Making a Federal Case


The redoubtable Hans von Spakovsky joins the chorus of critics (I’m a member in long standing) pointing to the obvious unconstitutionality of proposed legislation to give the District of Columbia a regular seat in the House of Representatives.  In today’s Wall Street Journal, we’re told that “[i]f the bill is enacted, it faces a trip to the Supreme Court.”  But maybe not.  Hans homes in on an important point: even though the bill provides explicitly for judicial review of its constitutionality, the courts might not find anyone has standing to file a claim against it.  He writes:

Even if the bill contains a section that purports to provide lawmakers standing, there is grave doubt that the courts would respect it. Members of the Senate sued in 1997 regarding a statute that contained such a section, but the Supreme Court ruled that the senators lacked the direct and personal injury required for standing. The type of political injuries that the D.C. bill would inflict might not be sufficient to meet this standard, either.

I surmise that Hans is referring to the ill-fated line-item veto act, first challenged by Sen. Robert Byrd, who was held not to have standing despite statutory provision for it, in Raines v. Byrd.  It took a claim of real injury to supply standing for the act’s invalidation in Clinton v. City of New York the following year.

But the “District of Columbia House Voting Rights Act of 2009″ isn’t even as helpful in providing standing as the line-item veto act was.  In its current Senate incarnation as S. 160, it provides only this in Section 8: “If any action is brought to challenge the constitutionality of any provision of this Act or any amendment made by this Act, the following rules shall apply . . .”  This is followed by some language about what court shall hear the case, and expediting review by the Supreme Court.  No special effort is made to ease the rules of standing or to bless any particular type of claimant–though such an effort might do no good, as Hans points out.

The long and the short of it is that reassurances from the Act’s supporters that the courts can sort out all the constitutional arguments are just so much smoke at this point, designed to ease the consciences of members of Congress as they set about violating the nation’s charter.

This Day in Liberal Judicial Activism—February 23


1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat, where she serves with distinction (of a sort) to this day. (For more on Barkett’s egregious record, see here—and stay tuned.)

This Day in Liberal Judicial Activism—February 22


1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

Not a Careful Reading?


On Time’s website, law professor Douglas Kmiec ponders the Holy See Press Office’s statement about Pope Benedict XVI’s recent meeting with Nancy Pelosi:


His Holiness took the opportunity to speak of the requirements of the natural moral law and the Church’s consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in co-operation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.


(Emphasis added.) According to Kmiec, “If you read it carefully, the statement is actually quite radical—perhaps unintentionally so” and by the “moral duties” it places on “Catholic judges to work against abortion” “has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists, and perhaps all other Catholics who sit on the bench in the lower federal and state courts.”   


I question whether Kmiec’s reading is actually a careful one. For starters, Kmiec assumes that the term “jurists” is equivalent to “judges”. I claim no familiarity with continental legal systems, but I’m not surprised to discover that Wikipedia states:  “In most of Continental Europe any person who possesses a degree in law is called a jurist.” If that’s correct, the statement is better read as setting forth the moral duties that Catholic lawyers (and law-school graduates) have. Judges, of course, also have law degrees, but it would be unnatural to read a general statement about the duties that lawyers have as necessarily applying to judges—all the more so to those exercising judicial power in a system of separated powers, as opposed, say, to administrative judges. (Another illustration of the point that the general directive need not apply to those whose station in life renders it inapplicable: Consider a cloistered monk who has a law degree.)


Even if the statement does apply to American judges, all it says is that “jurists” should “work in co-operation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.” Kmiec turns this into an “admonition to ‘jurists’ to undertake an activist, law-changing role”. But the statement doesn’t compel that reading. If one understands the judicial interpretation of laws to be part of the creation of a system of laws, then the statement would permit American judges to play their proper role (which includes not inventing constitutional “rights” to abortion). 


And, of course, as Kmiec acknowledges (even as he refers to “the statement on abortion that Pope Benedict issued”), the Press Office statement is only that—a Press Office statement, one occasioned by Nancy Pelosi’s visit and undoubtedly carefully reviewed for that purpose. All the less reason to imagine that it represents some sort of “sharp break with the past” on the duties of Catholic judges. 


[Cross-posted on The Corner]

Obama’s Judicial Nominees


In this essay, Princeton professor (and—disclosure—Ethics and Public Policy Center board member) Robert P. George argues that the real-world constraints in the fields of national security and economics make it all the more certain that President Obama will deliver to “the left, fully and without dilution, victory on the moral and cultural issues”, especially through the courts:


What Obama’s judicial nominees will have in common is a belief that judicial power may legitimately be used, and should be used to achieve left-liberal moral and political goals. Their belief lacks any basis in the text of the Constitution, the logic of its provisions, or its structure and original understanding, but never mind. Some will propose moving quickly, others more cautiously and gradually, but all will subscribe to one version or another of the idea that the “majestic generalities” of the Constitution (free speech, due process, equal protection) need to be given content by judges reading into them ideas such as abolishing the legal definition of marriage as the conjugal union of husband and wife, extending legal abortion, requiring the public funding of abortion, and invalidating parental notification and informed consent laws and laws affording conscience and religious liberty protection to pro-life physicians, healthcare workers, and pharmacists.

