Tags: Whelan


Text (which I introduced here) is a valuable and ever-expanding one-stop repository of information and commentary on the Kagan nomination.  Check it out.

Tags: Whelan

Andrew Sullivan’s Question About Kagan


Andrew Sullivan wants to know whether Elena Kagan is “gay,” and he complains that “no one in the administration will tell us definitively.”  But the White House has already emphatically rejected that rumor about Kagan, and I see no reason not to accept its word on the matter.  I’ll add that several folks who know Kagan well have made clear to me that they’re confident that the rumor is false. 

Kagan—like many other folks, both straight and gay—has been vocal in support of gay rights.  In the realm of gay rights as in other realms, the issue that ought to be central to the merits of her nomination is whether she will separate her interpretations of the law from her policy preferences.  It is on that score that I have my serious doubts (as outlined in point 6 of this post and the links therein).

Tags: Whelan

On Robert Clark on Kagan and the Military


In today’s Wall Street Journal, Robert C. Clark, Elena Kagan’s predecessor as Harvard law school dean, offers his defense of Kagan’s treatment of military recruiters.  A few comments:

1.  Clark undertakes to defend Kagan from the general charge that (as he summarizes the charge) Kagan “showed herself to be antimilitary—an extremist bent on harming the military’s efforts to hire some of the best law school graduates in the country.”  I’ll highlight that my own critique (like that of many other folks) does not rest on Kagan’s subjective attitude toward the military.  Rather, as I’ve put it:

Kagan’s exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because—as Peter Beinart, the liberal former editor of the New Republic, has written—it amounted to “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.”  In her fervent opposition to the Don’t Ask, Don’t Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.  At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.

Clark’s piece does not undertake to address this category of critique.

2.  Clark’s core defense of Kagan is that she “basically followed a strategy toward military recruiting that was already in place.”  That’s evidently true of her initial course of action as dean, beginning in 2003:  While vehemently condemning Don’t Ask, Don’t Tell as “a profound wrong—a moral injustice of the first order,” Kagan permitted military recruiters to avail themselves of the resources of the law school’s jobs office, lest, under the Solomon Amendment, Harvard lose its hundreds of millions of dollars in federal funding.  That approach followed the course that Clark had adopted in 2002. 

But Clark’s account appears to obscure the change that occurred in November 2004, when, in the aftermath of a Third Circuit ruling against the Solomon Amendment, Kagan barred the military recruiters from making use of the law school’s jobs office.  Clark presents that change as a return to the law school’s “pre-2002 practice.”  But what had changed since 2002, by Clark’s own account, is that the military no longer accepted what Clark euphemistically calls the law school’s “special” (i.e., discriminatory) treatment of it.  In other words, the pre-2002 practice evidently occurred with the military’s acquiescence.  What Kagan did is exclude the military recruiters over their vigorous objections.

Kagan’s own account of her November 2004 decision to bar the military recruiters from the law school’s jobs office is that she “hope[d] … that the Department [of Defense] would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood.”  Only after DOD refused to acquiesce did she (in September 2005) permit military recruiters to make use of the law school’s jobs office.

3.  Clark contends that the “practical effect on recruiting logistics” of barring military recruiters from using the law school’s job’s office was “minimal” since the military could still recruit via the law school’s veterans association.  But the reality appears to have been very different from Clark’s account.  Here’s Tom Goldstein on the veterans association’s response to Kagan’s November 2004 decision (emphasis added):

The veterans group responded that it would attempt to coordinate recruitment to some extent by email, but it cautioned that it had “declined interim options to establish formal liaison relationships, sponsor regular on-campus military recruiting fairs, coordinate interviews extensively, or perform other equivalent functions. Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events. Moreover, such copious involvement would dramatically constrict our ability to organize other, non-recruiting events.  The above email address falls short of duplicating the excellent assistance provided by the HLS Office of Career Services. We sincerely hope, however, that it satisfies some needs of our interested classmates and that they feel entirely comfortable in approaching us as peers.”

In other words, it appears that Kagan’s decision to bar military recruiters from using the law school job’s office was, in practice, the substantial equivalent of kicking them off the campus altogether.  By rough analogy:  Kagan didn’t even permit military recruiters on the back of the bus; rather, she told them to go hitch a ride. 

Tags: Whelan

Elena Kagan on a Federal Constitutional Right to Same-Sex Marriage


Today’s Washington Post appears to repeat the Wall Street Journal’s recent error of asserting that Elena Kagan has expressed her legal opinion that the Constitution should not be construed to confer a right to same-sex marriage:

It was clear during Kagan’s confirmation hearings last year that lawmakers recognized she might one day be sitting before the committee as a Supreme Court nominee. She ventured only safe answers that were built on respect for the court’s precedents rather than her own reading of the law or the Constitution.
She did say that she did not believe there was a constitutional right to same-sex marriage and that she was not “morally opposed” to capital punishment.

This error is understandable because Kagan’s initial evasive written response seemed designed to mislead the reader into thinking that was what she was saying.  Pressed to clarify, Kagan stated (in a March 18, 2009 letter to Senator Specter, at pages 11-12):

Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives.  By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

In other words, Kagan was saying only that the courts haven’t yet invented a federal constitutional right to same-sex marriage. 

