit may occur as early as tomorrow.  As this article indicates, it’s unclear at this point whether Democrats will try to filibuster the nomination and, if so, whether they would have the votes to succeed.


The vicious campaign of lies and distortions against Judge Southwick is all the more difficult to fathom because Judge Southwick—unlike, say, the previous nominee for the seat, Michael B. Wallace (and unlike other nominees I won’t name who have received a pass from the Left and been confirmed without controversy)—is not a figure in conservative circles.  What Judge Southwick is, from all the available evidence, is a fine judge of strong intellect and sterling character who is amply qualified (as the ABA’s unanimous “well qualified” rating attests) for the position to which he has been nominated. 


I haven’t reviewed Judge Southwick’s judicial record beyond the cases that the Left has misrepresented.  Folks like me who are making the case for his confirmation are doing so out of a conviction that the lies of the Left should not defeat a good and decent and fully qualified nominee, not from any belief (much less a well-founded belief) that Judge Southwick will be a champion of conservative jurisprudential principles.

Tags: Whelan

Media Double Standard for Ginsburg?


From the Atlanta Journal-Constitution


U.S. Supreme Court Justice Ruth Bader Ginsburg made clear her perspective on some issues when she spoke Sunday at an Atlanta synagogue.…  The justice said she did not expect the court to overturn Roe v. Wade, the decision that made abortion a constitutional right. But she contended that even if the court disposed of the right, abortion would still be widely available.  The difference would be that middle-class women would be able to travel to a state that allowed the procedure, while poor women would be trapped — much as in the days before Roe v. Wade, when a woman who could afford to do so could go to New York, California or Hawaii to have an abortion.  “It would have a devastating impact on poor women,” she said of any reversal of the 1973 decision.


Now imagine this hypothetical story:


U.S. Supreme Court Justice Antonin Scalia made clear his perspective on some issues when he spoke Sunday at a Catholic church in Atlanta.…  The justice said he expected the court to overturn Roe v. Wade, the decision that made abortion a constitutional right. But he predicted that if the court disposed of the right, abortion would still be widely available.  The difference would be that the people of many states would support the enactment of  permissive abortion laws.  “Abortion will continue to have a devastating impact on unborn babies,” he said.


Perhaps my parallel isn’t exact, but any comments by Scalia comparable to Ginsburg’s would be prominent news in the nation’s national papers, would be criticized by supposed legal ethicists, and would elicit scathing editorials condemning his violation of the Establishment Clause and calling for him to recuse himself from abortion cases.  I am not contending that Ginsburg’s remarks deserve that full response, though they do seem strikingly politicized and inappropriate—and well beyond actual remarks by Scalia that have been treated as far more controversial. 

Tags: Whelan

This Week in Liberal Judicial Activism—Week of October 22


Oct. 22      1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty?  Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short.  The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause. 

Undeterred, in Foster v. State Florida chief justice (and, since 1993, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation.  Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution.  And there are no apparent limits to the statistical evidence that she regards as relevant:  “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible.  In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office.  There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes.  As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.” 


Oct. 23      1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.


Oct. 25      1957—No case is too easy for a liberal judicial activist to mess up.  In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery.  What was that evidence?  As Judge David L. Bazelon, in dissent, summarizes it:  “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.”  “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”!  In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery. 

— Who knew that the Declaration of Independence was a declaration of same-sex marriage?  Echoing the Declaration of Independence, the New Jersey constitution provides:  “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”  Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples. 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Foolishness Indeed


The title of George Will’s column today is “Line-Item Foolishness,” and to save you time and trouble I can point out which foolish parts of the column you may safely skip, as they add nothing to (and sometimes detract a good deal from) Will’s argument against the line-item veto.

The column has eleven paragraphs.  Skip paragraphs 5, 6, 7, and 10, and you have a pretty decent case against the practical utility of the line-item veto.  But the paragraphs just mentioned venture into constitutional argumentation that is underdeveloped, confused, and historically tendentious.  Will’s silliest argument (in paragraph 10) is that we know the Constitution establishes legislative supremacy because Article I is longer than Article II.  This is actually evidence for the opposite proposition–that the framers were concerned chiefly about restraining legislative power and so wrote grants of power and limits on power with more detail in Article I, while Article II is more open-ended in order to attain one of the Constitution’s most notable objects, the world’s first truly powerful republican executive.  As Madison put it in Federalist 48, the chief failing of all previous republics had been the tendency of the legislative power to “draw[] all power into its impetuous vortex.”

