This Day in Liberal Judicial Activism—March 25


1993—In her plurality opinion in Wyche v. State, Florida chief justice (and, thanks to President Clinton, current Eleventh Circuit judge) Rosemary Barkett strikes down as facially unconstitutional an ordinance that prohibits loitering for the purpose of prostitution.  Barkett strains to misread the ordinance as not requiring, as an element of the crime, a specific intent to engage in prostitution.  Further, she asserts that even if specific intent were required, the ordinance would still be unconstitutional because of the hypothetical possibility that it could be applied in a manner that would chill First Amendment speech. Never mind that it’s difficult to see how the ordinance would reach any constitutionally protected activity, much less the substantial quantum needed for First Amendment overbreadth doctrine to apply to a facial challenge.

In two other cases that same day (E.L. v. State and Holliday v. City of Tampa), Barkett similarly strikes down as facially unconstitutional ordinances prohibiting loitering for the purpose of engaging in drug-related activity.  So much for the ability of crime-ridden communities to combat the scourges of prostitution and drugs.

Good News for Yale Law School, Very Bad News for America


That’s my assessment of yesterday’s news that Yale law school dean Harold Koh has been nominated to head the legal adviser’s office in the State Department.  As I’ve outlined before, Koh is a leading proponent of transnationalism, which would subordinate American national interests to perceived global interests.  In his new post, Koh would be well positioned to turn his academic theories into reality—threatening severe damage to American sovereignty and subjecting American citizens to rule by a transnational elite of left-wing lawyers appointed to various international bodies.

Update:  John Fonte has this excellent post on The Corner.  And, further update, this one by Andy McCarthy.

The Ninth Circuit Outdoes Itself


Once again, the Supreme Court has unanimously reversed the Ninth Circuit.  Once again, it has done so in a case in which the Ninth Circuit granted habeas relief.  But what may be unique (and must surely be rare) about today’s ruling in Knowles v. Mirzayance is that the Supreme Court had already previously vacated the Ninth Circuit’s earlier grant of habeas relief and that the Ninth Circuit panel nonetheless issued an unpublished opinion reaching the same result.  It’s also worth noting that the Supreme Court unanimously ruled that habeas relief was improper even under a de novo standard of review (that is, even apart from the very deferential review of state-court decisions that a federal statute—AEDPA—ordinarily commands).

The judicial culprits this time are Carter appointee Procter Hug and Clinton appointee Kim McLane Wardlaw.  (Wardlaw is sometimes mentioned as a Supreme Court candidate, primarily because she is half Mexican-American.)  The third member of the panel—a district judge sitting by designation—dissented.

Senator Leahy’s April Fool’s Stunt


In order to rush through President Obama’s nomination of David F. Hamilton to the Seventh Circuit, Senate Judiciary Committee chairman Pat Leahy is trying to set Hamilton’s confirmation hearing for next Wednesday, April 1. 

Obama nominated Hamilton one week ago today.  Hamilton did not submit his Senate questionnaire response until after 8:30 p.m. on March 18, and he’s supplemented the questionnaire materials on several occasions, including yesterday, and yet another supplement is expected today.  So the hearing that Leahy is trying to schedule would be barely two weeks from Hamilton’s nomination and barely a week (if there are no more supplements after today) from Hamilton’s complete submission of his hearings materials.

Hamilton has been a federal district judge for nearly 15 years and has authored more than 1200 opinions.  He has also 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.  No federal appellate nominee other than Clinton renominee Helene White (the beneficiary of a special deal) received a hearing in less than 30 days.  And of President Bush’s first batch of nominees, the first to receive a hearing waited 62 days.

The seat to which Hamilton has been nominated has not been designated a judicial emergency, and the vacancy has existed only since September 30, 2008.

What’s the rush?  Might Leahy be trying to impair Republicans’ ability to demonstrate that Hamilton is not the “moderate” the Obama administration claims him to be?

(I have relied on a Senate source for most of the above information.)

Re: Andrew Cohen’s Evidence-Free Anti-Scalia Jeremiad


A follow-up to my previous post (and to Matt’s and Peter Robinson’s):  I’ve just listened to all five segments of Peter Robinson’s interview with Justice Scalia, and I found literally nothing in the entire series that remotely supports Andrew Cohen’s string of claims that Scalia was invoking religious rhetoric and displaying religious fervor.  Cohen apparently is building his entire case on Scalia’s reference to the “temptation” that judges have to (as Robinson quoted Scalia) “play king”—a temptation that Scalia said the Court first yielded to in Dred Scott and “has been around a long time.”  There is nothing in Scalia’s discussion of temptation that is religious in nature.  And there is nothing in his mild manner that warrants Cohen’s claim that he “responded [to one question] with all the drama of a television preacher,” that he responded to another with “more sermon than statement,” and that the series revealed “how deeply Justice Scalia’s legal philosophies and tactics are dictated by his religious fervor.”  Cohen is just making it up. 

Indeed, Scalia specifically states, “There’s no such thing as a Catholic interpretation of a text.”

Barney Frank’s Name-Calling


Barney Frank’s attack on Justice Scalia as a “homophobe” is inane at several levels:

First, the term “homophobe” is an ugly epithet designed to stigmatize (“he’s the sicko”) those who don’t embrace the homosexual agenda.  It’s intended to cut off serious discussion, not to promote it.  It doesn’t belong in public discourse.

Second, Frank uses his epithet in the course of expressing his concern that a Supreme Court that includes Scalia might not strike down the federal Defense of Marriage Act.  The Defense of Marriage Act was approved by overwhelming majorities in each House of Congress (85-14 in the Senate, 342-67 in the House) in 1996 and signed into law by President Clinton.  Senators in favor of DOMA included Biden, Bradley, Daschle, Kohl, Leahy, Levin, Lieberman, Mikulski, Murray, Reid, Sarbanes, and Wellstone.  Millions and millions of voters in state after state have acted to preserve traditional marriage.  Does Frank regard all these Americans as “homophobes”?