Tags: Whelan

Not the NASCAR Justice


In addition to her kicking military recruiters off Harvard’s campus during wartime and being paid for a comfy position on a Goldman Sachs advisory board, this passage (from this article) nicely captures Elena Kagan’s remoteness from the lives of most Americans:

Kagan … is such a product of New York City that she did not learn to drive until her late 20s. According to her friend John Q. Barrett, a law professor at St. John’s University, it is a skill she has not yet mastered.

(My fuller account from early this morning of my initial thoughts on the nomination is here.)

Update:  Believe it or not, a slew of bloggers somehow imagine that I think that it matters whether or not Kagan is a good driver.  (See, e.g., “Ed Whelan smears New Yorkers in attack on Kagan”—yes, more Media Matters idiocy.)  As the linked post above will show, I’m ridiculing the mismatch between President Obama’s populist rhetoric (which I think is misguided and insincere) and the reality of the Kagan pick.

Tags: Whelan

Supreme Court Nominee Elena Kagan


It’s now being widely reported that later this morning President Obama will announce his decision to nominate Elena Kagan to the Supreme Court.  Drawing on my many previous posts, I offer some initial comments on a Kagan nomination:

1.  I have plenty of respect for Kagan’s intellect and ability, and she deserves considerable credit for her tenure as dean of Harvard law school, including for her generous treatment of conservatives, which has earned her considerable goodwill.  But …

2.  Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more.  In addition to zero judicial experience, she has only a few years of real-world legal experience.  Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship.  Kagan flunks her own “threshold” test of the minimal qualifications needed for a Supreme Court nominee.

3.  There is a striking mismatch between the White House’s populist rhetoric about seeking a justice with a “keen understanding of how the law affects the daily lives of the American people” and the reality of the Kagan pick.  Kagan is the consummate Obama insider, and her meteoric rise over the last 15 years—from obscure academic and Clinton White House staffer to Harvard law school dean to Supreme Court nominee—would seem to reflect what writer Christopher Caldwell describes as the “intermarriage of financial and executive branch elites [that] could only have happened in the Clinton years” and that has fostered the dominant financial-political oligarchy in America.  In this regard, Kagan’s paid role as a Goldman Sachs adviser is the perfect marker of her status in the oligarchy—and of her unfathomable remoteness from ordinary Americans.

4.  Kagan’s record thus manages to replicate the primary supposed defect of the judicial monastery—isolation from the real-world lives of ordinary Americans—without conferring the broader benefits of judicial experience. 

5.  Kagan’s exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because—as Peter Beinart, the liberal former editor of the New Republic, has written—it amounted to “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.”  In her fervent opposition to the Don’t Ask, Don’t Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.  At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.

6.  Kagan has argued that the Senate should carefully explore a nominee’s views on judicial philosophy generally and on hotly contested constitutional issues in particular.  Her argument has special force for someone who has been so guarded about her own views.  Indeed, its force is all the greater since Kagan has indulged her own ideological views in the one area, gay rights, in which she has been vocal:  as law school dean, Kagan embraced an utterly implausible reading of the Solomon Amendment, and as Solicitor General, she has acted to undermine the Don’t Ask, Don’t Tell law and the Defense of Marriage Act that she is dutybound to defend. 

7.  Kagan shows signs of moderation on issues of presidential power and national security.  But there’s no basis for hopes that she might secretly harbor conservative legal views on other matters.   

8.  Kagan’s records from her White House years in the Clinton administration promise to offer important insights into her legal thinking.  It makes no sense to schedule her confirmation hearing until it’s clear when those records will be made available.

Tags: Whelan

Kagan’s Pragmatism? No, Cheap Moral Posturing


An article in today’s New York Times—“Potential Court Pick Faced Dilemma at Harvard”—tries to paint former Harvard law school dean Elena Kagan as a “pragmatist” for railing vehemently against the Don’t Ask, Don’t Tell law while being careful not to jeopardize the flow of hundreds of millions of dollars of federal funds to Harvard.  I think that it’s far clearer that she was just engaging in cheap and contemptible moral posturing.

If Kagan genuinely believed that the Don’t Ask, Don’t Tell law was “a profound wrong—a moral injustice of the first order,” why would she make herself complicit in implementing the grave evil?  Yes, of course, it’s true, as the article points out, that “barring the recruiters would [have] come with a price.”  But, as George Bernard Shaw would have said to Kagan for selling out her supposedly deeply held principles, “We’ve already established what you are, ma’am. Now we’re just haggling over the price.”  (My point isn’t that Kagan deserves the Bernard Shaw slam—she doesn’t—but rather that she evidently doesn’t believe her own rhetoric.)  [See update below.]