The Obama judges are likely to revive the idea (championed by influential liberal legal scholar Ronald Dworkin but rejected in the mid-90s by the Supreme Court) that there is a constitutional right to assisted suicide, and expand constitutional protection of pornography, including “virtual” child pornography that is manufactured without the use of actual children. They will defend preference-based affirmative action policies in hiring and employment as constitutionally warranted efforts to achieve an allegedly compelling state interest in racial, ethnic, and sexual “diversity.” They will likely place further restrictions on religious activities and expression in public schools and other governmental institutions by adopting a broad reading of the “establishment clause” and a narrow reading of the “free exercise” clause of the First Amendment.


Alas, that sounds accurate to me.

Down the Memory Hole


Not normal Bench Memos fare, but there’s a tangential connection here to First Amendment norms about religion in American politics . . .

Maurice O’Sullivan, a literature prof at Rollins College, writes “How I Learned Not to Fear the Anti-God Squad” in today’s Wall Street Journal.  His argument’s okay—the Christopher Hitchenses and Richard Dawkinses of the world help us religious people sharpen our arguments—but his history is awful:

 Back in the States, the closet door on adamant disbelief may not yet be open, but President Barack Obama’s inaugural address certainly began turning the doorknob. For the first time in history, a president publicly acknowledged atheists by including “nonbelievers” in our “patchwork heritage” of “Christians and Muslims, Jews and Hindus.” To make sure no one missed his point, he spoke admiringly of “humanists” and “those who subscribe to no faith” in his comments a few weeks later at, of all places, the National Prayer Breakfast.

If O’Sullivan’s “first time in history” is restricted to inaugural addresses, he might have a point.  But it looks like he really believes Obama is the first president in any setting to “publicly acknowledge” people with no religious faith as full participants in the American project.  And that’s preposterous.  Here’s just a sample from President George W. Bush:

“An American President serves people of every faith, and serves some of no faith at all.”–National Prayer Breakfast, Feb. 1, 2001

“Americans practice different faiths in churches, synagogues, mosques and temples.  And many good people practice no faith at all.”–Easter weekend radio address, March 30, 2002

“In this country we’re great because we’ve got many faiths, and we’re great because you can choose whatever faith you choose, or if you choose no faith at all, you’re still equally American.”–Remarks to leadership conference on faith-based initiative, March 1, 2005

“In our country, we recognize our fellow citizens are free to profess any faith they choose, or no faith at all.  You are equally American if you’re a Jew or a Christian or Muslim.  You’re equally American if you choose not to have faith.  It is important America never forgets the great freedom to worship as you so choose.”–National Prayer Breakfast, February 2, 2006

“On this day, we also remember that we are a people united by our love for freedom, even when we differ in our personal beliefs.  In America, we are free to profess any faith we choose, or no faith at all.  What brings us together is our shared desire to answer the call to serve something greater than ourselves.”–Remarks on National Day of Prayer, May 4, 2006

You get the idea.  And Bush wasn’t even the first.  Here’s Ronald Reagan (who probably wasn’t the first either) at an ecumenical prayer breakfast in Dallas on August 23, 1984: “We establish no religion in this country, nor will we ever. We command no worship. We mandate no belief. But we poison our society when we remove its theological underpinnings. We court corruption when we leave it bereft of belief. All are free to believe or not believe; all are free to practice a faith or not. But those who believe must be free to speak of and act on their belief, to apply moral teaching to public questions.”

In the blazing light of Barack Obama’s general wonderfulness, I suppose all prior history becomes dim to our sight.  Even the names of once-famous atheists from those dark days escape us: it’s Madalyn Murray O’Hair, professor, not O’Hare.

Interview on “Original Meaning and Judicial Restraint”


In this University Bookman interview, I discuss the Supreme Court, competing judicial philosophies, Roe v. Wade, media coverage of the Court, my favorite think tank (surprise!), and more.

Obama Judicial Nominations and the ABA


The BLT (Blog of Legal Times) reports the unsurprising news that the ABA’s Standing Committee on the Federal Judiciary is consulting with the Obama administration about the role that the ABA committee will play in evaluating judicial nominations. The only matter at issue, it would seem, is whether the Obama administration restores the ABA committee’s pre-Bush 43 privileged role in reviewing prospective nominees before the president formally nominates them or whether the ABA committee instead conducts its evaluations post-nomination. It’s an easy call that the Obama administration will curry favor with the ABA by restoring its privileged pre-nomination role, no matter how little the ABA committee deserves that special status.


As to how little the ABA committee deserves that special status: Read my essays “Not Qualified:  The American Bar Association and its role in our confirmation process” and “Not Credible ‘Whatsoever’: The ABA sinks deeper” (which documents the perjurious testimony of the then-chair of the ABA committee). Further, consider the fact that the current chair of the ABA committee who is consulting with the Obama administration is none other than Kim J. Askew, who led the investigation, and wrote the report, that resulted in the ABA’s thoroughly scandalous “not qualified” rating of President Bush’s 2006 nomination of Michael B. Wallace to the Fifth Circuit.  As I wrote in the first essay linked above, Askew found Wallace


lacking on the highly malleable element of “judicial temperament.” Her primary argument is that Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case somehow indicates that he is not committed to equal justice. Lawyers, she says, charged that the position that Wallace advanced on behalf of his client was not well-founded and that he was pushing his own personal views. But it is difficult to discern any sense to these charges, much less serious evidence to support them.