Third, Scalia’s position is clear:  The Constitution does not address the matter of same-sex marriage.  Therefore, the political processes are free to decide whether or not to adopt it.  He, as a justice, will defer to the political processes, whatever the result.  In other words, on this matter as on so many more, Scalia will not indulge his own policy preferences (whatever they are) and will not write those preferences into the Constitution.  Frank wants liberal activist justices who will indulge his and the Left’s own policy preferences on homosexual matters (and so much more).  That’s his real beef with Scalia, and he’s masquerading it under the “homophobe” label.

I’ll leave to others whether Frank’s name-calling is a tactic designed to distract attention from his role in causing the ongoing financial crisis.

[Cross-posted on The Corner]

Re: Elevating the Discourse


That story about Rep. Barney Frank calling Justice Antonin Scalia a “homophobe” ran on Fox News “Special Report” last night too, in the “Grapevine” segment.

I suppose Rep. Frank means something like this: Sexual preference is no more a legitimate moral category for distinguishing people from one another than race is (we’ll set aside for the moment the fact that Frank supports racial preferences for minorities).  Gay is the new black.  Therefore “homophobe” today is the exact equivalent of a Jim Crow racist, circa 1950s.  And, since Rep. Frank thinks that legal categories must track moral ones, with the Supreme Court assigned the job of keeping our constitutional order up to date with our evolving moral understandings, then it follows that any judge who does not actively advance that moral evolution is a “homophobe.”  QED.

Plenty of Americans contest the first of these arguments.  I count myself among them, so I guess I know what Frank thinks of me, if he thinks of me.  But the interesting thing here is, Frank has absolutely no idea whether Scalia should be counted among them.  There is no way to know the justice’s private opinion of homosexuality from the public judicial opinions he has written on matters of “gay rights,” sodomy laws, etc.  All we can know for sure is that he does not believe sexual preference designates a protected category of persons under the law of the Constitution, as far as we can know that law from its original public meaning.  And he assuredly does not believe that the job of the judge is to “tune up” our Constitution so that it hums along in harmony with contemporary “values” about such matters.

Not for the first time, or the last, Rep. Frank literally doesn’t know what he’s talking about.

Elevating the Discourse:


Rep. Barney Frank called Justice Scalia a “homophobe” in a recent interview. (LvHB)

UPDATE: Scalia responds.

This Day in Liberal Judicial Activism—March 24


1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state.”  The court orders the General Assembly to “create an entirely new school financing system.”  (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

Re: Andrew Cohen’s Jeremiad


Ed, I don’t know that “jeremiad” is what I’d have called Cohen’s piece.  “Rant” is more like it.  I did watch Peter Robinson’s interview with Justice Scalia, and I kept wondering as I read Cohen what he thinks he saw.  Just once did religion explicitly come up, when Peter asked directly about its influence on Scalia’s jurisprudence.  And Cohen quotes the justice’s answer without grasping its truth: “As far as I know, there is only one element of my faith that has anything to do with my being a judge. . . . ‘Thou shalt not lie.’”  (And how Cohen can turn this into an implied dig by Scalia against his fellow justices is beyond me.)

So where is the “religious fervor” that Cohen claims “dictate[s]” Scalia’s judicial behavior?  There is no evidence of any such fervor–none at all–in the entire 40 minutes or so of conversation between the justice and his interviewer (whose questions are serious ones, and not “giggly” at all, as Cohen claims).

Justice Scalia says over and over in the interview with Peter that he tries his best to do plain old-fashioned lawyer’s work as a judge, examining the text and its history and trying to discern its meaning.  Yet somehow Cohen sees in him someone who is “self-righteous,” who is obsessed with “sin” (a word that, to the best of my recollection, Scalia never uses), who lives in a “cloistered world” and has a “Manichean” viewpoint.

Were I a Freudian in my explanations of others’ little obsessions, I would say that Cohen engages in a kind of projection here.  For it is the judges Cohen likes better–the ones who would ditch the original meaning of the Constitution because its framers were “rich, white, often-slave-owning men”–who must find something to substitute for that original meaning.  And where else will they look than their own self-righteous belief in their own powers of prophecy about what is good and what is evil for American society?  It is they, and Cohen, who need a “religious fervor” about Progress of Manichean proportions, with results to be engineered by judges who don’t have to answer to the American people.  No person with a sanely realistic view of human failings could share Cohen’s confidence that we can sever our obligations to law and to history and produce any good from the ministrations of judicial power.

Oh yes, one more thing: as Ed notes, it is truly ugly how Cohen insinuates that Scalia “wants Jim Crow to come back to America.”  Shades of Ted Kennedy’s infamous mugging of Robert Bork in 1987.

UPDATE: Now I see that Peter Robinson says his own piece over at The Corner.  And well said it is.

Andrew Cohen’s Evidence-Free Anti-Scalia Jeremiad


In an article titled “Original Sin:  Scalia Unplugged” and subtitled “Supreme Court Justice Uses the Language of Sin to Describe His Ideological Opponents,” CBS News’s legal analyst Andrew Cohen tells readers that in Justice Scalia’s recent interview series with NRO’s Peter Robinson, the “deeply devout ideologue … consistently evoked the religious notion of sinful temptation to describe how so many of the rest of us have come to believe otherwise”; responded to one question “with all the drama of a television preacher”; at one point “went on, more sermon than statement”; revealed how his “legal philosophies and tactics are dictated by his religious fervor”; and “is still a true believer in ‘original intent’ because it’s in his religious, faithful, prayerful nature to believe in things he cannot know.” 