It’s also worth emphasizing that what Kagan mischaracterized as the “military’s policy” is in fact the Clinton administration’s implementation of a provision of the defense-appropriations law that a Democratic-controlled Congress enacted in 1993 (with Clinton’s signature).  Instead of taking potshots at military recruiters who were merely complying with the law, did Kagan ever exclude from campus any of the politicians responsible for the law?  Of course not.  Indeed, whatever moral opposition Kagan had to the law when it was adopted didn’t deter her from seeking and obtaining employment in the Clinton White House.  Nor will it keep her from palling around with the many senators who voted for it, such as Vice President Biden.*

Kagan engaged in her cheap moral posturing in the aftermath of 9/11, at a time when American soldiers were at war defending our freedom.  She elevated her own ideology above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.  As Peter Beinart, the liberal former editor of the New Republic, has written in condemning Kagan’s exclusion of military recruiters from campus:

You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.

*Still-sitting Democratic senators who voted for the law include Akaka, Baucus, Bingaman, Byrd, Conrad, Dodd, Feinstein, Harkin, Inouye, Kerry, Kohl, Leahy, Levin, Lieberman, Mikulski, Murray, Reid, and Rockefeller.  (Baucus, Byrd, Conrad, Kohl, Reid, and Rockefeller also voted against an amendment to leave policy on the matter in the discretion of the president.)

5/9 Update:  I see that some lefty bloggers (such as this one) have taken, or feigned, offense at my use of the Bernard Shaw quip.  Set aside the fact that the broader point of my post is that Kagan surely doesn’t believe her own extremist rhetoric (not that she believes it but is willing to sell her principles away).  The Bernard Shaw quip is widely used in political discourse (here’s just one example) to criticize someone for selling out; it obviously doesn’t carry (and in my case certainly wasn’t intended to carry) the particular stigma that a narrowly literal understanding would convey.

Tags: Whelan

Elena Kagan as “The Next Harriet Miers?”


That’s the title and theme of law professor Paul Campos’s critique of Elena Kagan and her legal scholarship.  Some excerpts:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews.…
At least in theory Kagan could compensate somewhat for the slenderness of her academic resume through the quality of her work. But if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications. Kagan’s scholarly writings are lifeless, dull, and eminently forgettable. They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it’s unlikely to offend anyone in a position of power.

Tags: Whelan

Joseph Ellis’s Misconceived Attack on Originalism


In a woefully confused op-ed in the Washington Post, historian (and notorious fabricator) Joseph J. Ellis once again fabricates his own straw-man misconception of originalism so that he can take some ill-informed whacks.  Two quick and elementary observations:

1.  Ellis attacks the “constitutional doctrine of original intent.”  He is apparently unaware that the original-meaning approach has long been dominant among originalists and that it is the approach that Justices Scalia and Thomas advocate.  The original-meaning approach doesn’t look to the subjective intentions of the Framers, and it is thus immune from Ellis’s central attack.  (Ellis contends that Chief Justice Roberts and Justice Alito also “believe in [the doctrine of original intent], or some version of it,” but neither, I believe, has fully embraced any version of originalism.)

2.  Ellis asserts that originalism “rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths.”  That’s nonsense.  As law professor Lawrence Solum has explained (and as I have attempted to show in this essay), “The core of originalism is based on common sense about the meaning of the constitutional text and the nature of law.” 

Ellis obviously doesn’t understand that the originalist approach applies not just to the original Constitution, and not just to the various amendments that have been adopted over time, but also to statutes enacted by every Congress.  In short, it’s not at all dependent on any assumption about the wisdom of any set of legislators.

Tags: Whelan

More Media Matters Mess


In response to my blog posts showing that, jurisprudentially speaking, Ninth Circuit judge Sidney Thomas is just Stephen Reinhardt in a cowboy hat, Media Matters has a post titled “Note to media:  Don’t trust attacks on judicial nominees by NRO’s Whelan.” 

Has Media Matters identified a single error in any of my posts?  No.  Instead, it offers two feeble lines of attack. 

First, Media Matters asserts that “Whelan’s comments [on Thomas’s general jurisprudential approach] are contradicted by statements from Thomas’ colleagues.”  But the only comments that it cites from a Ninth Circuit colleague are milquetoast statements from Chief Judge Kozinski, such as that Thomas “is respected by both sides” and is liked and trusted.  Earth to Media Matters:  How does that contradict anything I’ve written? 

Media Matters also cites a quote from a Montana district judge that Thomas “has never let his politics get in the way of sound judgment.”  What evidence is there that that district judge has familiarized himself with the controversial aspects of Thomas’s record?  And how would he explain Thomas’s far-Left rulings?

Second, addressing itself obliquely to only one of the nine cases of Thomas’s that I’ve addressed, Media Matters thinks it’s meaningful to establish that “GOP-appointed judges have given schools broad leeway to restrict derogatory speech.”  (Gee, really?)  But the distinct concern that the case raised (and that completely eludes Media Matters) is that Thomas and Reinhardt were approving of viewpoint-discriminatory restrictions.  Here’s what I wrote in my summary (point 1 of this post): 

As Judge Alex Kozinski argued in dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.”  But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.

