This Day in Liberal Judicial Activism—October 2

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1953—Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California governor Earl Warren as Chief Justice. In January 1954, Eisenhower nominates Warren to hold that office “during good Behaviour,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969. 

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes. 

Is Justice O’Connor Really Still a Judge?

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Since the time of her departure from the Supreme Court, retired justice Sandra Day O’Connor has decided cases as a member of various panels of the regional courts of appeals, supposedly pursuant to the authority of 28 U.S.C. § 294.  In this post, I will tentatively sketch an argument that Justice O’Connor’s participation in those cases has been unconstitutional.

I emphasize that my argument is tentative.  That’s in part because there may be facts unknown to me that would alter my conclusion.  It’s also because I just ran across the factual predicate of the argument yesterday evening, and I haven’t had time to explore carefully all the issues that may be involved.  Indeed, given more pressing claims on my time, I don’t expect to take the time to explore these issues more fully.  I am instead tossing them out for consideration by those who may be expert on some or all of the issues.  I invite anyone who has informed views, one way or the other, to pass those views along to me at ewhelan@eppc.org.  I will supplement this post as appropriate.  And, of course, if I come to determine that my tentative conclusion is incorrect, I will promptly say so.

Here’s the short version of the argument (which, for sake of brevity, omits many of the qualifications and reservations in the longer form):

When Justice O’Connor informed President Bush of her decision to retire from the Supreme Court, she didn’t merely state that she would be retiring from regular active service as a justice.  Rather, she stated that she would “retire from my position as an Associate Justice.”  Of the two choices that federal law affords a retiring judge or justice, her retirement would therefore appear to have been a full “retire[ment] from the office” (under 28 U.S.C. § 371(a)).  In short, O’Connor resigned and became a former justice; she did not just take “senior status.”  Therefore, she was no longer a federal judge at all and has not been constitutionally eligible to serve as a judge pursuant to the designation-and-assignment authority of 28 U.S.C. § 294.

Here’s the longer argument:

1.  Federal law (28 U.S.C. § 371) gives pension-eligible judges (including justices) two options for judicial retirement.  One option (subpart (a) of § 371) involves leaving the federal bench entirely:  a judge taking this option “retire[s] from the office.”  For the sake of clarity, I’ll refer to this option (as the academic literature sometimes does) as “resignation.”  Under the second option of “senior status” (subpart (b)), the retiring judge “retain[s] the office but retire[s] from regular active service.”

There are advantages and disadvantages to each option.  For example, a judge who has resigned may freely pursue employment in the private sector and is no longer subject to the ethical restrictions that apply to all federal judges (including judges in senior status).  But the pension of a resigned judge won’t benefit from any increases in the federal judicial salary.  And a resigned judge can no longer perform the duties of a federal judge (unless, of course, he is re-appointed as a judge).

By contrast, a judge who has taken senior status (and who meets minimum workload requirements) benefits from salary increases and is able to continue to perform judicial duties.  That judge remains subject to the Code of Conduct for United States Judges and to statutory restrictions on outside income.  (If I’ve overlooked any significant advantages or disadvantages to either option, please let me know.)

2.  When Justice Stevens sent his retirement letter to President Obama in April 2010, he clearly selected the “senior status” option:  “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.”

Ditto for Justice Souter’s May 2009 letter to Obama stating his intention to retire: “When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 U.S.C. § 371(b)….  I mean to continue to render substantial judicial service as an Associate Justice.”  The phrase that I’ve italicized emphasizes Souter’s understanding that he would retain the office of Associate Justice while in senior status.

By contrast, here’s how Justice O’Connor’s July 2005 letter to President Bush reads (emphasis added):

This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.

O’Connor’s statement, I acknowledge, isn’t as detailed as Stevens’s or Souter’s, but it would seem to me to be best read as taking the resignation option under subpart (a).  In particular, her phrase “retire from my position as an Associate Justice” seems equivalent in meaning to subpart (a)’s phrase “retire from the office.”  Thus, on this evidence, there would seem ample reason to think that the Administrative Office of the U.S. Courts is in error when it states that O’Connor “assumed senior status” in January 2006.  (I’d guess that the Chief Justice has relied on the Administrative Office’s classification in assigning duties to O’Connor.)

What would alter this tentative judgment of mine?  I offer a few possibilities:

First, it might well be that O’Connor’s phrasing turns out to be an accepted or conventional means of exercising the “senior status” option.  (That seems unlikely to me.)

Second, it’s possible that O’Connor undertook to clarify or alter the terms of her retirement before her retirement became effective—that is, before Justice Alito was confirmed.  If so, it would be interesting to see what form such a measure took—and there are lots of interesting questions about what forms would be valid.  (I’m disinclined to believe that any post-retirement evidence would be relevant to the question, but am open to being persuaded otherwise.)

Third, it’s possible that some principle of interpretation would call for any doubts to be resolved in favor of the “senior status” option, perhaps on the ground that a retired judge can easily change from “senior status” to resigned, but can’t do the reverse.  (Even if such a principle exists, however, it would first need to be established that O’Connor’s letter is ambiguous.)  Or perhaps evidence of O’Connor’s contemporaneous subjective intention would clarify any ambiguity.  (I don’t think that a judge’s subjective intention could override the contrary objective meaning of a retirement letter.)

3.  If O’Connor did in fact resign, would she nonetheless be eligible to be designated and assigned to perform judicial duties pursuant to 28 U.S.C. § 294?

Whereas the statutory provision (subpart (b) of section 294) governing designation and assignment of retired lower-court judges is expressly limited to judges who have “retired from regular active service” under section 371(b) (or under a separate disability provision), the provision governing designation of retired justices doesn’t contain that limit.  On its face, therefore, it could be read to authorize the Chief Justice to assign judicial duties to former justices who have resigned.

Such an authorization strikes me, at least at first blush, as unconstitutional.  Article III judicial power may be exercised only by sitting Article III judges.  Once a federal judge has resigned, that judge is no more authorized to exercise judicial power than are any of the 300 million other Americans who aren’t federal judges.

It may well be the case that Congress could confer on the Chief Justice the power to appoint some or all lower-court federal judges.  See Art. II, section 2, cl. 2 (whereas the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court, … the Congress may be Law vest the Appointment of such inferior Officers, as they think proper, … in the Courts of Law”).  But section 294(a) cannot plausibly be read as conferring an appointment authority; it merely authorizes retired justices to be “designated and assigned” by the Chief Justice.  Further, under Article III any appointment authority would have to confer on the appointed judge life tenure in office (or, more precisely, tenure “during good Behaviour”)—something that section 294(a)’s designation-and-assignment of judicial duties does not remotely purport to confer.

4.  This question isn’t academic.  Losing litigants in the cases in which Justice O’Connor has sat post-retirement could seek to invalidate the adverse ruling.  That would likely be the case even if the ruling was unanimous.  See Nguyen v. United States (2003) (Supreme Court decision vacating unanimous ruling of three-member panel that included one non-Article III judge).

Again, I offer this argument only as a tentative sketch, and I welcome any corrections, disagreements, or additional information.

Seth Stern’s and Stephen Wermiel’s Biography of Justice Brennan

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In the course of highlighting two of its many nuggets—one on Justice Brennan’s disappointment with Justice Thurgood Marshall’s performance on the Court, one on Brennan’s surprising opposition to female law clerks and justices—I’ve mentioned Seth Stern’s and Stephen Wermiel’s excellent new biography of Justice Brennan, which bears the easy-to-remember title of Justice Brennan (and the subtitle Liberal Champion).  Justice Brennan’s official publication date is, fittingly, this coming Monday, the opening day of the Court’s new term.

I hope to find time to say more about the biography (which I read in galleys).  For now, I’ll limit myself to two observations:  The book offers an intelligent and interesting account both of Brennan’s decades on the Court and of the broader developments in American life that intertwined with the Court’s work.  And, with the understandable exception of a celebratory final chapter, the biography is impressively evenhanded and down the-middle—no easy achievement for a controversial figure.