Worse, it turns out that the plaintiffs’ counsel in that case was none other than the Lawyers’ Committee for Civil Rights. Thus, Askew was assessing the weight and credibility of comments made by those associated with the same left-wing group for which she serves as a trustee. Her obligation to recuse herself from the investigation and evaluation of Wallace would seem clear. For perspective, imagine this farfetched scenario: The ABA committee is controlled by conservatives, and a liberal president nominates a distinguished lawyer who has a record of pro-abortion advocacy. The ABA committee member who investigates the nominee is on the board of a national pro-life organization that has litigated against the nominee and perceives that litigation as the primary mark against the nominee. Further, both the chairman of the committee and the ABA president had publicly attacked the nominee over his involvement in a liberal cause. On the recommendation of the investigating member, the committee rates the nominee “not qualified.” Wouldn’t everyone recognize that the process was unfair and that the rating was highly suspect? The same conclusions should apply to the ABA’s rating of Wallace.


But it gets even worse. The ABA’s procedures required that Askew disclose adverse information to Wallace if she could do so without violating the confidentiality of witnesses, or, if not, that she not include the information in her report to her fellow committee members. But Askew’s testimony makes clear that she repeatedly refused to disclose to Wallace key details regarding vague allegations that she presents — but that she included the allegations in her report to the committee. Askew’s violations of the ABA’s own procedures deprived Wallace of any effective opportunity to contest and refute the charges against him.


According to The BLT, Askew is reiterating to the White House the ABA’s party line:


The Committee bases its evaluation solely on a peer review of each nominee’s integrity, professional competence and judicial temperament. The Committee does not consider a nominee’s ideological or political philosophy.


But that second sentence is simply not true, as the ABA committee is able to consider “ideological or political philosophy” as part of “judicial temperament”. The ABA Committee’s own explanation of its criteria states (page 4 of this document (emphasis added)):


In evaluating “judicial temperament,” the Committee considers the nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.


As noted above (and as I discuss more fully in this post), Askew herself used Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case as evidence that he was not committed to equal justice. So the italicized terms (“compassion”?!? dispassion is the judge’s duty) are clearly sufficiently malleable, and have been misused, to punish conservatives for being conservatives.

This Day in Liberal Judicial Activism—February 20


1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Week entry for February 10, 1947.)

Christian Science Monitor to Obama: Favor Judicial Impartiality


A house editorial in the Christian Science Monitor makes these sound observations about President Obama and judicial nominations:


Obama’s nominees for the 13 federal judicial circuit courts will be a fresh test of his call for a new bipartisanship and a hint at his Supreme Court nominees….

Now, depending on the always-shifting partisan split in the Senate, the president could either slide liberal nominees through easily or try to find impartial candidates who can rise above either camp’s interests with a commitment to true impartiality from the bench.

Obama’s record as a senator does not indicate he has a listening heart on judicial selections. He was not one of the bipartisan “Gang of 14″ senators who, in 2005, brokered a compromise to avoid filibusters for votes on President Bush’s court nominees. He has also made clear that he wants courts to use the Constitution for social policy. Judges, he said, must have “the heart, the empathy … to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

While such empathy is necessary for presidents or legislators, it runs counter to the judicial oath. Judges must “administer justice without respect to persons, and do equal right to the poor and to the rich.” And a Rasmussen poll last month found that nearly two-thirds of Americans say court rulings should be based on what is written in the Constitution. Only 35 percent believe Obama agrees with them on that.

What to Do With the Uighurs?


Back in October, Judge Ricardo Urbina of the federal district court in D.C. ruled, on a habeas petition, that 17 Uighurs (Muslims of Turkic ethnicity from western China) held at Guantanamo must be released into the United States.  The government no longer considers the Uighurs to be enemy combatants–i.e. included among those against whom military force was authorized in 2001–but neither does it wish to see them come stateside, for very good reasons (like their membership in a group our State Department lists as a terrorist organization).  And sending them back to China looks like a sentence to torture and death at the hands of the Chinese government.

So clearly the Bush administration–as now its successor the Obama administration–had a dilemma about the final disposition of the Uighurs.  But it was judicial activism of the worst sort for a judge to order the release of these men into the U.S.  Thus it was good news yesterday when a three-judge panel of the D.C. Circuit Court of Appeals unanimously overturned the district court ruling.  One of the three appellate judges, though, Judith Rogers, concurred in the judgment on grounds that Judge Urbina had merely acted hastily; Judge Rogers would appear to be ready to release the Uighurs into the U.S. after a couple more questions are answered.

Thank goodness, then, for Judges Arthur Randolph and Karen Henderson, who held (in Randolph’s opinion for the court) that there is no power presently in the hands of federal judges to admit aliens to the United States whom the political branches of government have not seen fit to admit under relevant immigration laws and procedures.  The Uighurs, Randolph pointed out, haven’t even applied for admission to the United States under any immigration rubric.  And never in our history has a federal court fashioned an extra-statutory ground for ordering the entry into the U.S. of an alien kept out of the country by the government.

