Tushnet’s “Nothing” Analysis of AG Holder’s Political Override of OLC

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When I ran across Harvard law professor Mark Tushnet’s blog post complaining about people who “have been writing op eds [sic] and blogging about [Attorney General Holder’s] politicization of the Department of Justice” on the D.C. voting rights bill, I was expecting that Tushnet might express some meaningful disagreement with my blog posts (here and here) or my Washington Post op-ed.  Instead, the only one of his scattershot points that might be read to take issue with me is his objection to the assertion that the AG took an action “overruling” the OLC advice.  I used the term “overrule” or “overruled” twice in my op-ed, and I used the equivalent term “override” several times in my blog posts and op-ed. 

Objecting to the term “overruling,” Tushnet asserts in screaming boldface and all caps that “nothing has happened”—by which he seems to mean that the AG hasn’t done anything with respect to OLC’s opinion.  Well, that’s not how the Washington Post (on which I expressly relied) reported Holder’s own account of his action:

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

Tushnet seems, nonetheless, to think that there’s no action that the AG could possibly have taken yet.  The facts, admittedly, are unclear, which makes it rather odd that Tushnet maintains that he knows that “nothing has happened.”  One obvious possibility is that OLC prepared a bill comment for transmission to the Office of Legislative Affairs and that the AG ordered OLC not to send the bill comment to OLA or ordered OLA not to abide by the advice. 

Incoherent Academics for Koh

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It’s long been my experience that many liberal legal academics are surprisingly unable to engage in reasoned legal argument.  The latest example that’s come to my attention is Arizona State law professor Laura Dickinson’s response to my remarks about Harold Koh.  Contending that criticisms of Koh “have gone from silly to absurd,” Dickinson takes issue with (in fact, labels “absurd”) the opening sentence of the introductory post in my series on Koh, where I stated:

In a series of posts, I will explain how State Department nominee Harold Koh’s transnationalist legal views threaten fundamental American principles of representative government and how Koh would be particularly well positioned as State Department legal adviser to implement his views and to inflict severe and lasting damage.   

But despite the fact that her response comes after I have published three additional detailed posts about Koh, she doesn’t respond to any of the supporting arguments that I have already provided.  (And I’ll have much more to come.)

Dickinson also contends:

Ed Whelan has argued that Koh’s approach to transnational legal process would allow “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.” This is clearly incorrect. Koh’s book, The National Security Constitution, is all about how Congress and the executive branch both have an important role to play in pursuing national security issues. Thus, Koh’s vision of how national security matters should be debated actually gives more power to Congress – something Republican senators should want – than the Bush Administration’s policy of executive branch supremacy.

Set aside that, after several Google searches, I’m not quite sure where the quote that Dickinson attributes to me comes from.  I don’t dispute that the quote, even if Dickinson’s own invention, is a fair paraphrase of my position.  [A later thought:  Perhaps Dickinson is quoting from a transcript of a brief television or radio appearance of mine.  If so, it’s all the more amusing that she would bother to consult such a transcript but not trouble herself to address the detailed arguments in my posts.]

But Dickinson’s supposed rebuttal is an obvious non sequitur.  I’ll readily assume that her account of Koh’s book is accurate.  So what?  The fact that Koh believes that “Congress and the executive branch both have an important role to play in pursuing national security issues” does not remotely disprove the proposition that transnationalism would enable “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.”  Might someone respond to my actual supporting arguments?

Kmiec and George Square Off

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Some readers of this space may know about an exchange last month between Prof. Douglas Kmiec of Pepperdine (an Obama supporter) and Prof. Robert George of Princeton (an Obama critic), brokered by Dan Gilgoff of U.S. News, over the legal ramifications of the president’s executive order on the funding of embryonic stem cell research.  If you missed it, links are collected here at MoralAccountability.com.

That exchange ended with the open possibility of a face-to-face debate between George and Kmiec.  In the meantime, and preparatory to such a debate, Kmiec has posed a dozen questions to George, and George has provided his answers.  This latest exchange (again you can find links at MoralAccountability.com) ranges over subjects such as what science knows about when life begins, and what science, law, religion, and morality have to say to us about our obligations to respect human life.  It all makes you wish that the Supreme Court had thought this carefully about such matters when it was adjudicating Roe v. Wade.

Harold Koh’s Transnationalism—CIL as Federal Common Law

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Let’s now explore the transnationalist position on the domestic status of “customary international law” (CIL).  (For the short version, see the last long paragraph of this post.)

The Supremacy Clause of the Constitution states that the Constitution itself “and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”  So while the Constitution specifically addresses the domestic status of treaties (a topic of a post to come), it doesn’t do so for CIL.  Indeed, the only provision of the Constitution that addresses CIL is the Article I provision (section 8, clause 10) that states that Congress has the power to “define and punish … Offenses against the Law of Nations.”  So that provision invites the sensible reading that it’s up to Congress to decide which rules of CIL to import into domestic law.

As law professors Curtis Bradley and Jack Goldsmith explain in their joint law-review article, “Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (1997) (“Bradley & Goldsmith”), CIL was long understood not to have the status of federal law.  But, they argue, as “the result of a combination of troubling developments, including mistaken interpretations of history, doctrinal bootstrapping by the Restatement (Third) of Foreign Relations Law, and academic fiat, CIL has since the 1980s come to be regarded as “federal common law.”  (Bradley & Goldsmith, at 821.)  Bradley and Goldsmith offer an extended critique of this “modern position.”

The Bradley/Goldsmith article triggered a vigorous response by Harold Koh, titled (bizarrely) “Is International Law Really State Law?,” 111 Harv. L. Rev. 1824 (1998), to which Bradley and Goldsmith replied (in “Federal Courts and the Incorporation of International Law,” 111 Harv. L. Rev. 2260 (1998) (“Bradley & Goldsmith Reply”)).  I won’t try the impossible task of presenting a full summary of the competing positions set forth over more than 100 pages (and more than 600 footnotes), and I instead refer interested readers to the articles.  But I’ll highlight key aspects here.