What is really amazing about all this is that while Cohen features many Scalia quotes from the interviews, not a single one supports any of those propositions.  At one point, Cohen quotes the single word “temptation”, but given that then-agnostic Robert H. Bork titled his critique of living-constitutionalism The Tempting of America, and given the fact that “temptation” has widespread secular meaning, that single word can hardly justify Cohen’s jeremiad.  Now, of course, it’s possible that Scalia used lots of religious metaphors or language that Cohen just didn’t bother quoting (since in many liberal eyes no attack on Scalia need be accompanied by actual evidence).  I haven’t watched the interview series myself, so I’ll ask Matt, who has, to weigh in.

Cohen also repeatedly charges or insinuates that Scalia believes that Brown v. Board of Education was wrongly decided: 

In Scalia’s cloistered world, the judges, lawyers, and politicians who have enabled the Constitution’s scripture to be interpreted broadly enough to be used to try to erase segregation or discrimination or prisoner abuse, or to try to protect and expand privacy rights, are really just weak sinners who couldn’t resist the urge to meddle. Adam bit the apple. The Supreme Court desegregated schools. Both failed miserably in Justice Scalia’s eyes.…

Scalia is right. It is harder now than ever before to argue against support for the Supreme Court’s Brown v. Board of Education that ended legal segregation in 1954.… But what Scalia considers the legal sin of temptation towards a “living Constitution”-what he mocks as “alluring” but not legally legitimate– most of the rest of us proudly consider societal advancement.…

Who among us wants Jim Crow to come back to America? … Would these developments have occurred anyway without court intervention or stimulus? Perhaps. Would they have occurred when they did without judges? Absolutely not. Are we better off for it? Scalia clearly doesn’t think so.

Never mind that Margaret Talbot’s 2005 profile of Scalia in the New Yorker states that “Scalia says that he would have voted with the majority in Brown” (even as Talbot argues, wrongly (as I discuss here), that “it’s hard to see an originalist justification” for Brown).  

And never mind, more broadly, that any originalist would readily concede that non-originalist rulings can bring about welcome results.  The question for an originalist is instead whether such rulings are legitimate in the system of representative government that the Constitution creates and gives broad play to.  That’s a question Cohen has evident contempt for, since originalism “exalts politicians [read:  who answer to yahoo citizens] at the expense of judges,” and an unbounded judicial role is necessary to ensure the results he wants. 

Cohen’s demonizing of Scalia is replete with other errors, from his confusing “original intent” with “original meaning,” to his belief that there has been some significant “rollback of Warren Court-era rights,” to his assertion that originalists have “faith in the omniscience of the Constitution’s founders.”  No, what originalists recognize is that the Framers had the modesty not to try to answer all questions for all time but instead sought to set up a system of government in which citizens could determine and revise policy.  We don’t look to some non-existent “omniscience of the Constitution’s founders” to try to determine which policy decision among the available choices ought to be made.  We look to the original public meaning of the Constitution’s text (including its amendments) to determine which choices are out of bounds.

Get ‘Em While They’re Young


The New York Times Magazine interviews retired justice Sandra Day O’Connor, who wants to talk about, her pet project for indoctrinating the youth of America in the putative virtues of judicial supremacy:

Q: What would you like us to know about the judicial branch of our government?

A: Apparently a great many people have forgotten that the framers of our Constitution went to such great effort to create an independent judicial branch that would not be subject to retaliation by either the executive branch or the legislative branch because of some decision made by those judges.

As I said two years ago in my tour of what certain important framers (Hamilton, Madison, and Jay) actually thought, Justice O’Connor has a decidely partial understanding of our founding history.  Not surprisingly, she has a view of our constitutional principles that conduces to the power of the institution in which she spent most of her career.  The nation’s children deserve a better teacher.

This Day in Liberal Judicial Activism—March 22


1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (a contrived case involving a law that had never been enforced) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Greenhouse to ACS


The American Constitution Society has added three members to its Board of Directors, including former New York Times Supreme Court reporter Linda Greenhouse. (LvOK)

Dopey on DOMA


I usually find the Washington Post’s house editorials on legal issues (unlike those of the New York Times) to be well within the range of sensible commentary, whether or not I agree with them.  Not so with today’s outlandish editorial arguing that the application of the federal Defense of Marriage Act—specifically, of its provision that prohibits the federal government from treating as a marriage a same-sex relationship that a state recognizes as a marriage—to plaintiffs in a federal lawsuit in Massachusetts violates the Equal Protection Clause of the Constitution.

The editorial asks whether DOMA’s various purposes are rationally served by the denial of federal benefits to the plaintiffs.  The easy answer to that question is twofold.  First, the relevant legal question, under Equal Protection case law, is whether DOMA generally is rationally related to a legitimate government purpose, not whether a particular application can be shown to be.  Second, it is entirely reasonable to believe that DOMA’s purpose of defending traditional marriage would in fact be undermined by any instance of the federal government’s treating a same-sex relationship as marriage.

The editorial disingenuously maintains that it is seeking a narrow result, applicable only to the plaintiffs in the lawsuit.  But there is nothing in its sloppy reasoning that would be so confined.  Its illogic would wipe out DOMA.

Even more recklessly, the editorial suggests that President Obama “should consider whether this is one of those rare instances where the Justice Department declines to defend a [federal] law.”  I have no concerns that incoming Solicitor General Kagan would adopt such a foolhardy course (though I certainly have concerns, given her extremist rhetoric about the “Don’t Ask, Don’t Tell” law, that she would not mount a vigorous and effective defense of DOMA).

A Special Kind of Chutzpah


That’s what it takes for Jeff Amestoy to wax philosophical, in today’s Washington Post, about the “intersection where constitutional law meets direct democracy” in the state-level struggles over same-sex marriage.  Why chutzpah?  Because Amestoy–though bylined as “a former chief justice of the Vermont Supreme Court”–never identifies himself as the author of that court’s 1999 ruling in Baker v. State of Vermont, a brutally activist decision that held a gun to the state legislature’s head and said “choose between same-sex marriage and civil unions, for if you don’t create one or the other, we judges will do it for you.”  And Amestoy and his colleagues got away with this brazen rewrite of the state’s constitution because, as they knew full well, Vermont (like many other older states in the east) has a constitution exceedingly difficult to change by legitimate amendment.  Amestoy and his fellow usurpers are the reason Vermont has civil unions today, and is now on the brink of adopting full-fledged “marriage” for partners of the same sex.  He had no respect for the constitutional prerogatives of the people then, and it’s hard to believe he’s grown any such scruples in the meantime.