Judge Rogers argues that the majority vitiates the Supreme Court’s Boumediene ruling granting the Guantanamo detainees the privilege of habeas petitions in federal courts.  She might better take that complaint to Justice Anthony Kennedy and his colleagues in the Boumediene majority, who created this mess.  As Judge Randolph notes, it is one thing to say that a habeas-wielding court can order someone’s release from detention–as Boumediene seemed to say of Gitmo detainees.  But it’s another thing to say that a court using habeas powers can order someone’s entry into the U.S. in defiance of our immigration laws and of the policymakers who implement them.  Not for the first time, the D.C. Circuit finds itself dealing with a crapstorm originating above them in the Supreme Court.

Does this mean Boumediene is a dead letter?  One can hope so, but I doubt it.  It does mean that while this matter is left to courts, easy answers won’t be forthcoming.  And it means that President Obama–who can enjoy this moment as the named respondent in Kiyemba v. Obama–has the ball in his court now.  Close Gitmo?  Sure.  Then what?

Maybe he can brainstorm up a solution with that other legal genius, Anthony Kennedy.

UPDATE: I am reliably informed that the good Judge Randolph travels under his middle name, Raymond, not his first name as I have it above.  Henceforth I will identify him as A. Raymond Randolph.  Either way he did good work yesterday.

This Day in Liberal Judicial Activism—February 18


1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty. 

Re: Reducing Abortions


Late last night, posted a response to Michael New by Professor Joseph Wright of Penn State, reiterating claims about welfare spending’s effect on abortion rates that he has made in a working paper that is intended to support the study he published for Catholics in Alliance for the Common Good (got that? whew!).  Unfortunately, he concludes by accusing New of “[p]ersonal attacks” on his “academic honesty.”  I hadn’t noticed Professor New committing any such breach of etiquette in his criticisms of Wright and CACG, although he has remarked on the usefulness of Wright’s findings for the supporters of President Obama.  Now who is doing the “personal” attacking?  Judge for yourself.

UPDATE: Michael New has a rejoinder.

Oklahoma Time-Waster


The Oklahoma state legislature may soon vote on House Joint Resolution 1003, which asserts that the federal government has legislated, and continues to legislate, in violation of the Tenth Amendment.  Well . . . yes.  And your point is?

At least the state isn’t threatening (so far) to sue the federal government, which would be really pointless.  But this resolution isn’t much more useful than a handful of angry letters to the Tulsa newspaper.  Once upon a time a state’s legislature could go into high dudgeon and really affect politics in the nation’s capital–as with the Virginia and Kentucky Resolutions of 1798, in response to the Alien and Sedition Acts (though it’s widely forgotten that more states publicly disagreed with these two than agreed with them).  But those were the days when state legislators chose U.S. senators, when legislatures still controlled or strongly influenced the choice of presidential electors, and when state governments in general were in a position to give national politics a hard shove just by announcing where they stood.  Not so any longer. In D.C., this will hardly even be noticed.

That fact may be a result of exactly the federal depredations that Oklahoma rightly but bootlessly complains about.  But the energy expended on thumping the table about the Tenth Amendment might be better spent on recruiting small-government conservatives, in Oklahoma and nationwide, to run for Congress and change things where change is possible.  You say both of Oklahoma’s senators and four out of its five representatives are Republicans who voted against the stimulus?  That’s a good start.

As for this resolution, it would be easier to credit it as more than a symbolic tantrum if the state legislature were to resolve that no agencies of the state would be permitted to take any of the billions of federal dollars gushing into state capitals from the “stimulus” bill just passed in Washington.  It ain’t happening.  That would be really hard, and maybe more than reason can expect.  But self-denial is always harder than symbolism.

UPDATE: I agree with Ramesh that “[t]here is . . . nothing unprincipled about both opposing the bill and taking the money if it passes.”  But it does get a bit hard to choke it down after you’ve complained about the appalling violation of the Constitution that the bill represents.

What Kinds of Laws Reduce Abortions?


Back in August, a group calling itself Catholics in Alliance for the Common Good released a study purporting to show that, rather than attempt to condition or restrict or delay abortion choices, states should increase welfare spending if they want to reduce the numbers of abortions.  After the election–an event on which the study’s announcement was intended to have an effect, and perhaps did–CACG released a revised version making much less sweeping claims.

Professor Michael New, of the University of Alabama and the Witherspoon Institute, had a hand in prompting the revisions, and has some choice words for the new version of CACG’s study at  Catholics in Alliance has a reply posted at the same site, and New has the final word.  The state of play seems to be summed up in New’s remark that “welfare policy has no more than a marginal effect on the incidence of abortion.”  By contrast, “there are numerous peer reviewed studies which indicate that parental involvement laws and public funding restrictions reduce abortion rates.”  So far CACG seems to have taken little interest in what the evidence suggests about what really works.

RalphNeas Moves On


Former People for the American Way President Ralph Neas will no longer be waging the judicial nomination wars.  Having left PFAW, Neas will now head up the National Coalition on Health Care, according to this report.