Remarkably, this new status as federal common law has been conferred on CIL at the very time that the traditional CIL has transmogrified from its derivation in state consent reflected in a general and consistent practice of states and from its governance of relations among nations to the new CIL, which flows rapidly from various international pronouncements and heavily regulates a state’s treatment of its own citizens.  (Bradley & Goldsmith, at 838-842; see my previous post for more.) 

Bradley and Goldsmith spell out the logical, but largely overlooked, implications of the position that CIL is federal common law, including: 

*  If CIL is federal common law, it would be part of the “Laws of the United States” under the Supremacy Clause (as the Supreme Court has previously understood federal common law).  As such, it would trump all inconsistent state law and lead to a “dramatic transfer of constitutional authority from the states to the world community and to the federal judiciary.”  (Bradley & Goldsmith, at 846-847.)

*  If CIL is federal common law, it would seem to follow that the president, under his Article II obligation to “take Care that the Laws be faithfully executed,” is bound by judicial interpretations of CIL and vulnerable to having CIL judicially enforced against him.  (Bradley & Goldsmith, at 844-846.)

Tellingly, in his 37-page article responding to Bradley and Goldsmith, Koh does not dispute the implications of CIL as federal common law for inconsistent state law.  On the contrary, insisting that “[i]nternational law is federal law,” he argues that “the capacity of the federal courts to incorporate customary international law into federal law—unless ousted by contrary [and subsequent] federal directive—is absolutely critical to maintaining the coherence of federal law in areas of international concern.”  (Koh, at 1838, 1861; see Koh, at 1835 n. 61.) 

Koh himself reveals the stark consequences of his position as he complains that the Bradley/Goldsmith position that CIL is not federal common law would mean that “a treaty that is not ratified [by the United States], but that nevertheless announces important customary international law rules … need not be applied or respected by state courts or legislatures unless expressly executed by a statute or order emanating from the federal political branches.”  (Koh, at 1840.)  As Bradley and Goldsmith put it in reply to various passages of Koh’s like this, Koh is making the “extraordinary claim that if human rights treaty norms are accepted by much of the world community, the norms become CIL that is self-executing, supreme federal common law both before the United States has ratified the treaty and after it has ratified the treaty on the condition that the treaty norms will not apply as domestic federal law.”  (Bradley & Goldsmith Reply, at 2274.)  In other words, in Koh’s view, CIL applies as domestic American law even before the United States has ratified a treaty embodying CIL, even if the ratification is conditioned on the treaty’s not being self-executing (i.e., not having any domestic effect)—and even, as the logic flows, if the United States rejects the treaty.

Koh also does not clearly dispute that CIL, as federal common law, binds the president and may be judicially enforced against him.  In question-begging terms, he asserts that “controlling and valid presidential acts may supersede the application of customary international law rules” and refers neutrally to “the substantial scholarly debate that has raged over whether the President may or may not violate customary international law on the President’s own authority.”  (Koh, at 1835-1836 n. 61.)

So let’s look at the overall transnationalist game on customary international law:  The left-wing academics and NGO activists who populate international conferences will work together to generate and popularize supposed new norms of CIL on matters of interest to them—for example, hate speech, health care, and various other economic, social, and cultural “rights.”  Activist judges appointed by Presidents Obama and Clinton (and, alas, some appointed by Republican presidents) will hasten to recognize these new norms as rules of federal common law that (whether or not Congress would have had the constitutional authority to enact them) override inconsistent state laws and that the judges will be ready to enforce against non-compliant presidents.  The only available recourse for pesky citizens who still believe in the system of representative government that our Constitution creates will be congressional action to override the new CIL norms, action that would require a veto-proof majority in both houses of Congress while President Obama or any Europeanist successors of his are in office.  Such action will be made all the more difficult as the cultural elites clamor for Americans to show proper deference to international law and the federal judiciary. 

Anyone perceive a threat to American principles of representative government?

P.S.:  For my carefully documented exposition of what Koh and other transnationalists are up to (with heavy reliance on their own words), I am now accused of “bringing the full crazy on Harold Koh,” of “nativist paranoia,” of supposedly ignoring the “difference between descriptive and normative arguments”—oh, sure, Koh is just being “descriptive”! and he’d just do a lot of describing at the State Department—of “pretty shameful attacks,” and much more.  Never mind that the name-caller hasn’t identified a single thing that I’ve gotten wrong, or that my positions are drawn from, and largely identical to, those of Professors Bradley and Goldsmith.  Such accusations sure are easier than engaging in actual argument.

(Fourth in a series.  Previous posts here, here, and here.  See also my post on Koh and the First Amendment.  Next:  Treaties.)

Leveraged Democracy

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As Ramesh points out on The Corner, Vermont has now adopted same-sex marriage, but has done so democratically, with the legislature’s override of the governor’s veto of a bill.  This is how things ought to be done in a democracy, as I argue at The Public Discourse today.  But let’s not forget that the history of Vermont’s struggle over this issue goes back ten years, to the state supreme court’s decision in Baker v. Vermont, when the judges illegitimately instructed the legislature to choose between full-fledged marriage or civil unions with all the essential privileges of marriage.  The legislature back then chose the latter, people in Vermont got used to the phenomenon of gay couples “all but married,” and with that as the new starting point, the argument became compelling to enough Vermonters (or at least to enough of their legislators) that the final step to marriage seemed only just.

Would same-sex marriage have arrived in Vermont in 2009 without the state supreme court forcing the issue in 1999?  It’s impossible to be certain, but I think probably not.  So this is still, in part, a story of the leverage that judicial usurpation can produce in generating social change that legitimate representation of the people would continue to resist.

Re: Iowa’s Same-Sex Marriage Ruling

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In addition to Matt’s superb article, I’d also recommend Andy McCarthy’s NRO essay today.   

Prominent among the many hostile responses that my own immediate post about the Iowa ruling elicited was the claim that there’s no such thing as judicial activism—a claim often made by the same folks who, inconsistently, see lots of “conservative judicial activism.”  I’ve addressed this tired and empty claim on numerous occasions (including here).  I’ll just add here that if federal and state constitutions are truly indeterminate on a matter like the permissibility of traditional marriage laws (as some critics of the term “judicial activism” maintain), then judges, in a constitutional republic, have no warrant for overriding those laws.  Those who believe otherwise effectively advocate a system of government by judiciary, where the realm of representative government is confined to those matters that judges just don’t think are important enough or interesting enough to meddle in. 