Scalia and Thomas on Originalism


Unlike Ed Whelan, I finally caught up with the five parts of Peter Robinson’s interview of Justice Antonin Scalia on Uncommon Knowledge.  Justice Scalia is in fine form, and Peter’s questions are excellent.  I was particularly interested in the justice’s views on stare decisis (part 3, or 4? I can’t remember).  It was good to hear him say, for instance, that the “incorporation” of the first ten amendments into the Fourteenth, so as to apply against the states, is based on what he views as false history.  I was sorry to hear him say it’s “too late in the day” to do anything about it.  But maybe he will hold fast against repeating and extending the error, and will argue and vote against “incorporating” the Second Amendment against the states after last year’s Heller decision, as the justices will surely be invited soon to do.  (Yes, I hear someone saying that I would say that because I think Heller was wrongly decided.  But I’d say it even if I thought it rightly decided.)

Readers may also want to watch a speech given last Monday evening at Washington & Lee University by Justice Clarence Thomas.  Sounding similar notes on originalism (it’s either that or “making it up,” he says), Thomas humbly claims he has only “a bit part . . . in the preservation of liberty,” and exhorts us all to think about whether we have earned the sacrifices others have made for our freedom.  (Link via NLT from my friend Lucas Morel of W & L, also here at Princeton with me this year.)

Peter Robinson’s Interview of Justice Scalia


Each day this week on NRO, Peter Robinson’s Uncommon Knowledge has featured a new part of his video interview of Justice Scalia. I admit that I haven’t found the time yet to watch the interview, but it’s a safe bet that it’s very interesting.  Here are the teasers for each part:

Chapter 1:  Justice Antonin Scalia discusses the premise of his book, Making Your Case: The Art of Persuading Judges.

Chapter 2:  Justice Antonin Scalia explains why he believes the Constitution “is not living, but dead.”

Chapter 3:  Justice Antonin Scalia discusses why the originalists have lost so much ground to the devotees of a living Constitution.

Chapter 4:  Justice Antonin Scalia talks about Roe v. Wade — and other mistakes of the past 50 years.

Chapter 5:  Justice Antonin Scalia fields questions about his career, his family, his opinions, his faith, his colleagues, his legacy, and the fate of the Constitution.

Obama’s Empathy


A reader writes to state that he “was really bothered by the President’s crack about the Special Olympics last night” (on Jay Leno’s show) and to call into question what President Obama’s so-called empathy standard for judicial nominees really means:

I have a mentally impaired sibling who has participated in those games and would be devastated to find that the President of the United States thinks her efforts funny.  It struck me that his comments were especially out of line given his own gold standard for nominees, which called for nominees with the “heart, the empathy, to recognize what it’s like to be a young teenage mom.  The empathy to understand what it’s like to be . . . disabled. . . .  And that’s the criteria by which I’m going to be selecting judges.” Through his chuckling mocking of handicapped athletes last night, the President showed he would fail his own standard.  I wonder if he really cares about empathy for the disabled at all — or if his empathy standard is merely a proxy for activist tendencies.

A good question.  It is quite clear that any empathy that Obama might have for disabled persons does not translate into enabling citizens to afford them any meaningful legal protection of their basic right to life when they are in utero.

Lithwick’s Tizzy


Poor Dahlia Lithwick is having a tizzy over Senate Republicans, who, she says, are “revers[ing], rewrit[ing], or undermin[ing] every rule and standard [they’ve] ever laid out for measuring the fitness of a presidential nominee.” In short, Lithwick alleges that Senate Republicans are engaged in the same sort of “staggering” “hypocrisy” that Lithwick herself is committing (as Jonathan Adler discussed in this recent post). Given Lithwick’s frequent shtick of substituting hyperbole for argument, it’s difficult to be sure when she actually means what she says, so instead of addressing her blanket assertion, let’s take a look at the subordinate arguments that Lithwick offers.

1.  Lithwick contends that “Senate Republicans who, four short years ago, condemned the use of the filibuster as ‘unconstitutional’ and threatened to answer it with the ‘nuclear option’ are now earnestly pledging to filibuster President Obama’s judicial nominees.”  Lithwick’s contention is defective in at least two respects. 

First, Senate Republicans have threatened the use of the filibuster to preserve the blue-slip privilege, not to block Obama’s judicial nominees. In other words, if Judiciary Committee chairman Leahy affords Senate Republicans the same blue-slip privilege that Democrats successfully extracted from former chairman Specter, then the filibuster threat in the letter vanishes.

Second, if Senate Republicans had succeeded in persuading Democrats not to resort to the filibuster to block President Bush’s judicial nominees, then it would be hypocritical if Republicans were to resort to the filibuster in order to block President Obama’s judicial nominees. But Republicans failed to so persuade Democrats. Is it really fair, now that Democrats have deviated from or permanently changed the Senate practice, to label Republicans hypocrites if they now employ a practice they tried to prevent? Must they engage in unilateral disarmament? By analogy, consider whether, say, a senator who believes that Congress’s Commerce Clause power is narrower than the Supreme Court has construed it to be is hypocritical if he offers legislation that depends on the operative legal framework? (I set aside here the separate question—see my “First” point here—of the extent to which various Senate Republicans actually adopted the unsound position that the filibuster is unconstitutional.) I’ll add that I believe that there remain weighty arguments against resorting to the filibuster for the purpose of blocking judicial nominees (mostly premised on the understanding/hope that the longstanding practice that Democrats deviated from can be restored).