For Southwick Nomination Junkies Only


I confess that I am so outraged at the lies being told about Judge Southwick that I have responded at some length (see comment 39 here) to the latest version posted by a commenter to The Board’s/NYT’s smear (which I critiqued here).  I suppose that it counts as progress that those attacking Judge Southwick over the Richmond case have gone from falsely claiming that the Mississippi supreme court reversed the opinion that he joined (when it in fact agreed that termination was not an appropriate remedy) to falsely claiming that that court employed a more outraged tone. 


If there is a filibuster attempt on this nomination (filibuster by the majority party?!?), Senate Republicans had better be ready not only to defend Southwick’s record but also to contrast it with the laughable records of Clinton nominees—Rosemary Barkett, Lee Sarokin, and others—whom Senate Democrats heartily supported. 

Tags: Whelan

Who You Callin’ a Catholic Judge?


Justice Antonin Scalia spoke at a conference at Villanova’s law school a couple days ago, and among other things addressed the impact of his Catholicism on his judging.  Namely, no impact at all.  Joe Knippenberg at NLT has all the links.

About That Shield Law


Bill Bennett has been talking constantly about this issue, for two days straight, and today Seth Leibsohn and Andy McCarthy weigh in on the House bill that would relieve journalists (the “professional” ones, anyway) of their civic duty to provide evidence and testimony in leak investigations and other criminal cases.  (See also Gabriel Schoenfeld at the Weekly Standard.)  Herewith some further thoughts.

One of the arguments employed by backers of shield laws is that a journalist-source privilege is like other kinds of privilege we already respect in courts of law: spousal, priest-penitent, attorney-client, and doctor-patient.  But it’s not like those other privileges at all.  The word “privilege” derives from the Latin for a private or peculiar law, in other words a rule advantaging a peculiarly private space or relationship and (in our present context) shielding it from prying eyes.  But the essential thing is that the shield is put in place for the sake of a private relationship that will not flourish otherwise.  It is not exactly true that a public good is the object of the privilege, unless it is the public good of not making everything a public concern–of preserving the integrity and purposes of the private relationships in question.

Because we honor and wish to preserve the intimacy and union of husband and wife as essential to the family itself, we have a spousal privilege in many legal contexts.  Because the penitent bares his soul to the priest, we respect a sacred space in the confessional by not asking the priest to divulge what is said there.  Because the good of the patient’s health is the purpose of the doctor-patient relation, we shield the doctor from testimonial requirements.  And because attorneys can only represent their clients effectively if the latter are candid in ways they would not dare to be in public, we honor this privilege too.  In each case the party shielded–spouse, priest, doctor, lawyer–would be privy to evidence of a crime only incidentally to the relationship honored in the privilege.  And the party whose interests are protected by the shield–the other spouse, the penitent, patient, or client–is vulnerable to having the purposes of the private relationship frustrated or destroyed if the shield is withdrawn.

In practically no way is a journalist-source privilege assimilable to these others.  The relationship is established not for private purposes but for a public one.  No private benefit is given or received.  The source and reporter often claim a high-mindedness for themselves, but it is a claim to be benefitting the public, not the pecular interests of one or both parties in a relation whose private integrity is the core principle at stake.  The point of the encounter between the journalist and the source is to tell a secret, not to keep one.  All that the journalist wishes to shield is his source’s identity–the one fact nearly always known in the other relationships to which privilege attaches.  The vulnerability of a source, protected by a journalist’s privilege, is frequently the vulnerability of a criminal (or at least of a disloyal betrayer of secrets his superiors expected him to keep).  And the crime or betrayal was the purpose of establishing the relationship with the journalist.  The leaker whom the reporter protects is a breaker of oaths, and any obligation the reporter takes on to keep an oath to the leaker is not one the rest of us are bound to respect.

Finally, apart from the spousal privilege, which is a reciprocal one between equals, all the other legitimate privileges are one-way relationships, in which one party receives a benefit the other gives.  The penitent receives reconciliation, the patient receives medical care, the client receives legal counsel.  The benefactors (priest, doctor, lawyer), in terms of strict principle, give all and receive nothing in the relationship.  Where does the reporter stand in the relationship with his source?  As the beneficiary as much as or more than as the benefactor.  Reporter and source strike a bargain of mutual self-interest, the source’s axe to grind serving the reporter’s Pulitzer hopes or ideological agenda, and vice versa.  When the interests of justice and national defense are frustrated by covering this with a veil of secrecy, it’s a corrupt bargain indeed.  And it certainly does not deserve the solicitude of the U.S. Congress.