Our judicial emperors have no clothes.  But the courtiers and sycophants of liberal judicial activism and the peddlers of imaginary robes will continue to pretend otherwise.

This Day in Liberal Judicial Activism—April 7

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1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material.  Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment.  Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.”  Yep, that carefully captures what viewing obscenity is all about.  (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)  

Iowa’s Same-Sex Marriage Ruling

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I tackle it in an article at The Public Discourse today.  Here’s how I begin:

What happens when judicial arrogance becomes so habitual as to become second nature? This past Friday, April 3, the Supreme Court of Iowa provided an answer: judicial arrogance transforms into smug self-deception.

Read the rest here.

Harold Koh’s Transnationalism—Customary International Law

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Let’s now turn to the vehicles that transnationalists use to implement their agenda.  In this post and the next, I will explore the first of three such vehicles, as I discuss what customary international law (CIL) is and present the transnationalist view of the domestic status of CIL.  I draw the next two paragraphs from an important law-review article (which I will discuss more fully in the next post) jointly written by Curtis A. Bradley (now of Duke) and Jack L. Goldsmith (now of Harvard), “Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (1997) (“Bradley & Goldsmith”). 

CIL and treaties are the two principal sources of international law.  “The traditional conception of CIL was that it resulted from ‘a general and consistent practice of states followed by them from a sense of legal obligation’” (quoting Restatement (Third) of the Foreign Relations Law of the United States)—in short, that CIL “was grounded in state consent.”  To ensure consent (as well as, it would seem to me, to ensure that a practice was indeed “customary”), “the passage of a substantial period of time was generally required before a practice could become legally binding” as CIL.  “CIL, like international law generally, primarily governed relations among nations, not the relations between a nation and its citizens.”  (Bradley & Goldsmith, at 838-839.)

“The post-World War II era has witnessed a dramatic transformation in the nature of CIL lawmaking.”  Most significantly, the new CIL is now less tied to state practice.  It is now generated from United Nations resolutions, multilateral treaties, and other international pronouncements “without rigorous examination of whether these pronouncements reflect the actual practice of states.”  Relatedly, the new CIL “can develop very rapidly.”  And it “is now viewed as regulating many matters that were traditionally regulated by domestic law alone.”  Specifically, the “human rights” norms that seem to be the product of a rapid and never-ending process of development “regulate a state’s treatment of its own citizens.”  (Bradley & Goldsmith, at 839-841.)

If the new CIL no longer arises from a general and consistent practice of states over a sufficient period of time to manifest state consent to a norm that has become customary, then who has gained the CIL-lawmaking power that states have lost?  The very folks who are invited to take part in the formation of United Nations resolutions, multilateral treaties, and other international pronouncements.  High on that list—surprise, surprise—are left-wing law professors like Harold Koh and “progressive” NGOs.  Indeed, Koh himself (in the course of trying to defend transnational law generally against the obvious charge that it is anti-democratic) lists “academics” first and “nongovernmental organizations” second among the various parties—here’s his list:  “academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments”—who are “interacting in a variety of private and public, domestic and international fora to make, interpret, internalize, and ultimately enforce rules of transnational law.”  Koh, “International Law as Part of Our Law,” 98 Am. J. Int’l L. 43, 56 (2004) (emphasis added).

Next:  The extraordinary status in domestic law that transnationalist academics in general—and Koh in particular—try to confer on the new CIL that they have been concocting.

(Third in a series.  Previous posts here and here.)

Harold Koh’s Transnationalism—What “Transnationalism” Is

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What is “transnationalism” generally?  Well, let’s start by considering how two academics—one a critic of transnationalism, the other an ardent proponent—have described it.

Our first academic contrasts a “nationalist jurisprudence” with a “transnationalist jurisprudence.”  A nationalist jurisprudence “is characterized by commitments to territoriality, extreme deference to national executive power and political institutions, and resistance to comity or international law as meaningful constraints on national prerogatives.”  A nationalist jurisprudence “largely refuses to look beyond U.S. national interests when assessing the legality of extraterritorial action,” has “largely rejected international comity as a reason unilaterally to restrain the scope of U.S. regulation,” and “dismiss[es] treaty or customary international law rules as meaningful restraints upon U.S. action.”  Proponents of a nationalist jurisprudence view “foreign legal precedents” as “an impermissible imposition on the exercise of American sovereignty.”

“Unlike nationalist jurisprudence, which rejects foreign and international precedents,” continues this first academic, a “transnational jurisprudence assumes America’s political and economic interdependence with other nations operating within the international legal system.”  Distinguishing between domestic and international law makes no sense, since “[d]omestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature.”  Transnational judges also don’t “distinguish sharply between the relevance of foreign and international law, recognizing that one prominent feature of a globalizing world is the emergence of a transnational law, particularly in the area of human rights, that merges the national and the international.”  For transnationalists, “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law, not simply to promote American aims, but to advance the broader development of a well-functioning international judicial system.”

Yes, that first academic is actually the ardent proponent of transnationalism, even though some of his statements might seem designed to persuade you that transnationalism is hooey.  In fact, the academic is State Department nominee (and Yale law school dean) Harold Koh himself (in “International Law as Part of Our Law,” 98 Am. J. Int’l L. 43, 52-54 (2004) (emphasis added) and “The Globalization of Freedom,” 26 Yale L.J. 305 (2001)). 

Let’s also consider the account provided by law professor Curtis A. Bradley (now of Duke), a prominent critic of transnationalism.  (Bradley’s 1999 article, “Breard, Our Dualist Constitution, and the Internationalist Conception,” 51 Stan. L. Rev. 529, 530-531, uses the terms “monist” (or “internationalist”) and “dualist” for “transnationalist” and “nationalist,” respectively.)

As Bradley puts it, the pure transnationalist model is that “international and domestic law are part of the same legal order, international law [both treaties and customary international law] is automatically incorporated into each nation’s legal system, and international law is supreme over domestic law.”  (Bradley acknowledges that most transnationalists in practice don’t entirely embrace—not yet, at least—the pure version of the second and third features of this model.)   In determining the domestic status of international law, transnationalism “looks outward to the structure and content of international law.”  By contrast, under the nationalist view, “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.”