2.  Lithwick complains that Senate Republicans “rough[ed] up” Solicitor General nominee Elena Kagan when 31 of them voted yesterday against her confirmation.  Lithwick writes:

So what is it that Kagan is being hassled about by Republicans on the judiciary committee? Her failure to provide sufficient information about her ideological views.

I’ve addressed Kagan’s insufficient responses here, here, here, and here. (I didn’t have time before yesterday’s vote to write about Kagan’s submission Wednesday afternoon.) To sum it up, Kagan drew implausible lines of supposed principle that she inconsistently adhered to and then abandoned. Beyond simply asserting that Kagan “answered” the questions, Lithwick claims that Senator Specter has taken a different approach to Kagan than he took to Supreme Court nominee Samuel Alito. But whatever the merits of the competing positions over the proper scope of inquiry of judicial nominees, the concerns over judicial independence and judicial impartiality have no role in the context of executive-branch nominees. (And it’s particularly galling that Kagan, who argued for the Senate to engage in more rigorous exploration of the legal views of Supreme Court nominees, tried to transform her confirmation hearing for a senior position in DOJ into the same “vacuity and farce” that she had decried.)

Lithwick’s initial account of the supposedly singular procedural reason for Republican opposition to Kagan is also mistaken, as the reader learns only five paragraphs later when, in the midst of discussing OLC nominee Dawn Johnsen, Lithwick finally gives a hint of the substantive grounds on which many Republicans opposed Kagan:

Kagan’s great sin is that she once signed onto a brief opposing the presence of military recruiters on law school campuses, since their anti-gay policies violated school anti-discrimination rules.

In fact, beyond signing a brief (which garnered zero votes in the Supreme Court), Kagan, as part of her vigorous opposition to the Solomon Amendment, excluded military recruiters from the Harvard Law School (when she thought she could do so without jeopardizing the flow of federal funds to Harvard) and labeled the federal “Don’t Ask, Don’t Tell” law “a profound wrong” and “a moral injustice of the first order.” Her extremist actions and rhetoric raise plenty of ground for legitimate concern over whether and how she would defend the Solomon Amendment and the Defense of Marriage Act—and over her regard for the military’s judgment.

3.  Lithwick claims that the sole cause of Senate Republican concern (and of National Review “frothing”) over OLC nominee Dawn Johnsen is a footnote in a 20-year-old brief.  But that footnote is just one part of the broader record that Andy McCarthy highlighted in the essay that Lithwick links to but misrepresents, and it was Johnsen’s Clintonesque denial of her position that led to unusual focus on that footnote.

Lithwick states:

Ted Olson gave legal advice to the Arkansas project, but he was confirmed as solicitor general. Dawn Johnson [sic] dropped a footnote in a brief, and she’s a raging ideologue.

The second sentence grossly distorts and understates the grounds of criticism of Johnsen, and the first sentence obscures from the reader that Olson faced a much more contentious confirmation battle than Johnsen and was ultimately confirmed by a 51-47 vote. Especially given the fact that Olson’s appellate experience when he was nominated infinitely (literally) dwarfed that of Kagan (who has never argued a single appeal, in the Supreme Court or elsewhere), it’s strange that Lithwick is complaining that 31 senators “rough[ed] up” Kagan by voting against her.

I also find it amusing that Lithwick, who fancies herself quite a humorist, still doesn’t recognize that a quip that John Roberts made in 1985 was a joke about lawyers rather than a disparaging comment about women.  Even the New York Times got the joke.

4.  Lithwick finds it puzzling that “20 years ago, Dawn Johnsen voiced support for abortion—which was legal—and that makes her an activist, whereas 20 years ago Samuel Alito voiced opposition to abortion—which was, still, legal—and that makes him a great constitutional minimalist.” Let me explain the puzzle (though I don’t care for the “minimalist” term). Roe was an indefensible and illegitimate exercise of judicial activism—an unconstitutional incursion by the Supreme Court on the realm of representative government. To defend and to seek to perpetuate that power grab is activist. To oppose it and to seek to undo it is to support a Court that practices proper judicial restraint.

[Amplification:  Some readers have evidently (and understandably) misunderstood my point 4, so let me clarify it.  Lithwick finds it puzzling that the term “activist” could be applied to someone who embraced then-existing case law on abortion.  My point is that the terms “judicial activism” and “judicial restraint” draw their meaning primarily from separation-of-powers principles (rather than from the intrajudicial doctrine of stare decisis).  Therefore, it shouldn’t be puzzling that those who regard Roe as indefensible and illegitimate view supporters of Roe as supporters of judicial activism.  (I did not mean by my point 4 to present an argument for Roe’s illegitimacy, though I’d refer interested readers to my 2005 Senate testimony on the matter.)]

Leadership by Senator Specter: No on Kagan


Senator Arlen Specter, Ranking Republican member of the Senate Judiciary Committee, has just announced that he will vote NAY on the nomination of Elena Kagan to be solicitor general of the United States. 


The vote has not yet occured (it will sometime in next six hours as I understand), but given Senator Specter’s intellect, legal analytical ability, and his reputation for bipartisanship and fairness, this is very significant and it represents strong leadership that other senators would do well to examine and follow. 

Obama Sticking with Lawless Empathy Standard


In defending the first Obama federal appellate court pick at Tuesday’s White House press briefing, spokesman Robert Gibbs cleared up any doubt as to whether the president was sticking with the lawless standard for evaluating judicial nominees that he articulated on the campaign trail (and that he invoked as a senator to filibuster Justice Alito and vote against Chief Justice Roberts). The president believes “that there are cases, particularly at this level” — presumably the appellate level, meaning the Circuit Courts of Appeal and the Supreme Court — “that your own empathy and value system leads you to make a conclusion one way or the other.” This tacit admission that the ACLU values of 7th Circuit nominee David Hamilton were a reason for his selection should be a problem for the vast majority of Americans, who disagree by a margin of 3 to 1 with the Obama standard that judges should decide the most controversial and important constitutional and statutory cases based on their own personal “value system” and “empathy” for certain types of litigants (i.e., the ones favored by the ACLU).  