Re: Board Crazy?


Perhaps someone at Morgan Stanley has read The Board (the new blog of the New York Times’s editorialists)?  From Bloomberg:


Morgan Stanley, the second-biggest shareholder in New York Times Co., sold its entire stake today, … sending the stock to its lowest in more than 10 years.…  New York Times shares slid 48 cents, or 2.5 percent, to $18.43 at 12:44 p.m. in New York Stock Exchange composite trading and fell as low as $18.28, a level not seen since January 1997.

Tags: Whelan

Board Crazy?


I’ve learned from How Appealing that the editorial board of the New York Times has just launched its own blog, The Board.  Let’s examine The Board’s initial post, which criticizes Senator Feinstein for her committee vote in favor of the nomination of Judge Leslie Southwick to the Fifth Circuit.


The Board’s central assertion is that Judge Southwick’s record “includes decisions that have been labeled anti-black and anti-gay.”  Well, it’s certainly true that the New York Times and others on the Left have so labeled the decisions, but, as I have shown time and again (see this essay for an overview), those labels are grossly unfair.  Judge Southwick properly applied governing law and applicable precedent in the decisions at issue, and I haven’t seen anyone go beyond flinging epithets to present a serious argument that his reasoning was legally defective.


Contending (without citing any supporting evidence or alleged legal error) that Judge Southwick “is strongly pro-business, and generally rules against employees,” The Board snidely states:


But he found an employee to rule for when a white Mississippi social worker was fired for calling a black colleague “a good ole nigger.” He accepted the white worker’s claim that her use of the slur was “not motivated out of racial hatred or animosity directed toward her co-worker or toward blacks in general.”


In fact, neither Southwick nor the en banc majority opinion of the Mississippi court of appeals that he joined “accepted the white worker’s claim that her use of the slur was ‘not motivated out of racial hatred or animosity directed toward her co-worker or toward blacks in general.’”  Southwick’s court was reviewing the decision of a state administrative agency that the white worker’s use of the racial epithet did not justify termination of her employment.  The narrow, and highly deferential, legal question before the court was whether, under its “limited scope of review,” there was substantial evidence in the record to support the agency’s decision.  The majority concluded there was, and, on review, the state supreme court majority agreed with Southwick’s court that termination was not an appropriate remedy.  Further, the opinion that Southwick joined, far from condoning the racial slur, expressly stated that the “unwarranted use by a state employee of any inflammatory or derogatory term when referring to or directly addressing a co-worker is an action that cannot be justified by any argument.”  So much for an “anti-black” decision.  (For more evidence refuting the baseless—and therefore vile—insinuation that Judge Southwick is racist, see here and point 1 here).


Let’s turn to the supposedly “anti-gay” decision, which the Board calls “Judge Southwick’s horrendous child custody ruling, which showed a clear animosity toward gay people.”  The Board states: 


Judge Southwick also joined another decision taking a child away from a mother because she was bisexual. Adding insult to injury in that case, he signed a concurring opinion that attacked the mother for her “decision to participate in a homosexual relationship” and told her that losing her baby was one of the possible consequences of her “exertion of her perceived right.”


Now for the facts:  Southwick’s court was reviewing the lower court’s decision to award custody of a child to the child’s father.  The majority opinion that Southwick joined applied binding Mississipi supreme court precedent in ruling that it was proper for the lower court to consider the mother’s lesbianism as a factor in the child-custody determination.  The concurring opinion of Judge Payne that Southwick also joined did not “attack[]” the mother in any respect.  Rather, Judge Payne responded to an argument made in the dissenting opinion:  “I write separately because I feel the dissent has delved into an area where our State legislature has made clear its public policy position relating to particular rights of homosexuals in domestic relations settings.”  The particular quotes that the Board somehow finds so offensive provide a neutral and accurate statement of how “the legislature’s unambiguous rules [interact] with our established case law rules.”  So much for “anti-gay” animus.  (See here for more details on this case.  Also, the good folks at ConfirmThem have posted the contested opinions here.)


The Board contends that Judge Southwick “is just the sort of Bush judicial nominee everyone thought would be blocked when Democrats retook the Senate.”  Even by the Times’s standards, that’s rather brazen revisionist history.  Judge Southwick was instead just the sort of consensus nominee that Senate Democrats were calling for.  The Senate Judiciary Committee had already previously approved him for a district-court seat, and the ABA unanimously gave him its highest “well qualified” rating for the Fifth Circuit spot.  No one anticipated any controversy over the nomination until the Left launched its baseless smear attacks on the eve of the confirmation hearing.