Harold Koh’s Transnationalism

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In a series of posts, I will explain how State Department nominee Harold Koh’s transnationalist legal views threaten fundamental American principles of representative government and how Koh would be particularly well positioned as State Department legal adviser to implement his views and to inflict severe and lasting damage.  In this introductory post, I provide a skeletal outline of the basic arguments that I will be making. 

“Transnationalism” challenges the traditional American understanding that (in the summary, which I slightly adapt, of Duke law professor Curtis A. Bradley) “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.”  Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.

Transnationalists have three primary mechanisms for their revolution.  First, they advocate a new understanding of “customary international law” (or CIL) in which they and other international elites, rather than state practice, generate the norms of new CIL and in which those norms supposedly are binding as federal common law.  Second, they favor an extravagant reading of the treaty power in which treaties are presumptively self-executing (i.e., applicable as domestic law) and the treaty power is boundless in its scope (i.e., treaties can address the full range of domestic policymaking and thereby supplant—and even go beyond the scope of—congressional legislation).  Third, they urge the Supreme Court to reinvent the meaning of constitutional provisions to reflect selected contemporary foreign and international practices.  What transnationalism, at bottom, is all about is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.

Koh is a leading advocate of transnationalism.  Further, on the spectrum of transnationalists,  ranging from those who are more modest and Americanist in their objectives and sympathies to those who are more extreme and internationalist (or Europeanist), Koh is definitely in the latter category.  He is also very smart, savvy, determined, and dogmatic. 

The position for which Koh has been nominated—the State Department’s top lawyer—would give him plenty of opportunities to implement his views.  Among other things, he would be advising on the legal positions that the United States should be taking in federal courts on issues arguably implicating international law and before international bodies; he would be counseling State Department officials on international negotiations, treaty interpretation, and treaty implementation; and he would be a major player in interagency disputes on all these matters. 

I don’t anticipate that my posts will cover other areas in which the Koh nomination ought to be of deep concern—including its impact on the Obama administration’s detainee policies and its understanding of the President’s foreign-affairs powers.  But I suspect that Andy McCarthy and others will. 

This Day in Liberal Judicial Activism—April 6

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1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court.  His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history.  As one of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”  Also from Lazarus:  “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”  (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)  

My Washington Post Op-Ed on AG Holder’s Political Override of OLC

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The Sunday edition of the Washington Post will feature this op-ed of mine criticizing Attorney General Holder’s override of the Office of Legal Counsel’s determination that the so-called D.C. voting rights bill is unconstitutional.  My closing:

Eleanor Holmes Norton, the nonvoting D.C. delegate to the House who aspires to be its voting representative, has made clear that she regards questions of constitutionality as irrelevant and that she thinks members of the House and Senate do, too. “I don’t think members are in the least bit affected in their votes on the question of its constitutionality,” she said just last week. “People vote their politics in the House and in the Senate.”

If true, that’s a very sad commentary on Congress. It’s even sadder that it appears to apply to our attorney general as well.

This Day in Liberal Judicial Activism—April 4

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1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote.  On the Court from 1939 until 1975, Douglas is the longest-serving justice in history.

In his 2003 New Republic review of a biography of Douglas (Wild Bill:  The Legend and Life of William O. Douglas, by Bruce Allen Murphy), Seventh Circuit judge Richard A. Posner offers this succinct summary of Douglas’s judicial career:  “For Douglas, law was merely politics.”  Here’s Posner’s colorful fuller assessment:  “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended.  Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge—who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.” 

As Posner acknowledges, one can, of course, “be a bad person and a good judge, just as one can be a good person and a bad judge.”  By the evidence, Douglas was both a terrible person and a terrible judge.

Two More Appellate Nominees

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Yesterday President Obama announced two additional appellate judicial nominations: Maryland district court judge Andre Davis for the U.S. Court of Appeals for the Fourth Circuit and New York district court judge Gerald Lynch to the U.S. Court of Appeals for the Second Circuit.  The Baltimore Sun has more on the Davis appointment here.

The Iowa Supreme Court’s Attack on Marriage

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The lawless judicial attack on traditional marriage and on representative government continues.  Today the Iowa supreme court ruled unanimously (7-0) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.”  Amidst the opinion’s 69 pages of blather, there are two key assertions (and they’re nothing more than that): 

(1) “[E]qual protection can only be defined by the standards of each generation.”  (p. 16)

If you were not attuned to the deceptive rhetoric of living-constitutionalist judges, you would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation reflected in the statute that Iowa adopted in 1998.  But no: 

(2) “The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.”  (pp. 16-17)

 

What gobbledygook. 

The judicial knaves who proudly regard themselves as trailblazers (see pp. 17-18) in carrying out this latest assault on the powers of citizens are Iowa chief justice Marsha K. Ternus and associate justices Mark S. Cady (author of the opinion), Michael J. Streit, David Wiggins, Daryl Hecht, Brent R. Appel, and David L. Baker.

[Cross-posted on The Corner]

This Day in Liberal Judicial Activism—April 3

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2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators.  Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.”  In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.”  Conrad’s nomination will expire months later without his ever receiving a hearing.

Re: Hiding Hamilton

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In a post titled “Leahy Strikes A Partisan Pose on Judges,” CQ’s Legal Beat adds these details to what I have previously conveyed about yesterday’s hearing on David Hamilton’s nomination to the Seventh Circuit:

Vermont Democrat Patrick J. Leahy insisted on holding Hamilton’s confirmation hearing, despite GOP requests for a delay until after the upcoming two-week congressional recess.

Leahy not only held the hearing, he scheduled two nominees for executive branch posts to appear as well. And shortly before the hearing started, Leahy moved it to the beautifully adorned but very small Senate Appropriations hearing room on the ground floor of the Capitol. Dozens of relatives and friends of the nominees, along with committee staff and reporters, crammed themselves into the standing-room-only hearing. There weren’t even enough chairs at the table for all of the committee members, had they chosen to show up.