John Elwood’s “Revue” of Last Term

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In advance of next Monday’s opening of the 2010-2011 Term of the Court, the always entertaining John Elwood has posted online his insightful and irreverent “What Were They Thinking” review of last Term (a version of which will be published in the Green Bag).  A representative excerpt:

The Internet really took off in the mid-1990s. Here it is a mere 15 years later, and already the Supreme Court, in its usual headlong amble to address the pressing legal issues of the day, took its first Fourth Amendment case involving new digital communications: City of Ontario v. Quon. The underlying facts are a heartwarming tale of modern romance: A SWAT-team member, his wife, his police-issue pager, his girlfriend, and a few thousand smutty text messages, mostly tapped out on Department time. Who hasn’t been there before? While the police department had an official no-privacy policy, a supervisor winked at personal use of pagers. A departmental audit brought Quon’s emails to light, and he apologized for his infidelity for his wife and for bringing shame on the Police Department.

Oh, I’m sorry. Maybe that would have happened on Bizzaro World or someplace where people retained even a modest sense of decorum, but here in the United States, Quon (indeed, the whole Bizarre Love Triangle) sued. The Ninth Circuit, apparently on a dare, held that the city had violated Quon’s reasonable expectation of privacy in transmitting lewd adulterous emails on city time using city property,  which really goes without saying. The Court was thus presented with the question of a person’s reasonable expectation of privacy in text messages. Some pundits questioned whether a Court whose average member graduated college at a time when the telephone was dismissed as a fad would be able to address technological issues more complicated than inserting a wedge, but thanks to the law clerks’ extraordinary efforts to suppress instinctive eye-rolling, combined with the Justices’ heroic feats of feigned comprehension, the Court came through it admirably.

By which I mean that they were able to duck the issue a little while longer. Because of the low standard of reasonableness for searches of government employees that are not conducted for law-enforcement purposes, the Court was able to uphold the search without having to rush willy-nilly into novel Fourth Amendment issues. The Court made a virtue of its issue-duckery, saying, “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” thus marking the first time since 1995 that a two-way pager has been referred to as “emerging technology.” While some commentators interpreted the Court’s reticence as an indication it takes privacy rights in digital media seriously, the longer the Court waits, the greater the likelihood that society’s “reasonable expectation of privacy” will be determined by the preferences of a 19-year-old who puts photos of  himself smoking pot on Facebook before the bong even stops smoldering.

This Day in Liberal Judicial Activism—October 1

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2008—The Supreme Court denies the state of Louisiana’s petition for rehearing in Kennedy v. Louisiana, the case in which the Court held, by a 5-4 vote, that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the state’s petition for rehearing was the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized military courts to impose the death penalty for child rape. The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape.

Chief Justice Roberts and Justice Scalia—both dissenters from the original ruling—vote against rehearing on the ground that the majority was just making it up all along anyway. As Scalia puts it, in an opinion that Roberts joins:

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

Upcoming St. Louis Events

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Next Thursday, October 7, I will be discussing the purported constitutional right to same-sex marriage at two events in St. Louis:

At noon, I will speak at the Washington University School of Law (in the Bryan Cave Moot Courtroom).  The free event, sponsored by the law school’s Federalist Society chapter, includes lunch.  To RSVP, or for more information, contact thomas.haine@gmail.com.

That evening, I will speak to the St. Louis lawyers chapter of the Federalist Society.  The dinner event at the downtown Missouri Athletic Club begins at 7:00 pm.  I gather that there is a fee to attend.  For more information, or to RSVP, contact stlfedsoc@gmail.com.

Breyer’s Idea of Restraint

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According to Lincoln Caplan, writing a few days ago in the New York Times, Justice Breyer rightly appreciates that the Court’s “legitimacy in the public’s eyes” cannot be taken for granted, and is worried that the “judicial activism of Chief Justice John Roberts and the conservative majority” threatens to undermine that legitimacy. 

“The message of Justice Breyer’s book,” Caplan writes, “is that the court jeopardizes its legitimacy when it makes such radical rulings and that, in doing so, it threatens our democracy. That message is powerful, ominous, and very useful.”

I have not read Justice Breyer’s new book, but agree wholeheartedly that “radical rulings” jeopardize the legitimacy of courts that issue them.  See, for example, Dred Scott and Roe v. Wade.  Unfortunately, Justice Breyer — who voted to invalidate, on constitutional grounds, both state and federal laws limiting partial-birth abortions and also to strike down Ohio’s school-voucher program — is not, in my view, plausibly regarded as committed in a principled way to judicial deference or restraint.  It seems to me that he defers to legislative enactments when (a) he agrees with the policy that enactment reflects or (b) the policy reflects an understanding of the scope of regulatory power with which he agrees.  This is, I suppose, “pragmatism” of a sort, but it’s not clear that there’s anything about such an approach that should tend to shore up the Court’s “legitimacy.”

Charles J. Cooper as Republican Lawyer of the Year

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I’m very pleased to see that the Republican National Lawyers Association is honoring Charles J. Cooper (of the D.C. law firm of Cooper & Kirk) with its Republican Lawyer of the Year Award.  Among the activities “advancing conservative legal principles” for which the RNLA rightly praises Chuck is his ongoing defense of the constitutionality of California’s Proposition 8 on marriage. 

The event honoring Chuck takes place next Thursday, October 7, in D.C.  See here for more information.

Re: Vaughn Walker’s Retirement

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Media Matters demonstrates its usual combination of poor reading comprehension and/or rank mendacity with its post “Bizarre theory: Whelan suggests Judge Walker may have made Prop 8 decision to ‘feather his nest.’”  That post asserts that I have “used the occasion of Walker’s announcement that he will resign his position next year to come up with the completely baseless and bizarre theory that Walker may have used the marriage case to ‘feather his nest.’”

To the contrary, I specifically stated (emphasis added):

Applying Ockham’s razor, I will readily presume that Walker’s wild course of misconduct in the anti-Prop 8 case was driven entirely by his ideological fervor for same-sex marriage and that Walker wasn’t also trying to feather his own post-judicial nest.

I then used the counterfactual subjunctive (“if he were trying to feather his nest” (emphasis added)) to offer an additional observation.

Only in Media Matters’ demented world would my express non-avowal of a theory be misrepresented as my having adopted (or “come up with” or “suggest[ed]”) it.

Update/clarification (4:50 pm, in response to a comment from a reader):  If Media Matters had argued that my comments treat as within the realm of plausibility the possibility that Walker might have been motivated in part by a desire to “feather his nest,” I don’t think that I would have any reason to object.  But why would Media Matters believe that Walker must be conclusively presumed to be immune to the sorts of incentives that tempt all other mortals?

Vaughn Walker’s Retirement

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The Northern District of California announced yesterday that Chief Judge Vaughn Walker, whose remarkable course of misconduct in the anti-Prop 8 case I’ve extensively documented, “has notified President Obama by letter … that he will leave the court in February 2011” and that he “plans to return to the private sector”—presumably in San Francisco.

Walker’s decision to retire is no surprise.  Indeed, the buzz from local courtwatchers is that Walker was going to retire last year (when he first became pension-eligible) but changed his mind when the anti-Prop 8 case, through the wonders of supposedly random assignment, fell into his lap.

Applying Ockham’s razor, I will readily presume that Walker’s wild course of misconduct in the anti-Prop 8 case was driven entirely by his ideological fervor for same-sex marriage and that Walker wasn’t also trying to feather his own post-judicial nest.  That said, if he were trying to feather his nest, his high-profile invention of a constitutional right to same-sex marriage, including his remarkable (and overturned) denial of a stay of his judgment pending appeal, would be one way to build a lot of goodwill among many prospective San Francisco employers.  (On the other hand, anyone who actually read his ruling, and followed his actions, with care would be less than impressed by his legal ability.)