Judges should follow the law in deciding cases — not their own values, good or bad. And if they don’t decide cases on the law, as Senate Republican Leader Mitch McConnell has pointed out, they will have a hard time keeping their judicial oath of office.

This Day in Liberal Judicial Activism—March 19


1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Week item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.

In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

Re: Seventh Circuit Candidate David Hamilton—An ACLU “Moderate”!


The Almanac of the Federal Judiciary (2009 edition) includes lots of effusive comments from lawyers about Judge Hamilton’s abilities.  But comments from criminal-defense lawyers reinforce my initial perception that Hamilton is not the moderate that the Obama administration is trying to paint him as:

“He is the most lenient of any of the judges in the district.” “He is one of the more liberal judges in the district. He leans toward the defense.”

And the comments on Hamilton’s sentencing (evidently from both prosecutors and criminal-defense attorneys) are similar:

“He is your best chance for downward departures.” “He is inclined to give certain defendants a break.” … “In sentencing, he tends to be very empathetic to the downtrodden, or to those who commit crimes due to poverty.”

D.C. Book Event on Baseball and the Baby Boomer


If I may be permitted one off-topic post on baseball each spring training, I’ll call the attention of D.C.-area readers to a lunch event this Friday, March 20, featuring Talmage Boston and his new book Baseball and the Baby Boomer: A History, Commentary and Memoir. The event is at the University Club.  (For more information, contact Norbert Kupinski at    

There is a genuine, if tenuous, Bench Mench memos link, as Talmage, in addition to being a baseball historian, is a lawyer and a leader of the State Bar of Texas, and in that last capacity kindly invited me to take part in a debate on judicial activism at the State Bar’s annual meeting in 2006. Plus, Talmage tells me that a former U.S. Attorney General will be at the event. (Hint: It’s not Janet Reno.)

ABA Subservience to Obama Administration


It’s no surprise that the Obama administration has restored the ABA judicial-evaluation committee’s pre-Bush 43 privileged role in reviewing prospective nominees before the president formally nominates them. But the timing of yesterday’s announcement by the ABA is curious and would seem to provide more evidence that the ABA is eager to play handmaiden to the Obama administration’s political agenda.

Consider that the ABA’s announcement came on the very day that President Obama made his first judicial nomination, David Hamilton (to the Seventh Circuit) — and on the very day that the ABA committee issued its rating (“well qualified”) of Hamilton.  The fact that the ABA committee issued its rating yesterday indicates that the White House restored the ABA’s pre-nomination role some weeks ago.  (This ABA document — especially pages 5 to 9 — describes the lengthy evaluation procedures that the ABA committee undertakes.  Although that document has not been revised to reflect the ABA’s restored pre-nomination role, the exercise of that role would begin with the White House’s informing the committee who the intended nominee is.) 

In other words, at the very time the media were speculating whether the Obama White House would restore the ABA’s old role, the ABA had almost certainly already had its role restored. Why did the ABA not say so at the time? And why did its announcement yesterday obscure when its role was restored? I’d guess that the White House asked the ABA to keep mum — in order to avoid giving conservative opposition a heads-up that nominations might be imminent — and that the ABA happily complied with this purely political request.

By the way, yesterday’s statement by the ABA’s president repeats the canard that the ABA committee “does not consider a potential nominee’s ideological or political philosophy.” I’ve exposed the falsehood of that assertion in this post. The National Law Journal also reports today that “a soon-to-be-released study by political scientists concludes” that the ABA’s ratings “are biased against potential conservative nominees.”  Given how the members of the ABA committee are selected (a matter that I discuss at length in this essay), that’s hardly a surprise.

Bad Ruling in California


A state appeals court in California has ruled that Berkeley school district’s policy of assigning students based in part on the racial makeup of their neighborhoods is not racial discrimination. As I once heard Sharon Browne of Pacific Legal Foundation (which brought the lawsuit) pithily put it, it seems hard to believe that, if it’s illegal to discriminate against someone because of his race, it can still be legal to discriminate against that person because of his neighbor’s race. That’s what’s going on here.

As a matter of federal (constitutional) law, the government is clearly using a racial “classification,” and that is enough to trigger strict scrutiny.  It is also clear that what the school district is doing is racially motivated — it’s simply found a clever proxy for the race of the students themselves — which also triggers strict scrutiny. And, as a matter of state law, it is hard to believe that Proposition 209 ought to be interpreted as narrower than the Constitution, when the former was passed to supplement the latter. Prop 209 reads: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Students and groups of students are being treated differently “on the basis of race” here.

Advice for Obama


In light of Obama’s appointment of the liberal Judge David Hamilton to the Seventh Circuit, Quin Hillyer’s article in today’s DC Examiner is particularly timely, and worth a read. The article features advice offered to Obama by Clinton administration acting solicitor general Walter Dellinger, National Journal columnist Stuart Taylor, and Bench Memos’ own Jonathan Adler at an event hosted by The Heritage Foundation. Despite their different political and jurisprudential philosophies, Quin notes that all three panelists agreed that Obama should follow President Bush’s lead by renominating several of his predecessors blocked judicial nominees, and they likewise agreed that D.C. Circuit nominee Peter Keisler would be a good choice. There are more details, including Dellinger’s take on how the judicial issue cuts politically, so you should read the whole thing. Of course, the question is whether Obama will entertain any of this advice, or whether we will see in President Obama an executive version of the liberal and doctrinaire Senator Obama, who voted for judicial filibusters and against Chief Justice Roberts and Justice Alito. 

Hamilton Does Not Equal Bipartisanship


When he ran for President, Obama said he’d set new and higher standards for bipartisanship in many things, including judicial nominations. 