More on Dahlia Lithwick on Harold Koh

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A follow-up to my post agreeing with Dahlia Lithwick that those of us who are alarmed by State Department nominee Harold Koh should not base our case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts:

Let me briefly discuss just a couple of the many things that Lithwick gets wrong in her essay. (I’ll leave aside Lithwick’s ongoing effort, which Jonathan Adler has aptly remarked on before, to reposition herself from her previous role as a perpetrator of the “vicious slash-and-burn character attack” to her new role as a hypersensitive bemoaner of any criticism of nominees.) 

Lithwick contends:

The underlying legal charge from the right is that Koh is a “transnationalist” who seeks to subjugate all of America to elite international courts. We’ve heard these claims from conservative critics before. They amount to just this: The mere acknowledgment that a body of law exists outside the United States is tantamount to claiming that America is enslaved to that law. The recognition that international law even exists somehow transforms the U.S. Supreme Court into a sort of intermediate court of appeals that must answer to the Dreaded Court of Elitist European Preferences.

Set aside Lithwick’s apparent insinuation that “transnationalist” is an epithet invented by conservatives to stigmatize folks like Koh, when in fact Koh himself, as author of articles like “Transnational Public Law Litigation” and “Why Transnational Law Matters,” has championed the label.  As she often does, Lithwick, rather than accurately presenting and engaging opposing arguments, proceeds with argument by wild distortion.  The italicized passages are an absurd misrepresentation of conservative critiques of Koh.  (See, for example, my post here and John Fonte’s post.  And for conservative critiques of transnationalism generally, see the article by John Fonte linked to in his post and John Bolton’s recent Commentary essay, “The Coming War on Sovereignty.”)

Lithwick also asserts:

Harold Koh is not a radical legal figure. He has served with distinction in both Democratic and Republican administrations (under Presidents Clinton and Reagan), and in that capacity he sued both Democratic and Republic [sic] administrations.* He was confirmed unanimously 11 years ago, and yet this time around, he is a threat to American sovereignty.

Here Lithwick resorts to insipid makeshift arguments that she herself would not apply to others.  So what that Koh was a junior career lawyer in OLC during the Reagan Administration?  Is that evidence that he is not now a radical legal figure?  Well, then, I guess that Lithwick has never attacked, and would never attack, Samuel Alito as extreme, since Alito served with distinction as a career prosecutor in the Carter Administration.  And how does Koh’s confirmation 11 years ago foreclose examination of what we have learned about him, and about the transnationalist threat, in the meantime?  Again, would Lithwick maintain that because, say, Justice Scalia was confirmed unanimously, she couldn’t and wouldn’t oppose his elevation to Chief Justice?  Ridiculous. 

* I have no idea what the second half of this sentence is supposed to mean.  I’ll presume an editing glitch.

Dahlia Lithwick on Harold Koh and Sharia

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As usual (and as I may explain more fully in a longer post), Slate’s Dahlia Lithwick gets a lot of things wrong in her essay lashing out at critics of Harold Koh, President Obama’s nominee to be the top lawyer at the State Department.  But there is one important point on which I agree with Lithwick:  Given the current state of the record, Koh’s critics (a group to which I belong) should not base their case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts.  They should not do so, first and foremost, because it is far from clear that Koh actually made any such remark.  They should not do so, secondly, because any such remark, even if made, may actually be entirely innocuous and defensible.  (Imagine, say, a contract that has a choice-of-law provision that specifies that the sharia commercial law of an Islamic country shall govern disputes over the contract, no matter where the lawsuit is filed; is it clear that U.S. courts shouldn’t look to that law to determine the interest rate, if any, on any amounts past due?)  They should not do so, thirdly, because there is so much else in Koh’s record that is both indisputable (as a matter of fact) and highly objectionable.  (See, for starters, my posts here and here and John Fonte’s post.)

I hasten to add that the New York Post column by Meghan Clyne that is the special target of Lithwick’s ire is far more balanced and fair on this matter than Lithwick suggests:  Clyne gives equal play to Koh’s spokeswoman’s account, which is far from a clear denial. 

[Cross-posted on The Corner]

Hiding Hamilton

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If further evidence were needed that Senate Judiciary Committee chairman Patrick Leahy is afraid that adherence to the usual processes would enable Republicans to demonstrate that Seventh Circuit nominee David Hamilton (see here, here, here, and here) is not the “moderate” the Obama administration claims him to be, today’s sham public hearing on Hamilton’s nomination would provide it.

Carrying out his April Fool’s stunt, Leahy proceeded with the hearing today on Hamilton’s nomination—a mere 15 days after Hamilton’s nomination and barely a week after he had completed the submission of his Senate questionnaire materials.  The rush was all the more remarkable in light of the fact that Hamilton has authored more than 1200 opinions in nearly 15 years as a federal district judge and submitted approximately 2,000 pages of speeches and articles.  To put this rush in context:  During the Bush 43 administration, the average time from nomination to hearing for federal appellate nominees was 166 days overall, and 197 days while Leahy was chairman. 

But it gets worse:  Less than an hour before the scheduled start of the hearing, Leahy moved it from the committee’s usual hearing room (in a Senate office building) to a smaller and very crowded room near the Senate floor.  As a result, the usual hearing webcast did not occur.  Plus, I’m told that Republican staffers were initially turned away, and that it’s doubtful that any members of the public were able to attend.

By letter to Leahy, the committee Republicans complained about the hearing schedule and requested that Hamilton appear again for a second hearing after they have had adequate time to review his record.  (The letter cites as precedent for a second hearing the two hearings in 2003 on John Roberts’s nomination to the D.C. Circuit.)  I’m also told that on the one previous occasion that folks can remember when a judicial-confirmation hearing was held off the Senate floor rather than in a hearing room—a hearing on President Bush’s nomination of Charles W. Pickering to the Fifth Circuit—Democrats relied on that fact in support of their successful request for a second hearing on Pickering.

Update:  I’m further informed that committee Republicans, in protest of the extraordinary rush, declined to take part in the hearing.