For what it’s worth, I’m not asking anyone simply to “trust” my critiques.  The reason that I carefully document what I write (with citations and hyperlinks) is so that the skeptical or hostile reader can learn for himself that my account is accurate.  Plus, as regular readers know, I openly acknowledge and correct any errors that I make.  I’m pleased to note that many in the media have learned over time that, whether or not they agree with my jurisprudential perspective, they can trust me to set forth the facts and law accurately.  I’d be surprised if anyone trusts Media Matters to do the same.

Tags: Whelan

Re: President Obama and the Concept of Judicial Restraint


In an op-ed today in Politico, JCN’s Carrie Severino nicely exposes President Obama’s cynical effort to run away from his lawless “empathy” standard for Supreme Court justices and to disguise himself as a supporter of judicial restraint.

Tags: Whelan

Re: Freeing the Constitution from the Judges


It’s been a busy week for constitutional commentary on NRO, and I’ve had trouble keeping up.

On Monday, Matt called attention to Robert Lowry Clinton’s fine NRO essay, “Judicial Supremacy and the Constitution” (as well as to a symposium in the current issue of National Review, which I’m looking forward to reading).  Today on NRO, Clinton provides an excellent companion piece, “The Marbury Myth.”  As he puts it, “While it is true that Marbury provides a basis for judicial review—the Court’s power to invalidate laws in a limited range of cases—it provides no support whatever for judicial supremacy.”  Among his many interesting observations:

It was not until 1895 that the Court first cited Marbury as a precedent for judicial review of national law, despite having invalidated some 20 congressional acts by that time. Stop and think for a moment about what this means: The case that is used as the leading precedent for modern judicial supremacy was not even regarded as an instance of judicial review until 92 years after it was decided!

I’m reminded that one good thing to come out of the American Bar Association’s badly confused report opposing presidential signing statements was Laurence Tribe’s acknowledgment that Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.” 

The myth of judicial supremacy has, of course, made it easier for the Supreme Court to usurp the fundamental liberty of American citizens to engage in self-government through our elected representatives.  In this regard, I’d highly recommend Gerard V. Bradley’s NRO essay from yesterday, “Liberty and the Supreme Court,” which discusses the infamous “mystery” passage from Planned Parenthood v. Casey and the Court’s broader hollowing out of the concept of liberty.

Tags: Whelan

Aron-neous Analysis of the Roberts Court


In an op-ed in Politico, Nan Aron of Alliance for Justice contends that the “Roberts court has repeatedly placed corporate interests first and the rights of individuals second.”  She refers readers to an “in-depth analysis” by AFJ, which turns out to be all of seven pages.

It turns out, alas, that Aron’s evidence is laughably thin.  Let’s consider Aron’s claims:

1.  Here’s Aron’s lead piece of evidence:  “In the 2006-07 term, for example, the Roberts court heard 30 business-related cases and at least 22 — or 73 percent — were decided in favor of large corporations.”  But a quick glance at AFJ’s “in-depth analysis” reveals (on page 2) that all 22 of these cases “were decided unanimously … or with just one or two dissenting votes.”  So evidently Justice Stevens, whom the “in-depth analysis” lauds as “a staunch protector of the rights of ordinary Americans faced with unchecked corporate and government interests” has been in on the conspiracy.  And so have Justices Ginsburg, Breyer, and Souter.  Or maybe, just maybe, the Court got the law right.

2.  Aron asserts that a “litany of cases heard by the Roberts court, and often decided by 5-4 votes, demonstrates this rightward, pro-Big Business tilt.”  She then offers five examples:

a.  Her first example is the Court’s 2008 decision in Riegel v. Medtronic, Inc., which held that the pre-emption clause in a federal law barred common-law claims challenging the safety or effectiveness of a medical device marketed in a form that received premarket approval from the FDA.  The Court’s ruling was 8-1, with only Ginsburg in dissent.  But, of course, Aron doesn’t disclose that unhelpful fact.

b.  Her second example is the Court’s 2008 decision in Exxon Shipping Co. v. Baker, which held that a punitive damages award against Exxon was excessive as a matter of maritime common law.  The majority opinion in the 5-3 case was written by Justice Souter, a fact that Aron doesn’t disclose.  She also wrongly asserts that the ruling allowed Exxon to “escape full financial liability” for the Exxon Valdez oil spill, as the ruling involved punitive damages, not compensatory damages.  Nor, of course, does she acknowledge that outside the narrow realm of maritime law, the alignment of the justices does not fall along ideological lines, as Justice Scalia and Justice Thomas are the strongest adherents to the position that the Constitution does not limit the size of punitive-damages awards.

c.  Aron claims that two decisions “left many waterways no longer protected by the Clean Water Act.”  But in Rapanos v. United States the plurality opined merely that “ordinarily dry channels through which water occasionally or intermittently flows”—hardly what one would think of as “waterways”—were beyond the scope of federal regulatory authority under the Clean Water Act.  In addition, the concurring opinion—which, in the absence of a majority ruling, became the controlling authority on the lower courts—took a more expansive view of federal regulatory authority.  The other decision, which was a 2001 ruling of the Rehnquist Court (not the Roberts Court), ruled merely that federal regulatory authority over “navigable waters” did not extend to “nonnavigable, isolated, intrastate waters.”  [Update (5/5, 4:15 pm):  I’ll note that I’ve tweaked the second sentence of this paragraph to eliminate an ambiguity and have added the third sentence.]   