Hyperventilating About the Exclusionary Rule


For the second time in a little more than a fortnight, writers named Adam at the New York Times are getting altogether too excited about the grim fate that awaits the Fourth Amendment exclusionary rule under the Roberts Court.  First there was Adam Liptak, successor to Linda Greenhouse in covering the Court, who suggested on January 31 that “the exclusionary rule itself might be at risk” thanks to a January 14 ruling in Herring v. United States.  Today it’s editorial writer Adam Cohen sounding the same alarm, saying that “Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule.”  Both Adams remind us that, as a young lawyer working in the Reagan Justice Department, Roberts wrote a memo critical of the exclusionary rule.

Breathe into the paper bag, boys.  The Herring decision is really pretty ordinary, and simply applies a principle established a quarter century ago in United States v. Leon: that when law enforcement officers rely in good faith on what they believe to be a valid warrant, and that warrant is subsequently found to be invalid, the evidence the officers obtain by virtue of it will not be excluded.  The exclusionary rule is not, the Court emphasized in the Leon case, a command of the Constitution itself.  It is a remedial rule the Court itself invented as a deterrent to police misconduct.  When its application would have no deterrent effect, its use is inappropriate.  Leon and Herring are practically indistinguishable.  In the 1984 case, an evidentiary hearing long after the search resulted in the warrant being invalidated because an affidavit was held insufficient to establish probable cause.  In last month’s case, an unintended failure to keep computer records up to date across local jurisdictions resulted in officers acting on a warrant they had no way of knowing had been withdrawn.  No police misconduct occurred in either case, and it’s hard to see how future deliberate misconduct could slip under the umbrella of either ruling, so long as courts remain interested in the validity of warrants and the honesty of policemen.

I would not be sad to see the exclusionary rule go.  It is a perverse instrument for vindicating the Fourth Amendment, and was wholly unknown to the founding generation.  But there’s no sign that the Roberts Court has lost its interest in maintaining it.  Neither is there any reason to suppose that Herring, which like Leon involved a case where there was a warrant (apparently) at the time the officers acted, will lead to a broad approval by the Court of searches where no warrant was ever in existence at all.

But facts are no deterrent to New York Times writers.  In today’s piece, Cohen even has the gall to write that “in the last few years” while a supposedly terrible (but actually nonexistent) erosion of the rule has been happening, “the federal government engaged in an illegal domestic wiretapping program.”  Is there some requirement that writers for newspapers keep up with the news?  As we learned last month, the Foreign Intelligence Surveillance Court of Review held last August that the Fourth Amendment warrant requirement does not apply “when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.”

Time to take the bag away from one’s face and look around, don’t you think?

This Day in Liberal Judicial Activism—February 15


2008—In Ricci v. DeStefano, a Second Circuit panel issues a summary per curiam order that rejects the claim by New Haven firefighters that city officials violated their Title VII and equal-protection rights by throwing out the results of two promotional exams.  On the panel is Judge Sonia Sotomayor, who has been thought by many to be a leading contender for a Supreme Court appointment in the Obama administration.

A few months later, the Second Circuit votes 7 to 6 to deny en banc rehearing in Ricci.  A remarkable dissent, written by Clinton appointee José Cabranes and joined by his five dissenting colleagues, indicates that Sotomayor and her colleagues engaged in an extraordinary effort to bury the firefighters’ claims:  In a case in which the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” in which two amicus briefs were filed, and in which oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which gives the reader virtually no sense of what the case is about.  Then, just three days before Cabranes issues his opinion (and in an apparent attempt to preempt it), “the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court’s opinion in the Westlaw and LexisNexis databases.”  As Cabranes sums it up:

“This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit.  It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal.  Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.”

And then this killer understatement:  “This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”

In January 2009, the Supreme Court grants review of the Second Circuit ruling.  A Supreme Court decision is expected by the end of June 2009.

This Day in Liberal Judicial Activism—February 14


1992—The Third Circuit hears oral argument on Morristown, New Jersey’s appeal of a wonderfully wacky ruling by federal district judge H. Lee Sarokin that the Morristown public library’s policies governing behavior in the library are facially unconstitutional. Richard R. Kreimer, a homeless man, camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.  The library then adopted written policies. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin ruled that the library was a traditional public forum like a street or sidewalk, that the carefully crafted policies were overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression.  Five weeks after oral argument, the Third Circuit unanimously reverses Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin had deprived other citizens of the right to use a library in peace.  Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library.  (For a fuller discussion of this This Week classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military).  Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity.  Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.”  According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited.  (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

The Stimulus’s Defenseless, Unconstitutional Religious Bigotry


We all know that there are plenty of policy problems with the stimulus bill, but there is a pretty serious constitutional problem as well.  Buried deep in a bill mostly involving itself with spending billions of dollars, Congress takes a moment to explain how $3.5 billion it allocates for renovation of public or private university facilities can’t be spent:

(2) PROHIBITED USES OF FUNDS.—No funds awarded under this section may be used for—

(C) modernization, renovation, or repair of facilities—

(i) used for sectarian instruction, religious worship, or a school or department of divinity; or

(ii) in which a substantial portion of the functions of the facilities are subsumed in a religious mission; or construction of new facilities.