Re: AG Holder’s Political Override of OLC

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Some follow-up comments on Attorney General Eric Holder’s politicized override of OLC’s advice that the pending bill to give D.C. a seat in the House of Representatives is unconstitutional:

1.  The conclusion that the new OLC—led by deputies (including very liberal legal academics) selected and appointed by the Obama Administration—reached is not merely the same conclusion that OLC reached under the Bush Administration two years ago.  It’s been—or, rather, had been, until Holder’s override—the Department of Justice’s consistent position dating back at least as far as Attorney General Robert F. Kennedy in 1963 or so.

2.  Colleagues who served with me in DOJ under Attorney General Ashcroft, who has been wrongly and viciously demonized by the Left, have two reactions:  (a) If Ashcroft had ever done anything remotely similar, it would have generated a full-blown scandal.  (b) Ashcroft would never have done anything remotely similar.

3.  In office for less than two months, Eric Holder has already proven to be the craven political hack that Andy McCarthy warned about.  It’s only going to get worse.

4.  There are grave concerns over whether Dawn Johnsen, the nominee to head OLC, will politicize OLC’s legal advice.  Holder’s shenanigans ought to reinforce the importance of those concerns.

5.  Solicitor General Elena Kagan was not yet in her position when Holder used the SG’s office to pull a cheap end-run around OLC.  But now that she is in office, it’s her institutional responsibility not to let Holder hide behind her office’s virtually meaningless advice.  Let’s see if she lives up to her responsibility.

6.  The Left has vehemently attacked DOJ under the Bush Administration for supposedly “politicizing” advice on national-security matters.  Let’s just assume, for the sake of argument, that the attack is valid (rather than assume that the positions taken by the folks in Bush’s DOJ, whatever dispute there may be over the merits of some of those positions, were adopted by those folks in good faith as their best reading of the law).  At least the Bush DOJ was acting to promote the paramount interest of national security.  By contrast, AG Holder is corrupting DOJ’s legal processes for the petty partisan purpose of giving D.C. a vote in the House.  (Matt Franck reminds us of another attorney general whose corruption elicited Thomas More’s famous line in A Man for All Seasons:  “Why Richard, it profits a man nothing to lose his soul for the whole world … but for Wales?”)

Please don’t tell me that fundamental issues of justice are at stake.  For starters, there are lawful means, as Andy has outlined, of remedying the supposed injustice.  Beyond that, there are offsetting advantages that D.C. residents already enjoy, including three electoral votes and access to the in-state tuition rate (or $10,000 less than the ordinary out-of-state rate) at the more than 2,500 public colleges and universities in the 50 states.  And D.C. residents who don’t like the trade-off are free to relocate.

[Cross-posted on The Corner]

Politics, Justice, and the D.C. House Seat

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Andy McCarthy and Ed Whelan are all over this story in the Washington Post about the shenanigans at Eric Holder’s Justice Department over the constitutionality of the bill to give D.C. a House seat (my short course on the subject begins here).  I am reminded of a scene in Robert Bolt’s A Man For All Seasons, when Richard Rich shows up to perjure himself at Thomas More’s trial and thus obtain the conviction that is otherwise beyond the government’s grasp.  Rich wears a chain of office and More asks him what it signifies; Rich replies that he has been made attorney general for Wales.  More rejoins something like (if memory serves): “Oh, Rich, it profits a man nothing to sell his soul for the whole world . . . but for Wales?!”

So too here.  It profits us nothing to sell out the Constitution and the integrity of the Justice Department for something big and important.  But for a D.C. House seat?!

This Day in Liberal Judicial Activism—April 1

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2008—Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat associate justice Louis B. Butler Jr.’s bid to remain on the court and elect Michael Gableman in his place.

AG Holder’s Political Override of OLC

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Let me add to Andy McCarthy’s post about this remarkable lead story in today’s Washington Post, which reports that Attorney General Holder has rejected the legal opinion of the Department’s Office of Legal Counsel that the so-called D.C. voting rights bill pending in Congress is unconstitutional.  According to the article, the new OLC—led by deputies (including very liberal legal academics) selected and appointed by the Obama Administration—reached the same conclusion that OLC had reached under the Bush Administration two years ago:  the bill is unconstitutional.  But dissatisfied with this answer, Holder turned to the Solicitor General’s office to ask it the very different question whether it “could defend the legislation if it were challenged after its enactment.” 

Holder wasn’t asking the SG’s office for its best view on whether or not the bill was constitutional (a role that belongs to OLC, not to the SG).  He was asking it merely whether the position that the bill is constitutional is so beyond the pale, so beyond plausible defense, so legally frivolous, that the SG’s office, under its traditional commitment to defend any Act of Congress for which any reasonable defense can be offered, wouldn’t be able to defend it in court.  And based on the virtually meaningless answer from the SG’s office that it could defend the legislation, Holder overrode the OLC opinion.

At his confirmation hearing, Holder promised not to politicize DOJ’s legal positions.  As the Post’s article reports:

“We don’t change OLC opinions simply because a new administration takes over,” he said. “The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law.”

From today’s Post story, it appears that on the D.C. voting rights bill Holder has ignored the “best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be” and has imposed a “political process” designed to advance his, and the Obama Administration’s, policy position in favor of giving D.C. a vote in the House of Representatives. 

The Post article quotes me, correctly, as labeling Holder’s decision to override OLC’s advice a “blatant abuse” of OLC.  That judgment of mine is based on the narrative above (which the reporter recounted to me).  I recognize that OLC exercises authority delegated by the Attorney General to give binding legal advice and that Holder, as Attorney General, has the ultimate (and rarely exercised) authority to override OLC.  But the Post story indicates that he has done so on improper grounds and through improper processes. 

[Cross-posted on The Corner]

On Glenn Beck Show on Harold Koh

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I’m scheduled to be on the Glenn Beck Show on the Fox News Channel at 5 p.m. ET today to discuss President Obama’s terrible nomination of Yale law school dean Harold Koh to be the State Department’s top lawyer.  (This New York Times profile yesterday of Glenn Beck calls his program “a phenomenon: it typically draws about 2.3 million viewers, more than any other cable news host except Bill O’Reilly or Sean Hannity, despite being on at 5 p.m., a slow shift for cable news.”)