d.  Aron complains that the recent Citizens United campaign-finance ruling “opened the floodgates of unlimited corporate spending in federal elections.”  That’s not true:  prohibitions on direct corporate contributions to candidates (as opposed to independent expenditures for speech advocating the election or defeat of a candidate) remain in effect.  Aron also does not reveal that the Court’s holding applies equally to unions, nor that the Court adopted the very holding that the ACLU urged.  (I ask again:  Since when is agreeing with the ACLU on First Amendment speech to be disparaged by the Left as “conservative”?)  If there’s any evidence that the ruling has led, or will lead, to a flood of corporate spending on elections (and I doubt there is), AFJ’s “in-depth analysis” doesn’t provide it.

e.  Aron charges that the Court in Ledbetter v. Goodyear Tire & Rubber Co. ruled that a “woman paid less than her male peers for 20 years had no right to bring a lawsuit for equal pay because she failed to file the suit within 180 days of the first instance of discrimination — though she had no way of learning about the discrimination until years later.”  But in fact the woman waited for years after learning about the discrimination to file her EEOC complaint, and the Court expressly left open (see footnote 10 of the opinion) the possibility that the filing deadline would run from discovery of the discrimination.

Tags: Whelan

Liu-dicrous Responses to Written Questions—Part 4


See Parts 1, 2, and 3.

A few final (I think) comments on Ninth Circuit nominee Goodwin Liu’s initial set of responses to post-hearing written questions:

1.  Five years ago, Liu wrote a cheap attack on the nomination of John Roberts to the Supreme Court.  The lead item that Liu offered in support of his claim that Roberts’s “legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment” was Roberts’s unanimous opinion in a case (which I discuss more fully in point 1 in the preceding link) that upheld a D.C. policy that provided that minors (but not adults) who committed offenses in Metrorail stations be taken into custody.  

Asked whether it’s his judgment that the arrest in the case violated the defendant’s constitutional rights, Liu refuses to opine on the matter.  (Cornyn Q4.b.)  What, then, was he faulting Roberts for?  Liu now says that his “concern” was that the mandatory arrest policy was extreme, but Roberts expressed very much the same view.  He also claims that he had concerns that the policy might “have reflected stereotypes of youth offenders” and notes that Roberts’s opinion “did not address” such an argument.  I’d bet it didn’t do so because no one made the argument, just as Liu himself didn’t make the argument in his op-ed.  In any event, if Liu thinks that’s a winning argument, he should say so.  If he doesn’t, he had no ground to criticize Roberts’s opinion. 

In his second count in that same op-ed (point 2 in link above), Liu alleged that Roberts had a “theory of limited federal power” that would “weaken[] key environmental laws … and would potentially undermine bedrock civil rights laws.”  Liu now doesn’t defend that allegation but instead maintains merely that he “expressed no view on whether [Roberts] would have concluded … that the regulation [at issue] exceeded Congress’s commerce power.” ([Cornyn Q4.c.)

2.  At Justice Alito’s confirmation hearing, Liu offered patently demagogic testimony.  At his own hearing, Liu conceded only that his testimony against Alito used “perhaps unnecessarily flowery language.”  Now that he finally perceives it as in his interest to do so, Liu offers an apology of sorts (though I have to wonder whether the passage I italicize is Liu’s effort to confer victim status on himself):

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now.  [Cornyn Q6]

3.  Liu maintains that his amicus brief in the California supreme court, which argued that the traditional definition of marriage violated the state constitution, “expressed no view and made no attempt to resolve whether California’s definition of marriage violated the U.S. Constitution”:

The brief urged the court to “rely solely on California, rather than federal, constitutional law” and noted that “California’s Constitution has often been construed to provide broader protection than its federal counterpart.” The brief discussed federal cases “to illustrate” an “analytic methodology for interpreting the California Constitution.” The brief expressed no view and made no attempt to resolve whether California’s definition of marriage violated the U.S. Constitution.  [Sessions Q13.a (citations omitted)]

That strikes me as a misleadingly incomplete account.  In their brief, Liu and the other amici state at the outset (p. 2) that “well-accepted constitutional principles” require invalidation of California’s marriage law.  In context, it’s clear that the “well-accepted constitutional principles” they’re referring to are federal constitutional principles (as Liu’s own summary acknowledges).  Under the implicit logic of their brief, amici are arguing that because California’s definition of marriage violates these federal constitutional principles, it follows a fortiori that it is inconsistent with the “parallel[]” or “broader” protection that California’s constitution provides.  In other words, because California’s definition of marriage violates the equal-protection guarantee of the federal Constitution, it follows that it violates the state Constitution.

Tags: Whelan

Liu-dicrous Responses to Written Questions—Part 3


See Parts 1 and 2.