The entire anti-Prop 8 farce would be complete if Walker were to join either Ted Olson’s or David Boies’s firm.  But negotiations could be complicated if Walker were to make a well-deserved request for back pay.

Senate in Recess

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At least a week earlier than expected—and without making any effort to have the Senate vote to confirm any more judicial nominations—Democratic leader Harry Reid yesterday sent the Senate into recess.

Re: A D.C. Circuit Nominee

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So after more than 20 months, President Obama has finally nominated someone (Caitlin Halligan) to the D.C. Circuit seat that John Roberts vacated upon becoming Chief Justice five years ago.  That, of course, is the same seat to which the superbly qualified and universally acclaimed Peter D. Keisler was nominated in June 2006, only to have his nomination bottled up in committee for the subsequent 2-1/2 years of the Bush presidency.

So how many weeks do you think it will be before the shameless Senator Leahy starts complaining about Republican delays in confirming Halligan?

Senator Whitehouse’s One-Way Courtesy

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At the Senate Judiciary Committee markup last week, Senator Sheldon Whitehouse, in trying to make the case for confirmation of his own fatcat Democratic donor (and trial lawyer) John J. McConnell Jr. to a district judgeship in Rhode Island, argued for “a tradition of Senatorial courtesy to the judgment of the Senators of the home state.”

It’s understandable that Whitehouse would prefer not to argue McConnell’s nomination on the merits.  Especially given how much litigation experience McConnell has (he’s been a trial lawyer for 25 years), the mediocre ABA rating that he received—substantial majority “qualified”/minority “not qualified”—ought to set off alarm bells.  That rating makes even more clear that Whitehouse and his fellow senator from Rhode Island, Jack Reed, recommended McConnell’s nomination because of his campaign contributions and trial-lawyer depredations (here’s one example)—not, as they claimed (in the Providence Journal’s paraphrase), because of his supposed “qualities of legal ability, intellect, temperament and integrity.”

But where, one wonders, was that supposed “tradition of Senatorial courtesy to the judgment of the Senators of the home state” in 2003 and 2004, when Senate Democrats prevented a floor vote on the district-court nomination of J. Leon Holmes—who had the support of both the Democratic senators from Arkansas—for over fourteen months from the time the committee reported his nomination?  Where was it in 2007 and 2008, when committee Democrats refused even to give a hearing to district-court nominees Thomas A. Farr (nominated in December 2006 and renominated in January 2007), William J. Powell (May 2007), and Colm F. Connolly (February 2008) and refused to hold a committee vote on Richard H. Honaker (March 2007), Gustavus Puryear (June 2007), and David J. Novak (November 2007)—all of whom had the support of both their home-state senators?

Incidentally, all of these Bush 43 nominees had higher ABA ratings than McConnell:  Farr, Connolly, and Honaker were unanimously rated “well qualified”; Holmes, Powell, and Novak were rated substantial majority “well qualified”/minority “qualified”; and Puryear was unanimously rated “qualified.”

Whitehouse’s apparent response is to define this “tradition of Senatorial courtesy” in a highly gerrymandered way:

[I]t has always been the tradition of this body that when the two home state Senators approved a nominee, when they have cleared the background check and when they have cleared the Committee, they got a straight up or down vote on the Senate floor without procedural obstruction, period.

In short, under Whitehouse’s version of the “tradition of Senatorial courtesy,” it’s fine for the single senator who is chairman of the Judiciary Committee to deny a hearing or a committee vote to a nominee who has the support of both home-state senators.  That’s hardly consistent with a robust tradition of substantial deference to home-state senators.  Nor does the Holmes example fit the supposedly absolutist tradition that Whitehouse posits.

A D.C. Circuit Nominee

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Today President Obama made his first nomination to the U.S. Court of Appeals for the D.C. Circuit: Caitlin Halligan, General Counsel for the New York County District Attorney’s Office.  Nan Aron of the liberal Alliance for Justice immediately praised the choice, while conservatives were muted, according to the BLT.  Aron may have simply been pleased the President finally got around to nominating someone — anyone — to the D.C. Circuit, which has had two open seats for over two years.  Also today, President Obama nominated international trade lawyer Jimmie Reyna, a partner at Williams Mullen PC, to the U.S. Court of Appeals for the Federal Circuit.

District Judges Matter, Too

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At last week’s Judiciary Committee meeting, Senator Whitehouse expressed his dismay that Obama nominee John McConnell had not yet been confirmed as a district judge in Rhode Island. He suggested that once the home-state senators have signed off on a district court nominee the rest of the Senate should automatically join them, opining that “we are on track right now to destroy a tradition of senatorial courtesy to the judgment of the senators of the home state. … I don’t think there is a going back from this.” But the Constitution doesn’t say that the president nominates and home-state senators give their advice and consent, while 98 other Senators merely engage in a pro-forma charade.  And that is certainly not what happened to Bush’s nominees, even for district court nominees whom Whitehouse suggested should be given only limited scrutiny.

In fact district judges are profoundly important, and not only because they are often the first in line for higher-level nominations. District judges may have more levels of judicial review to double-check their work, but they still are well-positioned to make serious trouble if they choose to elevate activist principles over the law. Many district court level decisions are reviewed only in the rarest of circumstances and with great discretion, giving these trial-level judges a good deal of power as they manage the progression of a case, deciding its many preliminary motions, and above all creating a factual record. (See, for example, Judge Walker’s attempt to shield his prop-8 decision from review by disguising it as a finding of fact).  

Nor did Democrats feel so well-disposed toward district court nominees under President Bush. Numerous nominees who had bipartisan home-state support nonetheless did not receive committee attention or even – like David Novak of Virginia, Richard Honaker of Wyoming, and Gus Puryear of Tennessee – had hearings but never were brought for a floor vote. 

Republicans aren’t being petty in expressing doubts about McConnell in particular. His extreme anti-business legal theories, advanced as a lead paint plaintiffs’s lawyer, would have held companies liable for damages regardless of whether their paint was involved in any injury. This led the Chamber of Commerce to make McConnell the first district court nominee they have ever opposed. Even the knee-jerk liberals at the ABA weren’t able to give McConnell a solid qualified rating, splitting between qualified and unqualified. That calls into question the president’s insistence that it was McConnell’s qualifications and not his hundreds of thousands of dollars in Democratic campaign donations that led to his nomination.

Senators have a duty to ensure that candidates for a lifetime appointment to the federal bench are qualified and have an acceptable judicial philosophy. To fast-track nominees like John McConnell would be to abandon that duty.

Dianne Feinstein’s Amnesia

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At the Senate Judiciary Committee markup last week, Senator Dianne Feinstein tried to muster Republican support for controversial Ninth Circuit nominee Goodwin Liu by alleging that Liu had been subjected to an “arbitrary slurring of character” and by stating that “I do not recall myself ever participating in this kind of thing on a Republican-nominated judge.”  Feinstein provided not a single example of the “arbitrary slurring of character” that she alleged, and she simply ignored the massive and comprehensive case that has been made against Liu.  (For a summary of that case, see my NRO essay.  See also my inventory of selected blog posts, my commentary (parts 1, 2, 3, and 4) on Liu’s hearing testimony, and my review (parts 1, 2, 3, and 4) of his post-hearing written responses.)

As I have written, Feinstein deserves credit for the “character [that she displayed] in standing up courageously to the jackals on her side who were maligning [Fifth Circuit nominee Leslie] Southwick” as well as for a small handful of other occasions when she parted company with her Democratic colleagues.  But apart from the fact that there is no comparison between the Left’s vicious and baseless attack on Southwick and Senate Republicans’ thoroughly sound and carefully documented case against Liu, Feinstein’s memory fails her when she claims that she can’t recall “ever participating in [a slurring of character] on a Republican-nominated judge.”

Let’s quickly refresh Feinstein’s memory:  How about her votes against cloture on the nominations of Samuel Alito (to the Supreme Court) and of Janice Rogers Brown, William Pryor (three times), Charles Pickering, Priscilla Owen (four times), Carolyn Kuhl, and Miguel Estrada (seven times)?  If Feinstein somehow distanced herself from the vicious attacks being leveled against those nominees at the same time that she supported the attackers’ filibuster efforts, I missed it. 