Obama at Notre Dame

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That’s the subject of an article I’ve written at MoralAccountability.com, replying to an op-ed by Kenneth Woodward in yesterday’s Washington Post.

Study on ABA Bias

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A follow-up to yesterday’s post:  The new study by political scientists indicating that the ABA’s judicial-evaluations committee has over time been ideologically biased against conservative nominees is available here (though I think that for now you have to sign up as an SSRN member to get access to it).  I haven’t read the study yet, and will leave it to social scientists to sort out whether its statistics demonstrate what attentive observers already know.

This Day in Liberal Judicial Activism—March 31

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1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime.  Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  (Somehow those “evolving standards” are seldom broadly reflected in actual legislation.)    

Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.”  Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.”  Asks Frankfurter rhetorically:  “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?”  Even far more in recent decades than in 1958, the answer to Frankfurter’s question is plainly yes. 

Seventh Circuit Nominee David Hamilton—NARAL’s Guy

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The same day his nomination was announced, I outlined basic evidence showing that Seventh Circuit nominee David F. Hamilton is not the “moderate” that the Obama administration is trying to sell him as.  The abortion-advocacy group now using the moniker NARAL Pro-Choice America evidently agrees, as it’s sending around an e-mail (a copy of which a recipient has forwarded to me) in which NARAL’s president solicits funds for its efforts to “help confirm two of President Obama’s nominees:  Gov. Kathleen Sebelius to head the Department of Health and Human Services and David Hamilton for a critical federal judgeship.” 

Given Hamilton’s extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion, NARAL’s support is no surprise.  And if NARAL needed any further assurances about Hamilton, I’m sure that its folks would have learned what they needed to from Hamilton’s sister-in-law, OLC nominee (and abortion radical) Dawn Johnsen.

Impartial? No, Askew

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In a New York Times article available online now but dated tomorrow, Adam Liptak reports on the new study indicating—shock of shocks!—that the ABA’s judicial-evaluations committee has over time been ideologically biased against conservative nominees.  (I previously mentioned the new study briefly at the end of this post; it will be presented at a political-science conference next month, and, I gather, is not available now.  Update:  The study is available here, though I think that for now you have to sign up as an SSRN member to get access to it. 

I’d like to highlight this passage in the article:

Kim J. Askew, the chairwoman of the association’s 15-member Standing Committee on the Federal Judiciary, which performs the evaluations, said her group is independent, hardworking and completely divorced from politics.

 

“We are an impartial group of lawyers that bring a peer review to the process,” Ms. Askew said. “We are all lawyers. We are officers of the court. We speak the language of the law. We do not consider politics.”

What a sorry falsehood.

Yes, that’s the same Kim Askew who was so “completely divorced from politics” that she continued to serve on the Board of Trustees of the Lawyers’ Committee for Civil Rights—a left-wing group that fervently opposed leading nominees of the Bush Administration—while evaluating Bush Administration nominees.  And the same Askew who remains so “completely divorced from politics” that she evidently continues to serve as a trustee of that group.

That’s the same Kim Askew who was so “impartial” that her primary evidence that Bush nominee Michael B. Wallace lacked “judicial temperament” was his representation of the Mississippi Republican party in a 1984 congressional redistricting case—a case in which plaintiffs’ counsel was none other than … the Lawyers’ Committee for Civil Rights and in which Askew, in evaluating Wallace, was assessing the weight and credibility of comments (and quite possibly even charges) made by LCCR lawyers. 

That’s the same Kim Askew who was so devoted to fair process that she violated the ABA’s own procedures in a manner that deprived Wallace of any effective opportunity to contest and refute the charges against him. 

That’s the same Kim Askew who was part of former ABA president Michael Greco’s blatant stacking of the ABA committee with members who had partisan left-wing ideological attachments.  (See this National Review article of mine and these posts for documentation of these points.)

Rick Garnett on Government Speech and Religious Symbols

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In USA Today, First Amendment expert (and Bench Memos contributor) Rick Garnett has an interesting piece addressing how the Supreme Court ought “to bring clarity to its murky doctrines relating to government speech and religious symbols”:

The court should, in a predictable and principled way, enforce the establishment clause by preventing attempts by government to exercise religious authority or to interfere with religious communities’ self-government, and leave the monitoring of monuments to the good sense of citizens and to the give-and-take of ordinary politics.

Linda Chavez’s Current Column

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is about President Obama’s choice to head the Justice Department’s civil rights division, Thomas Perez, and more specifically a troubling article he wrote in 2006 for the Journal of Health Care Law & Policy. The article urges medical schools to use racial preferences in admissions and to be aggressive in developing empirical evidence and legal theories (even beyond what the Supreme Court, alas, had already accepted for undergrad and law-school admissions in its 2003 University of Michigan decisions) to defend them. Perez is likewise eager “to examine whether a similar case could be made in other professions.” The article, while not stupid, completely ignores evidence on the other side (in particular, that marshaled over the years by the American Enterprise Institute’s Sally Satel, no stranger to NRO), as well as the obvious costs to having second-rate doctors providing healthcare to folks whom he already believes to be underserved. Thanks to Nathan Mehrens of Americans for Limited Government for bringing Perez’s article to our attention.

This Day in Liberal Judicial Activism—March 30

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1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer “spent 90 minutes—twice—staring at reference librarians.”  In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, “unnecessary staring.”  But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional.  (See This Week entry for Feb. 14, 1992, for more on this case and the Third Circuit’s reversal of Judge Sarokin’s ruling.)

This Day in Liberal Judicial Activism—March 29

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2000—In dissent (in City of Erie v. Pap’s A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections.  Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general.  So what?  As Justice Scalia responds:  “As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.”

LA Times, Home o’ Homophobiaphobia

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The editors of the Los Angeles Times tut-tut at Rep. Barney Frank’s use of the word “homophobe” to describe Justice Antonin Scalia, but they really agree with Frank about this, saying Scalia’s opinions reveal his “utter lack of sympathy for gays and lesbians.”

Sigh.  How many times must it be said that is not the duty of a Supreme Court justice to have “sympathy” for anyone at all?  It is his duty to render judgments about the meaning of the law of the land. 