At his confirmation hearing, Ninth Circuit nominee Goodwin Liu tried to disguise himself as a judicial conservative.  (See “Simply Liu-dicrous Testimony,” Parts 2, 3, and 4.)  He continues that effort in his initial set of responses to post-hearing written questions:

1.  Continuing to maintain that his academic writings on how judges should construe the Constitution would somehow have no bearing on how he as judge would construe the Constitution, Liu presents a cook-by-recipe vision of judging that would have him laughed out of academia if anyone believed he actually meant what he said:

In deciding cases that come before me as a judge, I would set aside the views I have expressed as a scholar and follow the instructions of applicable Supreme Court and Ninth Circuit precedents, including any instructions in such precedents on how to interpret specific constitutional provisions.  [Sessions Q6.a]

Liu also gives the impression of repudiating both President Obama’s empathy standard and his own book-long argument that the Constitution must be interpreted “in light of the conditions and challenges faced by succeeding generations”:  He asserts that “all cases must be decided by applying the law to the facts from beginning to end.”  (Cornyn Q20.a.)

2.  Having previously dismissed the values of “free enterprise,” “private ownership of property,” and “limited government” as “code words for an ideological agenda hostile to environmental, workplace, and consumer protections,” Liu now waxes rhapsodic about these values:

From the time of America’s founding, our nation and our Constitution have reflected an unwavering commitment to free enterprise, private ownership of property, and limited government. I strongly believe in these important values, and I am personally committed to them.  [Cornyn Q3.c]

3.  Having previously found it “difficult … to grasp” how anyone could resist the practice of using foreign authority in interpreting the Constitution, Liu continues his confirmation-process posture of seeing at most a very limited role for the practice.  See, e.g., Cornyn Q10.b, 10.d, 11.

Tags: Whelan

Liu-dicrous Responses to Written Questions—Part 2


More on Ninth Circuit nominee Goodwin Liu’s initial set of responses to post-hearing written questions:

1.  Liu claims that his “writings agree with Supreme Court precedent that courts have no role in creating social or economic entitlements.”  (Sessions Q3.b (emphasis added); see also Sessions Q3.c.)  But Liu has in fact written that the judiciary is “generally limited to an interstitial role” in recognizing constitutional welfare rights—“affirmative constitutional right[s] to particular social goods such as ‘education, shelter, subsistence, health care and the like, or to the money these things cost.’”

The “interstitial role” that Liu contemplates for the judiciary is far from “no role” (nor is that “interstitial role” compatible with a sound understanding of judging).  Further, Liu writes only that the judiciary is “generally limited” to that interstitial role, and he thus leaves open a much broader role for judges (as his call for San Antonio Independent School District v. Rodriguez “to be swept into the dustbin of history” reveals).

2.  Liu declines to express any opinion on whether the Court’s 2002 decision in Zelman v. Simmons-Harris, which held that school-choice programs that include religious schools do not violate the Establishment Clause, was rightly decided.  (Sessions Q10.b.)  He doesn’t maintain that he doesn’t have an opinion, nor that he hasn’t previously expressed an opinion, but only that he does “not recall any specific conversations” on the issue.  Liu’s evasiveness discredits his handful of conservative supporters who have touted their misunderstanding of Liu’s position on school choice as a supposed courageous exception to Liu’s hard-Left record on constitutional issues.

3.  Asked “who will decide when the courts are being faithful to the Constitution,” Liu opines that “the Supreme Court is the ultimate arbiter of when courts have been faithful to the Constitution.”  So much for any meaningful check on judicial excesses.  Even worse, Liu bases his position entirely on the fact that the Court has asserted (wrongly) that “its interpretation of the Constitution ‘is the supreme law of the land.’”  (Sessions Q7.a.)

4.  Presenting an account of Liu’s remarks on the “idea of remedying societal discrimination” as a justification for racial preferences, Senator Sessions offered this critique:

You plainly do not share Justice Powell’s concern about timelessly “imposing

discriminatory legal remedies that work against innocent people.” In your words,

“if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.” And as you put it, quoting Justice Brennan, concerns that “remedying societal discrimination … has no foreseeable endpoint” are nothing more than “‘a fear of too much justice.’”


In your comments, you do not recognize, much less give any weight to, the concerns of innocent victims of racial preferences. Instead, your approach would lead to the imposition of racial quotas in education, employment, and contracting ad infinitum since any persisting disparities would be attributed to past societal discrimination.

Sessions then asked Liu, “If that is not an accurate reading of your comments, please explain why.”  So far as I can tell, Liu’s response does not take issue with Sessions’s critique.  (Liu does quote a passage from one of his writings that observes that “a desire to remedy discrimination and its vestiges logically motivates the hope that affirmative action will some day end,” but that “hope” is no answer to Sessions’s critique that Liu’s approach would lead to pervasive racial quotas in perpetuity.)  (Sessions Q12.a.)

5.  Liu concedes that his rabblerousing call for Milliken v. Bradley and San Antonio Independent School District v. Rodriguez “to be swept into the dustbin of history” is not replicated in his writings.  (Sessions Q14.d.ii, 14.e.ii.)  (From what I can tell, he was not asked that same specific question about the third Supreme Court ruling, Adarand Constructors, Inc. v. Peña, that he wanted “swept into the dustbin of history.”)  As I’ve explained, that fact makes his inexplicable failure to include his presentation in his Senate questionnaire response all the more disturbing.