A moment of fiscal restraint!  There’s just one problem: This provision violates the Constitution by singling out groups with religious viewpoints, and denying them access to facilities on the same grounds as other groups.  To understand how, it is necessary to focus on the word “used.”  If a facility ordinarily open to use by students groups—be it a dorm common area or a classroom—were to be renovated with stimulus funds, the statute on its face would prohibit the religious group from using the space, if the use were for anything that might be construed as sectarian instruction or worship.  This is hardly an open question of constitutional law.  The Supreme Court has time, and time, and time, and time, and time again not only found that the Constitution’s Establishment Clause does not require such exclusion of religious speech, but that the First Amendment prohibits it on Free Speech and Free Exercise grounds.

Senator DeMint recognized the constitutional error, and sought to amend the stimulus bill to remove the offending language.  His first attempt failed, and the reasons offered in opposition ranged from erroneous to irrelevant. 

Several critics, including Senator Durbin on the floor, argued that the language only covers buildings used primarily or substantially for religion.  This is a plain misreading of the statute, which in section (i) prohibits any use for religious worship.  Indeed, because the statute uses a disjunctive “or” to separate subsections (i) and (ii), it is clear that the “substantial portion of the functions” requirement of part (ii) is not necessary to violate subsection (i), which forbids mere use.

The next argument made by Durbin was that language similar to this has been included in education funding bills since the 60s.  Why should that matter?  The weight of Supreme Court precedent makes clear that an overbroad and discriminatory restriction such as the language in this bill cannot stand.  Should the fact that Congress has written unconstitutional language in the past require it to continue to use that unconstitutional language in the future?  When the anti-religious language was first used, Congress had an excuse: The Supreme Court had issued rulings which expressed greater hostility to funding that even incidentally touched religion.  The Court has since rejected that theory, stating firmly in Rosenberger that “There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.”  Congress no longer has an excuse to perpetuate the constitutional error.

Finally, I have heard some opponents claim that the statute would not prohibit religious groups from meeting in common spaces because Supreme Court precedent is well-settled in favor of equal access, and therefore the usual suspects will not bring suit.  Leaving aside for one moment the prudence of anti-religious legal challengers, if even the opposition concedes that the law is so well-settled, isn’t that all the more reason to support removing or amending the offending language?  To use the “but we won’t sue because we’d surely lose” argument concedes that the language, as written, is unconstitutional.  Members of Congress, having taken an oath to support and defend the Constitution, should not be in the business of passing unconstitutional laws.    

This Day in Liberal Judicial Activism—February 13


2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court.  Never mind, as dissenting judge O’Scannlain points out, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin).  As O’Scannlain observes: 

Unfortunately, rather than adhering to the clear limits established by Supreme Court precedent, the majority here mandates prison employees to anticipate when the denial of unnecessary services will so fluster an inmate that his filing, though in no way actually frustrated, might be delayed. Such a rule amounts to an unreasonable demand that prison librarians be not only experts on their actual duties, but also clairvoyant.”

Re: Abe Who?


Never mind the Times and the Post.  Just in time, on Lincoln’s 200th birthday, our reliable friends at the Claremont Review of Books come out with their latest issue, featuring six pieces on the Great Emancipator, two of which, by Diana Schaub and Mac Owens, are online for non-subscribers.

Sneak Attack on Marriage


If you missed it, go and read William C. Duncan’s article posted at NRO yesterday, on the order of Judge Stephen Reinhardt (yes, he of the oft-rebuked Ninth Circuit) holding the Defense of Marriage Act unconstitutional.  Duncan does not link to Reinhardt’s February 2 opinion, though, nor mention the January 13 order of Judge Alex Kozinski, chief judge of the Ninth Circuit, similarly holding in favor of “spousal” benefits for an individual “married” to a circuit employee under the short-lived ruling of the California Supreme Court.  Judge Kozinski did not opine that DOMA is unconstitutional, but instead offered a (shall we say) creative reading of the Federal Employee Health Benefits Act to avoid DOMA’s application to FEHBA’s beneficiaries.  This, Judge Kozinski said, would enable him to avoid addressing the constitutionality of DOMA, which he called a “hard question” under precedents such as Romer v. Evans and Lawrence v. Texas.

I am not well-schooled in the arcana of federal court administration.  But these kinds of orders, addressing important matters of statutory interpretation and constitutional law, raise (for me anyway) some interesting questions:

1.  In their respective capacities as chief judge (Kozinski) in the case of a circuit court staff attorney, and as designee of the chair of the circuit’s Standing Committee on Federal Public Defenders (Reinhardt) in the other instance, these two judges are not really acting in a judicial capacity but instead in an administrative one.  Is it really appropriate in such a capacity to issue orders with constitutional implications, ruling on the interpretation and validity of acts of Congress, with all the trappings usually marking judicial reasoning, in instances where the judges act solo in their chambers, without referring such questions to their judicial colleagues?

2.  Granting that such orders are not treated as having precedential value for judicial purposes, they nonetheless represent holdings declaring the rights of individuals under federal law and the Constitution.  Is it appropriate for DOMA to apply everywhere in the federal workforce except in the special enclave of employment in the Ninth Circuit?