Anyway, none of the quotations from Scalia’s opinions that the LAT drops into its editorial can tell us anything about his private views on the subject of homosexuality.  The editors try to insinuate something sinister about his having referred in Lawrence v. Texas (2003) to the “homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”  But this is a purely factual statement, and a dead-on accurate one to boot.  Does the LAT deny there is such an agenda, or that there are such activists, or that “moral opprobrium” directed at “homosexual conduct” is exactly what they want to eliminate?  Isn’t that, in fact, a pretty objective description of, say, Barney Frank?

Making public policy on the basis of moral opprobrium about this conduct or that is as old as political life itself.  It is, in truth, both unavoidable and the best possible basis for making any policy whatsoever.  (Who wants to step up and say that laws should be devoid of any moral basis?)  Scalia defends the simple, unassailable proposition that nothing in the Constitution forbids such public policy where homosexual conduct is concerned.

The Times’ editors are weirdly interested in “[h]ow Scalia feels about gays and lesbians.”  They should get a life.

Meanwhile, elsewhere in the LAT opinion factory, Tim Rutten writes about the Obama-Notre Dame story as though he believes Dan Brown is a serious historian who unfortunately left out the chapter about the Republican right wing being the secret power pulling the strings of slavish Papists.  I’m afraid Rutten shouldn’t be allowed near a keyboard again until he gets some help.

Mudslinger Harry Reid

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On The Corner, Kathryn Lopez passes along Senate majority leader Harry Reid’s claim that Chief Justice Roberts “didn’t tell us the truth,” and I point out that Reid is being his usual irresponsible self.

This Day in Liberal Judicial Activism—March 27

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1931—Stephen Reinhardt is born in New York.  Appointed to the Ninth Circuit by Jimmy Carter in 1980, Judge Reinhardt has earned notoriety as the “liberal badboy of the federal judiciary.”  In his overtly political view of judging, “The judgments about the Constitution are value judgments.  Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.”  Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.”

Seventh Circuit Nominee David Hamilton: “Allah” Yes, “Jesus” No

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In 2005, in Hinrichs v. Bosma, federal district judge (and now Seventh Circuit nominee) David Hamilton enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings.  In so doing, Hamilton adopted one reasonable construction—though not the only one available—of the Supreme Court’s messy Establishment Clause rulings.  (In denying a stay of Hamilton’s order pending appeal, the majority on a divided Seventh Circuit panel indicated that its “initial reading of the case law” strongly inclined it to Hamilton’s reading, but the Seventh Circuit ultimately reversed Hamilton on standing grounds.)

One peculiar aspect of Hamilton’s ruling is how he drew the line between “sectarian” and “non-sectarian” prayers.  On the one hand, Hamilton made clear that prayers that “use Christ’s name or title” are sectarian.  On the other hand, he ruled (on a post-judgment motion) that it is presumptively not sectarian for a Muslim imam to offer a prayer to “Allah”:

The Speaker has also asked whether, for example, a Muslim imam may offer a prayer addressed to “Allah.” The Arabic word “Allah” is used for “God” in Arabic translations of Jewish and Christian scriptures. If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio, or any other language’s terms in addressing the God who is the focus of the non-sectarian prayers contemplated in Marsh v. Chambers, the court sees little risk that the choice of language would advance a particular religion or disparage others. If and when the prayer practices in the Indiana House of Representatives ever seem to be advancing Islam, an appropriate party can bring the problem to the attention of this or another court.

I find it difficult to make sense of Hamilton’s explanation.  The fact that “Allah” is Arabic for “God” would seem to have little or no bearing on what a Muslim imam praying in English means when he invokes “Allah” or what his audience would reasonably understand him to mean. 

More generally, it may only be Hamilton’s naivete, or a politically correct favoritism of Islam over Christianity in the public square, that causes him to “see[] little risk that the choice of [“Allah”] would advance a particular religion or disparage others.”  By e-mail, Robert Spencer of Jihad Watch has called to my attention two notable examples in recent years (here and here) of “Islamic clerics offering highly sectarian prayers before unwitting infidel audiences.”  According to Spencer, “Muslim imams have made canny use of the apparent non-sectarianism of their prayers, aided by the universality or generic character of the word ‘Allah’ or ‘God,’ in order to engage in what were actually some rather aggressive statements of Islamic supremacism.”

Help Me, Obi-Wan Kenobi, You’re My Only Hope

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That’s the scene from Star Wars that kept running through my head this morning as I read Richard A. Epstein’s article in the Wall Street Journal.  Epstein, of the University of Chicago law school, tries mightily to find a way for the courts to invalidate the threatened “bonus tax” on the earnings of people employed by financial institutions receiving bailout money.  He rightly notes that neither the bill of attainder clause nor the ex post facto clause will do the work he wants.  And Epstein’s “last, best hope” that the courts will use “substantive due process [or] the takings clause” is, he recognizes, not much of a hope.  He regards this as regrettable, but it really is a good thing, since “substantive due process” is a constitutional fraud through and through, and the idea that taxes are “takings” for which the government owes compensation is a self-evident absurdity.  Yet he finishes the article by saying “if Congress doesn’t stop its descent into the abyss, the Court should confess its past sin of constitutional passivity and stop it for them [sic].”

What sin is he talking about?  (And is Andrew Cohen going to accuse him of religious fervor?)  The deeper substratum of Epstein’s approach comes in this paragraph:

Two basic principles that animated our Constitution appear to have no traction today.  One holds that property is the guardian of every other right.  The second asserts that voluntary exchange is the source of general peace and prosperity.  Today’s Supreme Court looks to neither principle for guidance.

Whew.  I sure hope not.  I too prize property and voluntary exchange, but while these are highly important principles, they are moral or political ones that undergird our constitutional order.  They are not, however, legal principles in any meaningful sense of the term, and the invitation to courts of law to “enforce” them is an open invitation to judicial lawlessness.  Every tax, every regulation, has an adverse impact in some sense on property, or interferes with “voluntary exchange.”  To license courts to choose the just and unjust policies in the whole universe of taxes and regulations is an appallingly anti-constitutional idea.

I needed a different scene from that movie, I think–something about avoiding the Dark Side of the Force.