Feinstein isn’t the only Democrat evidently suffering from amnesia.  In the realm of dark humor, I’m amused by this exchange between Feinstein and Chuck Schumer at the markup:

Feinstein:  “I voted for [Southwick].  There may have been one other Democratic vote for him.  [To Schumer:] Lee [sic] Southwick, did you vote?

Schumer:  “I might have.”

No, Senator Schumer.  You voted against Southwick in committee, you voted to filibuster his nomination, you voted against him on the Senate floor, and you were one of the jackals who smeared him.  (Among other things, you falsely insinuated that he had condoned the use of an ugly racial epithet, when the opinion he joined in fact clearly stated that use of the epithet “cannot be justified by any argument.”)

Feinstein also contended at the markup that Goodwin Liu “may not be a [good] judge for the Fourth or Fifth Circuit” but that he “would be a good judge for the Ninth Circuit.”  If that statement were intended to mean that the Ninth Circuit is in such bad shape that the incremental damage that Liu would inflict is less than he would inflict on other courts, then it might have some merit.  But insofar as Feinstein means to suggest that the people of California are somehow entitled to more liberal judges, her argument is incoherent.  In a nationwide system of federal law, a bad federal judge is a bad federal judge wherever he sits.  And there’s also no reason why the people of other states in the Ninth Circuit—Idaho, say, or Alaska, or Arizona—should be stuck with more judges like Liu.

This Day in Liberal Judicial Activism—September 29

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1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy.  The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.”  Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply.  As leading liberal scholar Laurence Tribe recently acknowledged, 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.”  Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

A Citizen’s Warning about the Legitimacy of Justice Breyer

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Ed Whelan pointed out many of the problems with Lincoln Caplan’s New York Times piece yesterday, in which Caplan elaborated on Justice Breyer’s veiled suggestions that the Roberts Court has been undermining the legitimacy of the of the Supreme Court. I will add that Caplan’s “Judge’s Warning About the Legitimacy of the Supreme Court” was based less on evidence of public perception of the Court than on Justice Breyer’s own evident disappointment that he is now more often in the minority than any justice, save only the liberal John Paul Stevens, who retired this spring.

In fact, a Gallup poll released last week shows that the public perception of the Court has been incredibly consistent for the last forty years, with periodic peaks and valleys but nearly always as the decidedly favored branch of government. While approval of Congress just hit an all-time low of 36 percent, and approval of the president and the executive branch is below 50 percent, the judicial branch remains at 66 percent approval. And this is despite the decided effort over the past nine months by Democrats from the president on down to tar the Roberts Court as activist. While the judicial branch has declined in public confidence since its peak of 80 percent during the Clinton impeachment process, its numbers have remained remarkably consistent since the 1970s — hardly reason to raise concerns about loss of legitimacy.

If Caplan and the Times are so concerned about legitimacy — both the Court’s and their own — they should take the time to fact-check the opinions of their favored sources before echoing them. The Court has not lost its legitimacy in the eyes of the American people, only in the eyes of Justice Breyer.

Vacant Analysis?

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In a Slate essay, Dahlia Lithwick and law professor Carl Tobias try to “scar[e] your pants off with some strictly nonpartisan facts about the dangers of judicial vacancies.”  Some of what I’ve said about Attorney General Holder’s op-ed applies to their essay as well.  I’ll limit myself to a couple of additional comments:

1.  One basic fact that Lithwick and Tobias don’t see fit to include is how the current judicial vacancy rate compares with rates in the past.  If the rate has been at or near the current rate in the past, then I’m not sure why we should find the current rate so scary.  I haven’t found a convenient summary of the judicial vacancy rate over time, but I do see that there were 101 vacancies in December 2001—basically the same as the 104 reported earlier this month. 

2.  Lithwick and Tobias also state:  “Depending on who’s doing the calculations, the average length of time between being nominated and confirmed has more than quadrupled in the Obama administration.”  But apart from the strange notion that the mathematical reality could depend on “who’s doing the calculations,” their assertion is simply wrong:  The source they cite (in the hyperlink) isn’t comparing the “time between being nominated and confirmed.” He’s comparing the time between “being favorably reported out of” committee and being confirmed. 

As Lithwick and Tobias recognize (and as I’ve explained here), overall time from nomination to confirmation is the far more sensible benchmark.  According to the Brookings Institution’s Russell Wheeler (in this report from yesterday), the average time to confirmation for those Obama nominees who have been confirmed is 134 days for district-court nominees and 232 days for circuit-court nominees.  The comparable figures for Bush 41 nominees were the exact same 134 and a teeny bit higher 236. 

So the alleged possible quadrupling wouldn’t seem to qualify as a “strictly nonpartisan fact.”

AG Holder on the Judicial Confirmation “Crisis”

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In the Washington Post today, Attorney General Eric Holder contends that there is a “crisis” in the judicial-confirmation process.  His lead item of evidence:  the “all too typical” story of Sixth Circuit nominee Jane Stranch, who “was forced to wait almost 300 days for an up-or-down vote by the full Senate,” only to be “confirmed overwhelmingly.” 

There is no question that the state of the judicial-confirmation process has for years been far from ideal.  Any serious effort to fix that process would require acknowledging that fact—and carefully and candidly exploring its causes.

Unfortunately, other than an oblique reference at the end of his op-ed to Senate Republican leader Mitch McConnell’s call in 2005 for up-or-down floor votes on judicial nominees, Holder gives the false impression that there is something new about the situation that nominees like Stranch—who was confirmed by a 71-21 vote—have faced.  Try telling that to Michael McConnell, who was unanimously confirmed to the Tenth Circuit 555 days after his 2001 nomination.  Or to a fellow named John G. Roberts Jr., who was unanimously confirmed to the D.C. Circuit 729 days after his 2001 nomination.  I could go on and on.  Instead, I’ll simply note this observation (emphasis added) in a report yesterday from the Brookings Institution’s Russell Wheeler:

On September 26, 2002, Bush had seen confirmations of 43 percent of his 30 pre-May 26 circuit nominees, with 236 days on average from nomination to confirmation. Obama’s circuit confirmation rate is higher for his 18 like-situated nominees—61 percent, although average days from nomination to confirmation, 232, was virtually the same as for Bush.

Holder complains that “there are more vacancies today than when President Obama took office.”  As Wheeler discusses, one cause of the rise in vacancies is that “Obama has made fewer nominees than Bush did and has taken longer to make them.”  Indeed, “[o]f the 52 district vacancies for which no nominees are pending, 21 have been vacant for over a year.”  But it’s also the case, in what Wheeler calls “in some ways the most intriguing development of all,” that Obama’s confirmation rate for his district-court nominees (58%) is at this point “noticeably lower” that Bush’s was (90%).  That said, the most recent data (discussed here) that I’ve seen from Wheeler that aggregates circuit and district nominees indicates that Obama’s overall confirmation rate (71%) is virtually identical to what Bush’s was (73%). 

Reasonable people can disagree whether the serious problems in the judicial confirmation process amount to a “crisis.”  But if there is a “crisis,” it’s been at least nine or ten years in the making.  And the folks who did so much to cause it shouldn’t now be able to take partisan advantage of it.

Breyer’s Illegitimacy

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Justice Breyer has been getting all sorts of media attention for his new book Making Our Democracy Work: A Judge’s View, which tries to make the case for Breyer’s ever-malleable so-called “pragmatic approach” to interpreting the law.  The usual suspects have been using the occasion of the book to take their usual whacks at the Roberts Court.