3.  Since these orders were issued in review of the decisions of human resource managers in the offices of the circuit, they did not arise on appeal from any federal district court in the circuit.  Hence they did not receive the full panoply of actual adjudication, with the concrete adversariness that occurs in courts of law, where a party contests the application of a federal law and the government gets to defend its policy, through its lawyers, in full-fledged written and oral argument before the judges.  These orders were the work of judges-as-supervisors-of-HR-managers, acting in the absence of all the process that marks the legitimate legal work of Article III courts and judges.  Does that seem right?

4.  Are these orders of Judges Kozinski and Reinhardt not then “advisory opinions” on the meaning and constitutionality of federal law, of just the sort that the courts have held since the 1790s to be inappropriate for judges to pronounce?

5.  And so what then, exactly, is the obligation of the Ninth Circuit’s HR managers to pay attention to what the judges have said here?

I’m just asking.

Abe Who?


With apologies to the folks at the Media Blog for poaching on their territory, I have to remark on the scant coverage in some of our country’s top newspapers of the bicentenary of Abraham Lincoln’s birth.  In today’s New York Times, buried in the Arts section, you’ll find an item a little more than 100 words in length, noting that the Lincoln Prize given by Gettysburg College will be shared by two authors of recent books, James M. McPherson and Craig L. Symonds.  No mention in the story that the announcement of the Prize is timed to coincide with Lincoln’s birthday.  I don’t think you’d learn from the Times today that this is Lincoln’s birthday, not to mention that it’s the two-hundredth anniversary of it.  Charles Darwin, on the other hand, who was born the same day as Lincoln, rates two pieces in the editorial pages

The Washington Post does a little better: nothing in the A section at all, nor on the editorial pages, but there are some stories in Metro and Style that relate to Lincoln and mention the birthday’s bicentenary.  Again Darwin gets bigger play–a front-page article and an op-ed.

Contrast this with a century ago.  The Post, a paper for a city that then had a distinctly southern tilt, nonetheless played the Lincoln centenary very strongly.  The paper for February 12, 1909–a total of 16 broadsheet pages–carried a two-page spread devoted to Lincoln, with large illustrations, facsimiles of documents in his hand, and much else.  The paper’s lead editorial began, “As the world counts greatness, there have been but two native Americans of the first rank,” namely Washington and Lincoln.  Darwin?  Never heard of ‘im.

But the Times really outdid itself on February 12, 1909.  Of its 20 broadsheet pages, six pages–six!–were turned over entirely to commemoration of Lincoln.  One of those pages was a reprint of the entire front page of the Times of April 16, 1865, reporting Lincoln’s assassination.  Elsewhere there were illustrations, documents, poetry, book reviews, and much else besides.  The lead editorial of the Times called him “Lincoln the Beloved,” saying “No man in our history, or, indeed, in all history, has earned that title more richly against such adverse conditions.”

Darwin rated a celebratory op-ed on the same page, by a Dartmouth biology professor.  But there was no mistaking which man’s birthday was more important to the editors and readers of the Times.

Today in the Times it’s “Abe who?”  Thank goodness for NRO, with Allen Guelzo today, and Bill Bennett and John Cribb–and thank goodness for Bill’s radio show, devoted almost entirely to Lincoln this morning.

UPDATE: I should also have mentioned John J. Miller’s “Between the Covers” interview with Michael J. Kline, author of The Baltimore Plot, which sounds very interesting.

For the Record on Ogden and Kagan


The current version of a blog post on DAG nominee David Ogden mistakenly attributes to me certain critical comments that I have not in fact made.  (I have made critical comments here on Bench Memos, but I haven’t made, here or elsewhere, the comments the post attributes to me.)

While I’m at it, I’ll note that I’ve slightly revised the end of my post yesterday on SG nominee Elena Kagan and criminal procedure.

California Prisoner-Release Order


Yesterday, a three-judge district court consisting of Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson issued a “tentative ruling” that (1) overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners”;  (2) “there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions”; (3) the Prison Litigation Reform Act’s limitations on judicial prisoner-release orders do not apply under the circumstances; (4) California’s prisons, currently operating at close to 200% of design capacity, must reduce their inmate populations to at most 120% to 145% of design capacity; (5) the release of prisoners down to the imposed caps—a release, according to this Los Angeles Times article, of “as many as 57,000” prisoners—can “be achieved without an adverse effect on public safety”; and (6) it is their intention to adopt an order requiring a reduction in the prison population “within a period of two or three years.”


It’s difficult to imagine a much less sober panel than these three judges.  Even California attorney general Jerry Brown, who is a wild-eyed supporter of liberal judicial activism, has criticized their ruling.  According to that same Times article:


Brown called the ruling “the latest intrusion” on California’s prison system by the federal courts. In a statement, he labeled the order “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”


Maybe Brown ought to come up with a plan that relocates the released prisoners in the neighborhoods of those three judges.

A Wood Boomlet


The Chicago Tribune profiles Judge Dianne Wood of the U.S. Court of Appeals for the Seventh Circuit as a potential Supreme Court nominee.

Judge Diane Pamela Wood, 58, has spent the last 14 years going toe-to-toe with the legendary conservative lions of Chicago’s 7th Circuit Court of Appeals, Richard Posner and Frank Easterbrook, and her fans say she could ably fill the shoes of Ruth Bader Ginsburg on the moderate-liberal wing of the U.S. Supreme Court.