Tags: Whelan

Liu-dicrous Responses to Written Questions—Part 1


Controversial Ninth Circuit nominee Goodwin Liu has submitted his initial set of responses to written questions that Senate Judiciary Committee members submitted following his recent hearing.  I will aim to offer some commentary on his responses in a series of posts.

Let’s start with Liu’s failure to respond meaningfully to so many questions about his views on a range of constitutional questions.  Unlike most judicial nominees, Liu has taught and thought about issues of constitutional law for a number of years.  Yet when asked whether he believes that various cases were decided properly, he repeatedly ducked the question and instead recited that he would “faithfully” follow Supreme Court and Ninth Circuit precedent.  (By my quick count, Liu used this particular dodge more than eighty times.)  In response to other questions about his views on constitutional issues, Liu repeatedly responded by asserting, “I have not previously expressed any view on this issue, and I believe it would not be appropriate for me to do so now” (or something very similar).  He never offered any explanation why he believed “it would not be appropriate.”

So when Liu has expressed views on legal issues beyond what the public record shows, his tactic is to refuse to disclose what he has said and to hide behind his promise to follow precedent.  And when he maintains that he hasn’t expressed any view on an issue (even if he in fact has formed and holds a view on the issue), his tactic is to assert that it would not be appropriate for him to disclose his view to the Senate.

I must say that I find it highly implausible (even under the narrowest reading of the questions) that Liu, as an engaged scholar of constitutional law, has never “expressed any view,” no matter how discreetly or tentatively, on such matters as whether the Constitution, properly interpreted, confers a right to same-sex marriage (Sessions Q13.a);* or whether the inclusion of “under God” in the Pledge of Allegiance violates the Establishment Clause (Coburn Q8.a); or whether the Court correctly decided prominent recent cases like the detainee ruling in Hamdan v. Rumsfeld (Cornyn Q22.a), the Second Amendment ruling in District of Columbia v. Heller (Sessions Q13.b), and the New Haven firefighters case, Ricci v. DeStefano (Cornyn Q22.g).

It’s also worth noting that Liu fails to maintain a consistent line in his responses (other than the line of what he evidently perceives to be in his self-interest).  For example, Liu volunteers that his “own view of the Constitution” is that racial quotas (which he defines very narrowly as “rigid numerical goal[s]”) are unconstitutional.  (Sessions Q10.d.)  But the passages from his writings that he cites to substantiate his position (Sessions Q10.e) don’t show that he has ever previously expressed that personal view.  So it appears that Liu will disclose his views on legal issues when he thinks that doing so will help his nomination, and he won’t when he thinks that doing so won’t.

* I’ll have more to say on this.

Tags: Whelan

President Obama and the Concept of Judicial Restraint


This Los Angeles Times article on President Obama’s search for a consensus-building justice includes this strange sentence:

A high priority on judicial restraint is not a new concept for Obama, a constitutional lawyer who taught for years at the University of Chicago Law School, a bastion of conservative legal thought.

The notion that a “high priority on judicial restraint is not a new concept for Obama” may be true in the limited sense, say, that a “high priority on capitalism was not a new concept for Marx” or that a “high priority on marital fidelity was not a new concept for Bill Clinton.”  In other words, Obama has surely been familiar with the concept of judicial restraint and with the fact that other folks give it high priority, but what evidence is there that he ever did (other than as rhetorical camouflage)?

Let’s not forget that Obama’s notorious empathy standard for Supreme Court justices—which is a recipe for lawless judicial activism—was not some slip of the tongue.  Rather, Obama spelled out that standard at length in the carefully prepared Senate floor statement that he delivered to explain why he was voting against the confirmation of Chief Justice Roberts.  He repeated that standard while running for president, including in a July 2007 speech to the Planned Parenthood Action Fund.  There is every reason to believe that that standard reflects Obama’s considered judgment.  (For more, see my 2007 essay, which first exposed Obama’s empathy standard.)

Obama’s empathy standard is so deeply unpopular with the American public that Obama is now trying to run away from it.  He’s found it convenient to demagogue the Court’s ruling in Citizens United as an exercise in conservative judicial activism.  Never mind that the Court majority adopted the very holding that the ACLU urged.  (Since when is agreeing with the ACLU on First Amendment speech to be disparaged by the Left as “conservative”?)  He’s now trying to hide his empathy standard behind the banner of judicial restraint.  No one should take him seriously.

Tags: Whelan

Probing the Mystery of Elena Kagan’s Beliefs


I confess that I’m a bit baffled by the hopes and concerns of some on the Right and on the Left, respectively, that Elena Kagan might secretly harbor some conservative legal views.  Anything’s possible in theory, I suppose, but let’s start with some basic facts: 

Kagan clerked for two very liberal jurists, D.C. Circuit judge Abner Mikva and Supreme Court justice Thurgood Marshall, and she calls Marshall her legal hero.  In addition to her current work in the Obama administration, she worked on the Dukakis presidential campaign and in the Clinton White House.  She’s been in the liberal milieu of legal academia for most of her career and has thrived in that milieu.  So far as I’m aware, no one who knows her well “doubt[s],” as Charles Fried puts it, “that her heart beats on the left.”  In short, except in those areas (presidential powers and national security) where she has expressed more moderate views, there is zero reason to expect that she’d be anything other than the doctrinaire liberal that she has vocally been on gay-rights issues.