For example, in an op-ed in today’s New York Times melodramatically titled “A Judge’s Warning About the Legitimacy of the Supreme Court,” Lincoln Caplan warns that “in recent years court watchers have cited a range of reasons for concern” about the Supreme Court’s legitimacy.  Observing that there is “no accepted index of legitimacy for the Court,” Caplan highlights two hilarious reasons to think that the Court’s legitimacy might be in decline.  First: “Around the world, its influence has declined, measured by the number of times top courts in other countries cite it.” Yes, I’m sure that American citizens will be very troubled to learn that.  Second:  “In academic circles, conservatives and liberals alike have called for term limits for justices, because life tenure and long service could lead them to do the job less well than they should.”

Paraphrasing Breyer, Caplan then asserts that “such radical rulings” as the Citizens United campaign-finance decision jeopardize the Court’s legitimacy.  But Caplan can make that assertion only by obscuring what was at stake in Citizens United:  by misrepresenting the 1990 ruling in Austin v. Michigan Chamber of Commerce as part of “a traditional legal view that stretched back as far as 1907” rather than as the legal outlier that even then-Solicitor General Elena Kagan recognized it to be; by failing to note that the Citizens United holding applies equally to unions and corporations and that the Court adopted the very holding that the ACLU urged; and by neglecting the radical consequences of the First Amendment theory that the Obama administration advocated.  I’ll again observe that virtually no one seems to defend the actual position taken by Justice Breyer and the other dissenters in Citizens United

What ought to shake the public’s confidence in the Court are two elementary matters that escape Caplan’s attention:  (1) culture-transforming/degrading rulings like Roe v. Wade—and the possible invention in coming years of a constitutional right to same-sex marriage—that are invented out of whole cloth; and (2) justices like Breyer who look selectively to foreign laws to redefine the meaning of constitutional provisions to entrench the agenda of the Left and whose utterly indeterminate approach to constitutional interpretation threatens both to invent phony new rights and to erode cherished and genuine old ones. 

Still No SG Nominee

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Ever since May 10, when President Obama announced his intention to nominate Elena Kagan to the Supreme Court, the White House has known that it would (almost certainly) need to nominate her successor as Solicitor General.  Yet four-and-a-half months have passed since then, the opening of the new Supreme Court term is one week away, and there’s still no SG nominee.

If the White House were competent—and, yes, that assumption now seems clearly established as counterfactual—it would have been ready to nominate the new SG right after Kagan’s confirmation to the Supreme Court on August 5.  It could then have plausibly made the case that the Senate ought to act to confirm that nominee expeditiously—before the start of the Supreme Court term.

Instead, the White House has dithered.  Why?  In contrast to Obama’s selection of Kagan—who had never argued an appeal anywhere before becoming SG—there are surely plenty of highly qualified and experienced appellate lawyers with strong Democratic ties who would be eager to take the job.  Was it really that difficult to select one of them by early August?  With the shortened Senate schedule for the remainder of the year, is there any reason at this point to think that the eventual nominee will be confirmed before 2011?

(I’ve heard various rumors about who the leading candidates are for the SG nomination.  Nothing in this post is intended to imply that I favor or disfavor any of them.)

This Day in Liberal Judicial Activism—September 26

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2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of apparent flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship.  (See here for documentation.)

Reaping the Whirlwind

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The New York Times, in a front-pager, notices that the people of many states, given the opportunity to unseat activist judges, may just want to do so.  And the Times is, apparently, a little stunned by this effrontery of people who think they actually govern themselves: “Around the country, judicial elections that were designed to be as apolitical as possible are suddenly as contentious as any another race.”

This is what happens when the judges cease to be apolitical–the case of Iowa, at the center of the Times story, is a clear instance.  When the judges betray their trust, the people should remove them.  What is either surprising or alarming about this?

Struggling (Again) Over the Framers

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Ron Chernow, author of a successful biography of Alexander Hamilton, had an op-ed in this morning’s New York Times expressing concern that members of the Tea Party have called on the legacy of the Constitution’s framers in making their arguments about the out-of-control statism of modern liberal government.  Arguing that the Tea Party should not “presume to claim special ownership of the founding fathers or the Constitution,” Chernow presumes to set matters straight.  But like historian Joseph Ellis in a Washington Post op-ed attacking originalism back in May (which both Ed Whelan and I criticized at the time), Chernow offers evidence that explodes his own argument.

Chenow charges Tea Party figures with having a rosy view of the framers as all sweetly agreeing about the meaning of the Constitution they made.  There may be some small measure of truth to this charge.  But it doesn’t have much traction when we notice the context of contemporary politics, in which the forces of progressivism and liberalism have spent decades explicitly disdaining the framers of the Constitution and crafting policies that all them would surely have rejected.

Thus Chernow trots out the argument that was stale when Ellis used it four months ago against originalism–that the framers were a “disputatious” lot who quarreled constantly over the meaning of the Constitution they had joined together to make.  So indeed they were.  But just as this is no refutation of originalism, in which all the framers believed, it is no refutation of Tea Party tributes to the founding of the republic.  For we can confidently say–and this is surely all any Tea Party leader has ever claimed–that none of the framers was a statist; that none of them thought the powers of the federal government infinitely extensible over every species of human activity; that none of them thought the liberties of individual Americans were properly subject to the arbitrary power of a distant central authority.  Can we say all of these things about the Obama-Reid-Pelosi Democrats?

Chernow is clearly a little amused that one Tea Party document demands that “all legislation passed by Congress should specify the precise clause in the Constitution giving Congress the power to pass such a law.”  But a few paragraphs later, he adduces the example of Alexander Hamilton making his argument for the creation of a national bank by invoking the clauses of the Constitution that supported such legislation.  Will someone please issue Mr. Hamilton his Tea Party membership card now?  The fact that Madison and Jefferson saw things differently is nothing to the purpose of Chernow’s argument here.  They all agreed that the Constitution created a limited government, and disagreed about where the limits were.  How exactly does it undermine the reliance of the Tea Party on the legacy of the framers to observe that they had these disagreements?  Our case is rather different today, with a party in power that appears not to believe there are any limits to the power of government–and the federal government in particular–over individuals, families, businesses, and private associations. 

In our present circumstances, it is faintly ridiculous for Chernow to write the following paragraph:

Jefferson and his Republicans (not related to today’s Republicans) advocated states’ rights, a weak federal government and strict construction of the Constitution. The Tea Party can claim legitimate descent from Jefferson and Madison, even though they founded what became the Democratic Party. On the other hand, Washington and Hamilton — founders of no mean stature — embraced an expansive view of the Constitution. That would scarcely sit well with Tea Party advocates, many of whom adhere to the judicial doctrine of originalism — i.e., that any interpretation of the Constitution must abide by the intent of those founders who crafted it.

Not only does Chernow insinuate–what is quite false–that Washington and Hamilton did not adhere to originalism.  He manages also to suggest that today’s liberals can lay equal claim, with conservatives, to the legacy of the founding, because Washington and Hamilton took an “expansive view of the Constitution.”  As though the advocates of energetic government, ca. 1790, are to be equated with the architects of the modern welfare-regulatory-administrative state!  This is as if one were to say that, oh, John Locke and Norman Thomas, for instance, were basically on the same page because they believed in a thing called “equality.”

Facebook, Twitter, and More

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Just a reminder:  My Facebook page is at facebook.com/EdWhelanEPPC, and my Twitter account is @EdWhelanNRO

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere.  Just fill out the form below.  If you do sign up, you’ll receive an e-mail asking you to confirm. Please note that your e-mail address will not be visible to other folks on the list and that I will make no other use of your e-mail address.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

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Judicial Nominee’s Selective Protection of Hostile Speech

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In a lengthy (and characteristically thorough) post on the Volokh Conspiracy, Eugene Volokh expresses his concerns about one aspect of the record of Mississippi supreme court justice James E. Graves Jr., whose hearing on his nomination to a Fifth Circuit seat is scheduled for next Wednesday.  Here’s the gist:

In 2004, 2008, and 2009, the Mississippi Supreme Court considered whether state judges should be disciplined for their out-of-court statements that express hostility to particular groups. The key question in each case was whether the judges’ speech was protected by the First Amendment.