Not surprisingly, The Board has demonstrated in its inaugural post the same combination of mendacity, obtuseness, and bias (though it’s sometimes difficult to parse the contributions of each) that mark the Times’s house editorials. 

Tags: Whelan

A Legend Passes


University of Chicago Professor David P. Currie (1936 – 2007) passed away yesterday.  He was, without a doubt, the finest Constitutional Law professor in the country, and one of the most remarkable scholars from whom I had the distinct honor and privilege to take classes.  His Constitution in the Supreme Court: The First Hundred Years  and The Second Hundred Years stand as testaments to his remarkable contribution to the study of law.  He will be missed.

This Week in Liberal Judicial Activism—Week of October 15


Oct. 15      1956—So much for basing Supreme Court selections on short-term political calculations.  Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.  That decision appears to have been as unnecessary as it was foolish:  Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college.  And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.


Oct. 16      1898—William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota.  (See This Week entry for April 4, 1939, for Judge Richard A. Posner’s colorful summary of Douglas’s life and career.)


Oct. 20      2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court.  Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election.  In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.


Oct. 21      1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit.  With a  lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status.  On his death in 1983, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent:  “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.”  The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship:  In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants.  Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.”


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Attacking Clarence Thomas and Proving Him Right


In today’s Washington Post Outlook section, Georgetown law professor Emma Coleman Jordan gives a perfect demonstration of what it means to wear ideological blinkers.  Here’s a precis of her argument: Clarence Thomas complained of a “high-tech lynching” in the Senate Judiciary Committee sixteen years ago.  His book suggests that his background and his experience should give him some insight into the very real lynchings that used to occur in the American South.  But his legal opinions in opposition to every kind of racial preference in favor of blacks support the conclusion that he is not really concerned about their plight at all; he is a hypocrite who cares only about “lynching” when it happens to him.

Yes, that’s her argument–if “argument” is what you want to call it.  Jordan’s take is the sort of implicitly racist view of black Americans to which Clarence Thomas’s memoir is a rebuke–as is the whole life he recounts in that book.  For Jordan, there is just one way a black can view racial preferences–her way, the liberal way, in favor of them.  No other response is adequate or appropriate as a response to the black experience in America.  Certainly for a black person, there is no other recourse aside from endorsing racial preferences that can make his blackness intelligible and coherent.  There is just one way to think black, to be black–and Clarence Thomas deviates from that one way.  Hence his complaints long ago about a “lynching” ring hollow and false for Jordan.

Never mind that Jordan’s argument is also feeble for a law professor.  She evinces not the slightest interest in what the Constitution or the civil rights statutes permit or forbid.  For her, it’s all about results.  But on that score she simply fails to meet Thomas’s argument on the ground he has so ably staked out.  As he cogently argues, what Jordan calls “remedies designed to right discriminatory wrongs” have just replaced one discriminatory wrong with another, and harm those they are ostensibly designed to help.  While Jordan quotes Thomas’s book once or twice, it’s hard to believe she’s actually read it.  Or if she has, its argument has gone right past her without leaving a mark on her consciousness.  In her Post article, she doesn’t even acknowledge the existence of Thomas’s argument, let alone attempt to refute it.  All she can manage is the racist non sequitur of saying, in effect, ”the black man who says ‘lynching’ must say ‘racial preferences.’”

Maybe if Jordan can’t take the time to read Thomas’s book to find his argument (which can be found almost anywhere the book is opened at random), she could read Shelby Steele’s beautifully composed and deeply wise article on Thomas’s book in the latest NR.  If I could make a suggestion to Justice Thomas and his publishers, it is that Steele’s article should be reprinted as a foreword in the paperback edition of the memoir.

Upcoming Yale Law School Event


Next Monday evening, October 15, I will be taking part in a discussion at Yale Law School with Yale law professor Robert C. Post on “Judging the Roberts Court”.  Professor Post and I will be presenting our competing frameworks for assessing the Court and will be discussing contested issues and cases in the context of those frameworks.  (Here’s a recent New Republic essay, co-authored by Prof. Post, that urges the Left to develop modes of constitutional interpretation that vindicate progressive values.)


The discussion, which is sponsored by the Yale chapter of the Federalist Society, will begin at 6:10 p.m. in Room 129 in the Sterling Law Building.  For more information, contact Claire McCusker at [email protected].

Tags: Whelan


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