Higher than President George W. Bush, that is, one of whose first acts of federal judicial appointment was to renominate President Clinton’s holdover nominee, Roger Gregory, to the 4th Circuit. President Bush went further in bipartisanship, elevating Clinton appointee Barrington Parker from the district court to the 2nd Circuit. And later in his administration, President Bush renominated Helene White, another former Clinton nominee who had been stalled, to the 6th Circuit. That’s at least three Clinton judges who were confirmed to the federal Circuit Courts of Appeal under President Bush.


Today, the White House is hailing its first federal appellate nominee, Judge David Hamilton, an ACLU liberal and long Democratic political player, as some kind of bipartisan step.


It’s not clear why they think appointing a long-active Democrat who was a leader in the ACLU (and was certainly not a Bush nominee) is “bipartisanship.”


When President Obama renominates a few Bush holdover appointees, such as Peter Keisler to the D.C. Circuit and Rod Rosenstein and Robert Conrad to the 4th Circuit, we can begin to assess whether President Obama has even met – to say nothing of exceeded — President Bush’s level of bipartisanship in judicial nominations.


We’re still waiting . . . and Hamilton does NOT count.

Re: SG Nominee Kagan Stiffs Specter


Solicitor General nominee Elena Kagan has already stiffed Senator Specter twice in his efforts to get her to respond adequately to his, and his colleagues’, written questions, and Specter and two other committee Republicans voted “pass” on Kagan’s nomination in committee as a result.  (Three other committee Republicans voted no.)  After another meeting with Kagan, Specter has written her another letter asking her to answer specific questions that she didn’t answer sufficiently.  His letter indicates that Kagan agreed to provide fuller answers to at least several of his questions.  We’ll see.

Anti-Bush Revisionism on Judicial Nominees


The New York Times article on President Obama’s first judicial nominee (which I discussed here) repeats the now-common charge that the White House ceremony in May 2001 in which President Bush announced his first 11 nominees for federal appellate seats “provided a political air to the nominations.”  That charge is often used to suggest that the White House ceremony triggered the Democrats’ subsequent unprecedented measures of obstruction of judicial nominees.

The contemporaneous reaction of leading Democrats to that White House ceremony, which included Clinton recess appointee Roger Gregory and Clinton district-court appointee Barrington Parker Jr. among the nominees, was markedly different.  The Associated Press’s next-day account of the event (titled “Senate Democrats seem ready to allow most of Bush’s first judges”) noted that “Democrats appeared content with the choices.”  In particular:

“We are pleased that the White House has chosen to work with us on the first group of nominations,” said Senate Minority Leader Thomas Daschle, D-S.D. He noted that some Democrats already had turned in positive reviews of some of the nominees.

Sen. Patrick Leahy of Vermont, the Judiciary Committee’s top Democrat, even attended the White House announcement. “Had I not been encouraged, I would not have been here today,” he said.

In other words, far from having “a political air,” the White House ceremony was so nonpartisan that Senator Leahy was happy to attend, and minority leader Daschle praised the White House for working with Senate Democrats on the nominees.

Seventh Circuit Candidate David Hamilton—An ACLU “Moderate”!


In an article headlined “Moderate Is Said to Be Pick for Court,” the New York Times reports that President Obama’s first nominee to a federal appellate court seat is expected to be David F. Hamilton.  Hamilton, appointed by President Clinton to a district judgeship in Indiana in 1994 (despite the ABA’s “not qualified” rating), is expected to be named to the Seventh Circuit.

It’s far from clear what justifies the article’s characterization of Hamilton as a “moderate” (or, as the article oddly puts it, as “represent[ing] some of his state’s traditionally moderate strain”—how does one represent some of a strain?).  Was it perhaps Hamilton’s service as vice president for litigation, and as a board member, of the Indiana branch of the ACLU?  Or maybe Hamilton’s extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion?  That obstruction elicited this strong statement (emphasis added) from the Seventh Circuit panel majority that overturned Hamilton:

For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate.

Or perhaps Hamilton’s inventive invocation of substantive due process to suppress evidence of a criminal defendant’s possession of cocaine marijuana,* a ruling that, alas, was unanimously reversed by the Seventh Circuit?

With “moderates” like Hamilton, imagine what Obama’s “liberal” nominees will look like.

* 3/18 update:  Thanks to blogger “Marge” at People for the American Way for noting my minor factual error.  Why Marge imagines that this error affects my broader point escapes me. Insofar as Marge thinks that the distinction between marijuana and cocaine somehow affects the legal question, I’ll note that according to the Seventh Circuit’s opinion reversing Hamilton, the particular defendant in fact was charged with possession of marijuana and with “managing or controlling a place and knowingly making the place available for the storage or use of a controlled substance.”  Given that the defendant’s boyfriend stored both marijuana and crack cocaine in their apartment, this second charge may certainly be cocaine-related.

Obama’s First Appellate Court Nominee: Hard Left


As reported by the New York Times this morning, the first Obama federal Circuit Court of Appeals nominee is “moderate” David Hamilton of Indiana, to be nominated this week to the 7th Circuit.

It’s interesting that this is what Obama and the New York Times call a “moderate”:  Hamilton has a history as a hard-left political activist, and his choice signals that Obama does intend to push extreme liberals onto the bench and politicize the courts as we’ve never seen before.

Hamilton was a fundraiser for ACORN (nice ACORN payback, Mr. President) and served as vice president for litigation and a board member of the Indiana ACLU.  In 1994, when President Clinton nominated him to the district court, the ABA rated him as ‘not qualified,’ apparently because of his almost purely political (as opposed to legal and judicial) experience.

Interestingly, he is also the brother-in-law of perhaps the hardest left radical Obama nominee to the Department of Justice, Dawn Johnsen.

Beginning to notice a pattern here?

This Day in Liberal Judicial Activism—March 17


1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.” 