In 2004, Justice Graves took the view that a judge was not constitutionally protected against being disciplined for saying (in a letter to the editor of a local newspaper, and in a radio interview) that “gays and lesbians should be put in some type of mental institute.”

In 2008, Justice Graves also took the view that a judge was not constitutionally protected against being disciplined for saying (at a judicial seminar) that “African-Americans in Hinds County [where the judge was serving] can go to hell for all I care.”

But in 2009, Justice Graves took the view that a judge was indeed constitutionally protected against being disciplined for saying (in a speech to a political organiation) that “White folks don’t praise you unless you’re a damn fool,” and “If you have your own mind and know what you’re doing, they [white folks] don’t want you around.” 

This particular mix of results strikes me as hard to defend under the First Amendment. Those results of course could be defended by some people on the grounds that the first two statements (in those people’s view) were wrong or unjustifiable, and the third statement was right or justifiable. Such a defense, though, would not be consistent with First Amendment law, under which the constitutional rules cannot turn on whether a reviewing judge agrees with the speech at issue.

EPPC Amicus Brief in the Prop 8 Appeal

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On behalf of the Ethics and Public Policy Center—the think tank I head—I filed today an amicus brief in the Ninth Circuit appeal of Judge Vaughn Walker’s wild ruling against Proposition 8.  Here’s the opening of my brief:

It must be rare, if not unprecedented, that a federal district judge has had his rulings in a case reversed three times before his final judgment is even presented for appellate review.  But the occurrence of that rarity in this case barely begins to convey the breadth and depth of the judicial errors below.  The purpose of this brief is to provide a survey of the district judge’s remarkable course of misconduct in this case. 

My brief concludes that the inescapable explanation for Walker’s remarkable pattern of misconduct is that Walker “harbors a deep-seated animus against traditional marriage and that he has been unwilling or unable to contain his animus.”  (As I’ve previously highlighted, the lead brief of Proposition 8’s proponents is available here.)

New York Times Now Opposes “Extreme Judicial Blockade”

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A New York Times house editorial two days ago, titled “An Extreme Judicial Blockade,” criticizes Senate Republicans for “invok[ing] an obscure Senate rule that required [five of President Obama’s judicial nominees] to be re-nominated.”  The NYT doesn’t see fit to mention that that “obscure Senate rule”—which requires unanimous consent to keep nominations in the Senate over a recess—is the very rule that Senate Democrats, in a departure from Senate practice, invoked on multiple occasions against President George W. Bush’s nominees.  Nor does the NYT note that four years ago it treated the Senate Democrats’ return of judicial nominees as a clear message from Democrats that those nominees were “unacceptable”—and that it contended that President Bush, in not accepting that message, wasn’t being bipartisan.  Indeed, back then it highlighted claims by Senate Democrats that Bush’s renominations were “provocative” and “a clear slap in the face.”

As for the NYT’s assertion that Ninth Circuit nominee Goodwin Liu’s “views fall well with the legal and political mainstream,” I’ll refer the reader to my selective inventory of pre-hearing posts on Liu, my commentary (parts 1, 2, 3, and 4) on his hearing testimony, and my review (parts 1, 2, 3, and 4) of his post-hearing written responses.  (Do Senate Democrats really want a debate on the Senate floor on the Liu nomination in advance of November’s elections?)

I also find amusing this sentiment in the editorial:  “It would be nice if some Republican members of the Judiciary Committee voted for Mr. Liu and the four other re-nominees.”  Somehow I don’t recall the NYT expressing a similar sentiment in the Bush years, even as Senate Democrats engaged in far uglier conduct.

Finally, a few observations on the NYT’s statement that the Senate “had confirmed 61.4% of Mr. Bush’s nominees” at the “comparable point in the Bush presidency” versus “under 50 percent” for President Obama: 

(1) I’m pleased to take note that, thanks to the relentless efforts of Patterico, the Los Angeles Times has finally acknowledged that its claim last month that President Bush had 87% of his early judicial nominees “confirmed during the first 18 months of [his] administration” was wildly wrong. 

(2) As the methodology adopted by the Brookings Institution’s Russell Wheeler (discussed in this post) reflects, it’s sensible to build in some sort of lag time between nomination and confirmation in comparing confirmation rates across administrations.  If you instead look (as both the NYT and the corrected LA Times do) simply at how many nominations made during a period were confirmed during that same period, you end up including nominations that were made near the end of the period that could not reasonably have been acted on within that period.  So a president’s lower rate during that period may simply reflect the fact that he made more nominations very late in that period.

(3) As Russell Wheeler’s recent figures in my earlier post show, there is no meaningful difference between the confirmation rate of Obama and Bush lower-court nominees.

This Day in Liberal Judicial Activism—September 24

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1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution.  In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.…  When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit. 

International Human-Rights Law and the Unborn Child

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Is the unborn child protected by the great international declarations and conventions on human rights? Given the relentless pro-choice campaign to establish a human right to abortion, the question could hardly be more timely or more weighty.

In Human Rights and the Unborn Child, Rita Joseph argues cogently and clearly that an unborn child’s right to life is far more plausibly grounded in those instruments than is a right to abortion. She notes, however, that the unborn child’s rights have “been obscured for some decades now by the rise of a new pro-abortion ideology in the form of radical feminism,” which has conducted “a masterly campaign of ideological reinterpretation.” She is, moreover, witheringly critical of the reluctance of human-rights courts, particularly the Inter-American Commission and the European Court of Human Rights, to recognize the unborn child’s right to life.

Joseph concludes that “the human rights of the unborn child were recognized…in the foundation documents of modern international human rights law.” Her argument is impressive, demonstrating an informed grasp of the textual and contextual development of the relevant instruments. An instrument central to her case is the U.N. Declaration of the Rights of the Child (1959). A crucial paragraph in its preamble reads:

Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.

This Declaration confirms, she contends, international agreement that the Universal Declaration of Human Rights (1948) recognizes the rights of the unborn. She adds that the word “child” was understood in 1948 to include the child before birth. (She could have noted that the first definition of the word in the Oxford English Dictionary is the “unborn or newly born human being”). She recalls the historic legal prohibition on aborting any woman “with child” and the even longer Hippocratic prohibition on abortion, which was reaffirmed by the World Medical Association’s Declaration of Geneva only three months before the Universal Declaration: “I will maintain the utmost respect for human life from the time of conception, even under threat…”

This professional obligation was reiterated in 1968, only two years after the passage of the U.N. International Covenant on Civil and Political Rights, which explicitly provides that “Every human being has the inherent right to life” and that the death penalty shall not be carried out on pregnant women. Joseph’s conclusion that throughout the 30 year period from 1948, human rights were understood to apply to the unborn seems well-grounded. (She might, for good measure, have cited standard embryological texts across the same period confirming the contemporary understanding that the life of each human being begins at fertilization.)

No less important than the wording of the international instruments that explicitly or implicitly include the unborn child is their philosophical basis. As Joseph contends, their basis is not feminism, utilitarianism, or relativism, but natural law. Human rights are grounded in respect for human nature. According to Charles Malik, rapporteur to the Commission on Human Rights, which drafted the Universal Declaration: “The doctrine of natural law is woven…into the intent of the Declaration.” If rights were merely products of positive law, he wrote, they could change but if they “express my nature as a human being, then there is a certain compulsion about them: they are metaphysically prior to any positive law.”

Joseph also cites Johannes Morsink’s research into the drafting history of the Universal Declaration, which shows that the drafters held that human rights were “inherent and inalienable.” Morsink comments that when all prohibited discriminations are eliminated:

what we have left is just a human being without frills. And the Declaration says that the human rights it proclaims belong to these kinds of stripped down people, that is to everyone, without exception.

Joseph explains that the move towards recognition of universal and inalienable human rights was a direct response to the Nazis’ singling out groups of human beings for deadly discrimination, and that at no stage in the drafting history of the Universal Declaration was any attempt made to exclude any group of human beings.