For folks looking for yet more evidence, today’s Daily Princetonian carries an article on Kagan as a Princeton undergrad.  Kagan was editorial chairman of the paper for two years, and the student colleague who appointed her describes her politics as having been “progressive and thoughtful but well within the mainstream of the … sort of liberal, democratic, progressive tradition.”  (Ah, yes, the mainstream of the left stream.)  Here’s an excerpt about Kagan’s senior thesis on the history of the socialist movement in New York City:

“Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” she wrote in her thesis. “Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.”

She called the story of the socialist movement’s demise “a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America … In unity lies their only hope.”

I think that it’s fair to say that anyone who found it puzzling—as “cr[ying] out for explanation”—why Americans “are more likely to speak of … capitalism’s glories than of socialism’s greatness” and who saw the demise of the American socialist movement as “sad” was well on the Left.  (To be clear:  I am certainly not contending that Kagan’s views might not have changed over the years; I am merely pointing out the utter dearth of evidence that Kagan might secretly harbor conservative views.)

Tags: Whelan

Painter’s Wild Misportrait of Liu


Law professor (and former Bush White House ethics adviser) Richard Painter has compounded his previous ill-informed commentary on the Ninth Circuit nomination of Berkeley law professor Goodwin Liu by writing an absurd op-ed hailing Liu as “a fine choice for the federal bench” and as someone who “shows no signs of being a potential judicial activist.”  I’m tempted to speculate that Painter’s op-ed is a particularly striking manifestation of the phenomenon that I’d label battered-conservative-academic syndrome, but I’ll instead address what I take to be Painter’s core assertions:

1.  Painter contends that “Liu’s academic writings and speeches … reflect a moderate outlook,” but he addresses virtually nothing about those writings and speeches that I and others have found to be controversial. 

How is it “moderate,” say, to call for the Supreme Court precedents of Milliken v. Bradley, San Antonio Independent School District v. Rodriguez, and Adarand Constructors, Inc. v. Peña “to be swept into the dustbin of history”? 

How is it “moderate” to embrace the same freewheeling approach to constitutional interpretation as noted lefty law professor Pam Karlan (or does Painter consider her a “moderate,” too?)?

How is it “moderate” to argue that judges (usually in an “interstitial” role) may legitimately invent constitutional rights to a broad range of social “welfare” goods, including education, shelter, subsistence, and health care? 

How is it “moderate” to advocate reviving “the idea of remedying societal discrimination as a justification for affirmative action”—an approach that would entail the imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever (since any persisting disparities would be attributed to past societal discrimination)?

How is it “moderate” to support invention of a federal constitutional right to same-sex marriage?

I could go on and on, but it ought to suffice to note that Painter does not even acknowledge such matters, much less try to explain them away.  Perhaps Painter’s perspective on what a “moderate” is has been so blurred by his time in legal academia that he can no longer see straight.

2.  Painter contends that Liu “envisions most of his proposals being implemented through the legislative process, not by the courts,” but that is simply not true of most or all the items I discuss in item 1 (and in my broader bill of particulars against Liu).

3.  Contending that Liu “has many good ideas,” Painter cites as his only example Liu’s support for “using school-choice and voucher programs to allow students to escape substandard conditions that are particularly hard for poor and minority students.”  Painter  claims that this position shows that Liu “is willing to risk political fallout for suggesting ideas unpopular with many in the left wing of the Democratic Party.”  But this single alleged instance of courageous deviation from the party line is in reality illusory.  As I have explained, Liu is a supporter of racial quotas in the schools, and he supports school choice only insofar as it furthers that goal.

4.  Painter contends that it is “misguided” for conservatives to count against Liu his opposition to the Roberts and Alito nominations, for “it is important that people speak their mind about Supreme Court and other judicial nominations without fear of retribution.”  Once again, Painter completely misses the point:  The shoddy and demagogic quality of Liu’s opposition to Roberts and Alito reflects very poorly on him.  There is no reason to encourage cheap attacks like Liu’s by not holding him accountable.

5.  Having utterly failed to address the actual arguments against Liu, Painter contends that “few of Liu’s critics are interested in [Painter’s] arguments” (as if he’s actually said anything of interest).  Instead, he claims that many of Liu’s critics “are only interested in demonizing him, probably to show the president and the Democrats on the Senate Judiciary Committee that they can challenge a nominee they don’t like.”  Even more contemptibly, he contends that “another motivating factor” is “money.”  Gee, what happened to Painter’s strong interest, stated in the immediately preceding paragraph, in having “people speak their mind about … judicial nominations”?  And who’s doing the baseless demonizing?

Tags: Whelan


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