Nominees on the Way?


The CQ Legal Beat blog reports the first set of President Obama’s judicial nominations could be announced shortly.  Senator Leahy expects them before April 3.

WSJ Article on Progressive Originalism


This past weekend’s edition of the Wall Street Journal has an interesting but flawed article on the Constitutional Accountability Center’s project to promote a “[s]o-called progressive originalism” that focuses heavily on the Reconstruction Era Amendments—the 13th, 14th, and 15th Amendments—“to cement precedents under threat from the right and undergird the recognition of new rights” favored by liberals.  As a matter of constitutional interpretation, I’m all for originalism, properly applied, even when it yields (as it very often will) results that don’t comport with my policy preferences, and I’m pleased to see liberals like Doug Kendall, CAC’s head, who recognize the legitimacy of originalism and who are ready to engage on originalist terrain.  That said, I see two basic flaws in the article (besides the title, which should be “Rethinking Original Meaning” rather than “Rethinking Original Intent”).

First, the article mischaracterizes Justice Scalia’s originalism as “focus[ing] on the initial 18th-century constitutional text to find narrow individual rights and limited federal power to protect them.”  The reader might mistakenly infer from this passage that Scalia’s originalism somehow doesn’t take into account the Reconstruction Era Amendments, when the real dispute between Scalia and “progressive” originalists is over how those amendments are to be construed.  The passage also unfairly charges (or at least insinuates) that Scalia has adopted originalism in order to “find narrow individual rights and limited federal power to protect them.”  The reader wouldn’t suspect that Scalia has followed his originalist methodology to reach liberal results (e.g., on the scope of the Confrontation Clause), or that he roots his methodology in the very nature of legal text. 

Second, the article unquestioningly accepts the CAC’s account of the Reconstruction Era Amendments.  We’re told, in particular, that the framers of those amendments “saw their amendments as paving the way for new rights as society develops”—as though the amendments themselves are vessels of living-constitutionalism—but the single quotation offered in support of that remarkable proposition would seem to say nothing of the sort.

The Gray Lady’s Hypocrisy


I am tardy in adding my thoughts regarding the New York Times editorial renouncing blue slips, which Ed has ably discussed in some detail here, and here, and here. As Ed made clear, reasonable academic debate can be had regarding the blue-slip policy, under which a senator may delay or in some cases block a nominee from his or her home state. I write simply to note that the New York Times editorial page has now joined both sides of that debate, although their interest is clearly less academic, and more political. Thus, under a new Obama presidency, the Times now proclaims: “Blue slips have no constitutional basis, are undemocratic and are subject to abuse” and “should be allowed to die a quiet death.” What did the Times think of the abuse argument during the Bush administration? I’m glad you asked: “[P]ast abuse does not mean the Democrats should now abandon the blue-slip policy completely and give the Republicans carte blanche . . . .” NYT (editorial), April 27, 2001, A24. In the wake of Bush’s first nominations to the bench (which included nominating two Clinton nominees), the Times reiterated its support for the blue slip: “A key is for the Democrats to stand firm on enforcing the prerogative under the so-called blue-slip policy that allows any senator to block a nominee from his home state.” NYT (editorial), May 11, 2001, A34. As I said, a reasonable, academic debate can be had regarding the use of blue slips, but the New York Times’s comedy of contradictions shows that it is less interested in the debate over “constitutional basis,” and far more interested in political outcomes.

White House Confusion on Appointments


I’m sure that the crack legal team at the White House has many more pressing matters to attend to, but it ought to be quite an embarrassment to it that the White House’s web page on “Nominations & Appointments” reflects utter confusion on the elementary matter of what an “appointment” is.  Specifically, that page lists President Obama’s nominees and has columns for the “Department/Agency” to which each has been nominated, the position, the “Appointment Date,” and the “Senate Confirmation Date.”  In every case, the Appointment Date is before the Senate Confirmation Date, and many of the Appointment Dates also precede January 20.

What the web page means by “Appointment Date” is not in fact the date of appointment, or even the date of nomination, but apparently the date on which President-elect or President Obama announced his intention to nominate a person to a particular position.  So, while I’m being helpful to the White House, let me suggest that the “Appointment Date” column be relabeled “Date of Announcement of Intended Nomination” and that a new “Appointment Date” column be added at the far right of the table. 

Now, if only we’d get some better nominees ….

“Regulation by Litigation” Event


Tomorrow I will be in D.C. to moderate a noontime event on “Regulation by Litigation: Boon or Bane?”  The panel features the co-authors of a new book, Regulation by Litigation — Bruce Yandle, Andrew Morriss and Andrew Dorchak — as well as two expert commentators: Georgetown’s David Vladeck (formerly with the Public Citizen Litigation Group) and Sidley Austin’s Roger Martella (formerly EPA General Counsel).  The event is co-sponsored by the Federalist Society and the Center for Business Law and Regulation at Case Western Reserve University School of Law.  Details and registration information here.

A Last Note on Quotation Punctuation


Remaining open (as I strive always to be) to the force of persuasion, I have decided to abandon henceforth my experiment in unconventional punctuation of quotations.  I don’t think that I’m ready to go as far as Matt in his “embrace of arbitrary convention.”  (See, I just reverted to the convention.)  But I am persuaded by comments by Matt and by other readers (including my wife) whose judgment I respect that they found my former practice jarring and distracting.

By the way, a reader who is a designer of typography passes along this “eminently practical” explanation for the illogical American convention:

There are peculiar typographical reasons why the period and comma go inside the quotation mark in the United States. In the days when printing used raised bits of metal, “.” and “,” were the most delicate, and were in danger of damage (the face of the piece of type might break off from the body, or be bent or dented from above) if they had a ‘”’ on one side and a blank space on the other. Hence the convention arose of always using ‘.”’and ‘,”’ rather than ‘”.’ and ‘”,’, regardless of logic.