Garnering further evidence for a protective interpretation, Joseph observes that the U.N. Committee on the Rights of the Child has not only called on states to introduce and strengthen “prenatal care for children” but has also explicitly condemned selective abortion (on the ground of sex, ethnic origin, social and cultural status, or disability) as a “serious violation” of the rights of the child. She adds that the U.N. Convention on the Rights of Persons with Disabilities (2007) provides that “every human being” has the right to life.

In light of all the above evidence, Joseph’s criticisms of human rights courts for failing to affirm the unborn child’s right to life are telling.

In conclusion, though not without its flaws (the analysis of judicial decisions could, for example, have been fuller and there is too much repetition) Human Rights and the Unborn Child is a valuable book. Human Rights judges in particular would do well to consult it.

John Keown is Rose F. Kennedy professor of Christian ethics at Georgetown University’s Kennedy Institute of Ethics.

The Judicial Rumble in New Jersey

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Gov. Chris Christie continues to fight the Left and the legal establishment in New Jersey. The Federalist Society has a new poll and white paper on the most recent controversy, which concerns the state Senate’s refusal to hold hearings for Christie’s nominee to the New Jersey Supreme Court.

Christie made judicial issues an important part of his campaign, and he continues to emphasize the importance of the state supreme court in stump speeches across the state. (See this video of Christie at a town hall, for example, in which he blames the court for putting the state in a fiscal mess by mandating property-tax levels.) The governor made headlines, and defied expectations, when he refused to reappoint Justice John Wallace at the end of his constitutional term. Wallace was perceived as a liberal judicial activist, had made many friends in Trenton over the years, and was the court’s only African American. Despite intense political pressure to reappoint Wallace, Christie kept a campaign promise to remake the court by instead nominating Anne Patterson, who was more in line with his judicial philosophy.

The move angered a lot of the liberal-left establishment in New Jersey, including Senate president Stephen Sweeney, who has refused to hold hearings on Patterson’s nomination. According to Sweeney: “This seat will stay open.” The nomination has been pending since May, and, in an interesting twist, the vacancy was recently filled when New Jersey Chief Justice Stuart Rabner decided to fill it with his own appointment. In the Federalist Society’s white paper, law professor Earl Maltz argues that the chief justice’s actions violate the text and original meaning of the New Jersey constitution. In the accompanying poll, New Jersey voters overwhelmingly disapproved of Senator Sweeney’s obstruction, and embraced a number of traditional legal principles:

A tri-partisan consensus emerged: 51% of self-identified Democrats, 60% of Independents, and 74% of Republicans said they oppose the President’s postponement of a hearing for Patterson. They were joined by 52% of liberals, 58% of moderates, and 69% of conservatives. Majorities of men, women, and voters of all ages and regions of the state rejected the delay tactic. . . . . When matched up against one another, pluralities, and in some cases, majorities, of men, women, and voters of all ages and regions of the state favored judicial restraint. Self-identified Democrats preferred activism above restraint (43%-38%) while by 2-to-1 Independents and Republicans each favored restraint over activism (55%-26% and 72%-19%, respectively).

Good news from the Garden State.

Senator Sessions on the Pace of Judicial Confirmations

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In a strong statement on the Senate floor today, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee comprehensively rebutted claims that Senate Republicans have engaged in unprecedented obstruction of judicial nominees.  As Sessions summed it up, “the reality is, Democrats’ systematic obstruction of judicial nominees during the Bush Administration was unprecedented then and it is unmatched now.”  Sessions’s case is too extensive to summarize, so I encourage interested readers to read his full statement.

Sessions also nicely placed the battle over judges in the broader context of the battle over judicial philosophy:

Democrats do not want judges who will act as a neutral umpire, calling balls and strikes and applying the law to the facts. No, they want judges who will make policy and rule based on their personal policy preferences and political beliefs and who will advance desired outcomes. Amazingly, during the Kagan hearings, Democrat Senators rolled their eyes and rejected Chief Justice Roberts metaphor of the judge as a “neutral umpire.” To them, that’s weakness. To them, neutrality, impartiality, is weakness.

As activist judges continue to override the will of the people, it is becoming increasingly apparent that the Democrats hold federal judiciary as the great engine of the left, picking and choosing which constitutional rights they will protect and which they will cast aside—the only consistent principle of which seems to be to advance the agenda of the left wing of the Democrat party.

An Officer by Any Other Name . . .

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It’s not just the conservatives who think Obama is instituting an “imperial presidency” anymore. Yale law professor Bruce Ackerman just described in the Wall Street Journal how the president’s appointment of Elizabeth Warren violates the constitutional requirement that administration officers be confirmed by the Senate. President Obama has dubbed her an “adviser,” but the name-switch can’t cure a constitutional defect. As long as she is still acting as an officer, i.e., giving not only advice but directives to the team of 30-40 people she leads (and “advice” that must be taken can hardly be merely advice), she must be confirmed as an officer. 

I like Elizabeth Warren. I studied bankruptcy under her in law school because I had heard she was one of the best teachers at Harvard, and she definitely lived up to her reputation. But this isn’t about whether Warren has good ideas for helping protect consumers in our current financial crisis. The president seems to think that when he finds a person or policy he likes (universal health care, for example) and perceives a serious problem, the Constitution should flex to allow his chosen solution. But that is not the American system of limited government. Let’s hope enough people on both sides of the aisle value our Constitution enough to stand up to this imperial president.

This Day in Liberal Judicial Activism—September 22

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2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.…  [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

This Day in Liberal Judicial Activism—September 19

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

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

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

Prop 8 Proponents’ Brief on Appeal

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Prop 8 proponents and Imperial County filed their opening briefs in the Ninth Circuit yesterday.  The Prop 8 proponents’ outstanding brief is available online here.  I’m not yet aware of an online link to Imperial County’s brief.

Here and below the fold (click “full article” or title of this post) is the introduction from Prop 8 proponents’ brief:

“Under rational-basis review, where a group possesses distinguishing characteristics relevant to interests the State has authority to implement, a State’s decision to act on the basis of those differences does not give rise to a constitutional violation.” Board of Trustees v. Garrett, 531 U.S. 356, 366-67 (2001). Given that marriage is “an institution regulated and controlled by public authority . . . for the benefit of the community,” Maynard v. Hill, 125 U.S. 190, 213 (1888), there is no doubt that the state has both interests in the institution of marriage and authority to implement them. At issue here is California’s decision to reaffirm the traditional definition of marriage as a union “between a man and a woman.” CAL. CONST. art. I, § 7.5. The essential question in this case, then, is whether such unions possess distinguishing characteristics that are relevant to marriage.

This is not a hard question. Indeed, because of the distinguishing procreative characteristics of heterosexual relationships, until quite recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) (emphasis added). And marriage has existed in virtually all societies, from the ancients to the American states, because it serves a vital and universal societal purpose—a purpose, indeed, that makes marriage, as the Supreme Court has repeatedly emphasized, “fundamental to the very existence and survival of the [human] race.Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (emphasis added). That purpose is, and has always been, in the words of the California Supreme Court, to “channel biological drives that might otherwise become socially destructive” into enduring family units and thereby “ensure the care and education of children in a stable environment.” De Burgh v. De Burgh, 250 P.2d 598, 601 (Cal. 1952).

Before the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing. Indeed, no other purpose can plausibly explain the ubiquity of the institution. As Bertrand Russell put it: “But for children, there would be no need of any institution concerned with sex.” BERTRAND RUSSELL,MARRIAGE & MORALS 77 (Liveright Paperbound Edition, 1970). “[I]t is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.” Id. at 156.

And until quite recently, the abiding link between marriage and society’s existential interests in responsible procreation and child-rearing was routinely recognized, without a hint of controversy, not only by the California Supreme Court, as noted above, but by every state appellate court to address the purpose of marriage. Likewise, eminent scholars, from all eras and all relevant academic fields, were agreed on the animating purpose of marriage. Blackstone put it well: the relation “of parent and child . . . is consequential to that of marriage, being its principal end and design; and it is by virtue of this relation that infants are protected, maintained, and educated.” BLACKSTONE, 1 COMMENTARIES *410. Marriage has served this universal societal purpose throughout history by providing, in the words of sociologist Kingsley Davis, “social recognition and approval . . . of a couple’s engaging in sexual intercourse and bearing and rearing offspring.” The Meaning & Significance of Marriage in Contemporary Society 5, in CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION (Kingsley Davis, ed. 1985) (ER428).

In light of all this, it is hardly surprising that every appellate court decision, both state and federal, to address the validity of traditional opposite-sex marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing. As the Eighth Circuit said in upholding Nebraska’s marriage amendment in 2006, the state’s interest in “ ‘steering procreation into marriage’ . . . justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.” Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006). Indeed, in the first reported decision addressing the issue, the Minnesota Supreme Court emphasized the defining link between marriage and “the procreation and rearing of children” in rejecting a gay couple’s due process and equal protection challenges to Minnesota’s marriage law. Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The United States Supreme Court dismissed the couple’s appeal for want of a substantial federal question—and thereby affirmed the decision below on the merits. Baker v. Nelson, 409 U.S. 810 (1972). Not a single Justice found the couple’s constitutional claims—the same ones at issue here—substantial enough even to warrant plenary review. These claims simply did not present hard questions.

The district court below, however, broke with this uniform line of appellate decisions, and did so without so much as citing, let alone addressing, a single one of them. The district court held that marriage has been universally defined and practiced as an opposite-sex institution by virtually every society in recorded history for no good reason. “The evidence did not show any historical purpose,” according to the district court, for the opposite-sex definition of marriage. ER148. “The tradition of restricting marriage to opposite-sex couples does not further any state interest.” ER159. It followed, accordingly, that the age-old, cross-cultural, opposite-sex definition of marriage is irrational.

Along the way to reaching this startling conclusion, it was necessary for the district court to make legislative fact “findings” that are even more startling. Most critically, the court found that there are no “real and undeniable differences” between same-sex and opposite-sex couples “that the government might need to take into account in legislating.” ER157. Specifically, same-sex couples are “situated identically” and are “exactly the same” as opposite-sex couples “for all purposes relevant” to marriage in California. ER165. This finding led the district court, in turn, to the remarkable conclusion that same-sex “unions encompass the historical purpose and form of marriage,” ER149, and “are consistent with the core of the history, tradition and practice of marriage in the United States,” ER148.

These findings are, we respectfully submit, patently false, and only by ignoring the “history, tradition, and practice of marriage in the United States,” and everywhere else, could the district court make them. Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence—the judicial authority from California and almost every other State, the works of eminent scholars from all relevant academic fields, the extensive historical evidence—is simply ignored. And the district court ignored it quite willfully; in the court’s view, apparently only oral testimony presented at trial constituted “evidence” on the issue (and its treatment of even this evidence was egregiously selective and one-sided, see infra at 38-43). As the district court explained, “Blackstone didn’t testify. Kingsley Davis didn’t testify.” ER350.

Having blinded itself to the genuine animating purpose of marriage, the district court was obliged to offer a different rationale for the institution, presumably one that is entirely indifferent to the gender of the spouses. Marriage, according to the district court, is mainly designed to provide official recognition and status to the “deep emotional bonds and strong commitments” of loving adult relationships. ER112, 115. While this purpose is indeed served by marriage, it obviously cannot begin to explain why the institution is a ubiquitous, enduring, cross-cultural feature of the human experience, nor why the right to marry ranks as fundamental—that is, why it is “ ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed.’ ” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)). It is equally obvious that marriage is “fundamental to the very existence and survival of the [human] race,” Zablocki, 434 U.S. at 384, not because it provides official recognition to loving adult relationships, but because it serves society’s existential interest in maximizing the likelihood that children are produced and raised in a stable, enduring family environment by the couple that brought them into the world.

Finally, the district court judge found that over seven million Californians, lacking any conceivable rational basis for supporting Proposition 8, were motivated solely by animosity and condescension toward gays and lesbians. “The evidence shows conclusively,” according to the district court, “that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples,” ER170, and that Proposition 8’s supporters were motivated either by “nothing more than a fear or unarticulated dislike of same-sex couples,” ER167, or by “a moral view that there is something ‘wrong’ with same-sex couples,” ER168. This charge is false and unfair on its face, and leveling it against the people of California is especially unfounded, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same-sex couples all of the same substantive benefits and protections as marriage. And it defames as anti-gay bigots not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve society’s interests—from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed the issue.

The simple truth is that “[t]here are millions of Americans,” as one of the Plaintiffs’ own expert witnesses has acknowledged, “who believe in equal rights for gays and lesbians … but who draw the line at marriage.” M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED 175 (2009) (ER1351) (quoting Rabbi Michael Lerner). And the people of California, 44 other states, and the vast majority of countries throughout the world continue to draw the line at marriage because that institution continues to serve a vital societal interest that is equally ubiquitous—to channel potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation.

Happy Constitution Day

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On September 17, 2010, the 39 delegates to the Constitutional Convention signed the document that created our government. In thanksgiving for their hard work to create a limited, democratic government unlike any that had gone before it, we renew our determination to defend the government they envisioned. These remarks by Pres. Calvin Coolidge provide a timely reminder of the importance of the principles laid out in the Constitution:

On an occasion like this a great temptation exists to present evidence of the practical success of our form of democratic republic at home and the ever-broadening acceptance it is securing abroad. Although these things are well known, their frequent consideration is an encouragement and an inspiration. But it is not results and effects so much as sources and causes that I believe it is even more necessary constantly to contemplate. Ours is a government of the people. It represents their will. Its officers may sometimes go astray, but that is not a reason for criticizing the principles of our institutions. The real heart of the American Government depends upon the heart of the people. It is from that source that we must look for all genuine reform. It is to that cause that we must ascribe all our results.

It was in the contemplation of these truths that the fathers made their declaration and adopted their Constitution. It was to establish a free government, which must not be permitted to degenerate into the unrestrained authority of a mere majority or the unbridled weight of a mere influential few. They undertook to balance these interests against each other and provide the three separate independent branches, the executive, the legislative, and the judicial departments of the Government, with checks against each other in order that neither one might encroach upon the other. These are our guaranties of liberty. As a result of these methods enterprise has been duly protected from confiscation, the people have been free from oppression, and there has been an ever-broadening and deepening of the humanities of life.

This Day in Liberal Judicial Activism—September 17

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A mixed day for the Constitution:

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

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

Re: LA Times’s Bogus Statistics on Confirmation Rate

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Eight days ago, I explained in detail that the assertion by a Los Angeles Times reporter in an August 30 article that President George W. Bush had 87% of his early judicial nominees “confirmed during the first 18 months of [his] administration” was wildly wrong.  I also showed that, contrary to the reporter’s charge of a massive 40-point gap, there was no meaningful difference between the pace at which President Obama’s lower-court nominees were being confirmed and the pace at which President Bush’s early nominees had been confirmed.  The following morning—that is, seven days ago—I e-mailed my post to the reporter, Carol J. Williams, and highlighted the fact that the very expert (Russell Wheeler of the Brookings Institution) whom she had quoted on other points had documented that Obama nominees were being confirmed at the same pace that Bush nominees had been.

Yet eight days later Williams’s article remains uncorrected—and her wild error continues to be quoted and credited.

Now it’s of course possible that Williams didn’t read my e-mail (though I’ll note that she has previously consulted me).  But it doesn’t seem possible that the editors of the Times are unaware of her error:  As Patterico pointed out two weeks ago, the Times’s own follow-on editorial substituted a 60% figure for Williams’s 87%.  (I’ll also note that Patterico twice—in his first post on the matter and in his post highlighting my post—urged his readers to contact the Times about the error.)

So it would appear that the Times lacks either the integrity or the efficiency to correct such a basic error.