Wood often finds herself the lonely dissenter on three-judge panels, arguing that atheists should be able to challenge the mostly-Christian prayers Indiana legislators use to open their sessions, that a gay Wisconsin teacher should be able to sue for alleged discrimination, that a Jewish condo dweller should be able to sue for discrimination when the building makes her take down her mezuzah, or that Indiana voters should not have to show ID to vote.

Conservatives dominate here in the 7th Circuit, which includes Illinois, Wisconsin and Indiana. Wood, sometimes in the majority, other times in dissent, has taken the pro-choice side in three high-profile cases that could become lightning rods for conservatives if she is President Obama’s first nominee for the U.S. Supreme Court.

One particularly interesting aspect of the story is its emphasis on Judge Wood’s personal connections to individuals of influence within the Obama Administration, including Abner Mikva and Cass Sunstein.  Judge Wood would deservedly be on any Democratic President’s short-list for the High Court, but her connections could boost her prospects should there actually be an opening.

Re: Obama’s SG Pick Elena Kagan—Establishment Clause


Credit to Elena Kagan:  In her confirmation hearing (still underway), Kagan testified that when she read the quote from her Bowen v. Kendrick memo (discussed here) on a blog, she said about her own statement something like, “That’s the dumbest thing I’ve ever read.”  That’s overly harsh, but still refreshing. 


(I won’t fault Kagan for not giving a shout-out to Bench Memos either in that answer or in another one in which she plainly referred to another Bench Memos post, but I’m happy to have her as a reader, if only temporarily.)

Denver and Boulder Events


This Thursday, February 12, I will be in the Denver area to take part in two events sponsored by law school chapters of the Federalist Society.


At noon, I will take part in a discussion/debate at the law school at the University of Colorado (at Boulder) on “President Obama’s Judges:  More Judicial Activism or More Justice”.  More information is available here.


At 4:00 p.m., I will speak on “Judicial Nominations Under the Obama Administration” at the University of Denber law school (room 170).  For more information, or to RSVP, contact Dustin Sparks at  

This Day in Liberal Judicial Activism—February 10


1947In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

Obama’s SG Pick Elena Kagan—Criminal Procedure


I’ve reviewed a handful (five, to be precise) of “cert memos” on criminal-procedure issues that Elena Kagan prepared in late July and August 1987 as a law clerk to Justice Thurgood Marshall.  The memos reveal Kagan to have been decidedly to the Left on these issues.

In one memo (concerning a cert petition in Boles v. Foltz), for example, Kagan addressed the question “whether pet[itione]r invoked his right to counsel so as to preclude police officers from interrogating him prior to his meeting with an attorney.”  When first arraigned on a larceny charge, the petitioner had made a statement that was ambiguous on the question whether he was invoking his right to counsel.  Four days later, police officers read him his Miranda rights, obtained his signed waiver of those rights, and interrogated him.  During the interrogation, he confessed to a murder.  In a habeas challenge to his murder conviction, the Sixth Circuit, in an opinion by Carter appointee Cornelia Kennedy, ruled that his initial statement had not invoked his right to counsel and that his statement of confession was admissible.  Kagan’s contrary assessment:  “I think that the admission of this statement is outrageous.”  Kagan, however, expressed her “worry … that the Court might reach the opposite result so that all ambiguous statements in the future will be construed in favor of the police.”

Concern over—verging on contempt for—what “a majority of this Court might hold” (memo on Floyd v. Connecticut, Aug. 14, 1987) is stated, in one fashion or another, in each of these memos.  E.g.:  “Taking cert on this case would only give this Court an opportunity to place its stamp of approval on pretextual stops” (memo on Verona-Algos v. United States, Aug. 11, 1987); “I don’t see any reason to give this Court an opportunity to tackle the [Fourth Amendment] issue presented here” (memo on Vrtiska v. Nebraska, Aug. 28, 1987); “I cannot imagine this court doing anything good with this case” (involving invocation of right to counsel) (memo on Russell v. Texas, July 24, 1987).

What was “this Court” that Kagan so feared?  At the time she was writing these memos, the Court consisted of Chief Justice Rehnquist and Justices Brennan, White, Marshall, Blackmun, Stevens, O’Connor, and Scalia.  Justice Powell had recently resigned, and Judge Bork’s nomination to replace him was pending.  So even if Bork had joined the Court, the fifth vote needed for any conservative majority was Justice O’Connor.  So Kagan’s concern-verging-on-contempt was for what O’Connor might do.

One might argue that Kagan, rather than expressing her own personal views, was merely advising the very liberal Marshall on what was consistent with his judicial approach. But I see nothing in these memos that supports that reading (and much that doesn’t).  [Update (2/10):  On review, I don’t think that I expressed myself as clearly as I should have in the preceding sentence.  Let me try again:]  The purpose of Kagan’s memos was indeed to advise Justice Marshall on what was consistent with his judicial approach, but Kagan evidently believed (quite sensibly, if she shared Marshall’s overall outlook) that expressing her own views furthered that purpose.

Supreme Speculation


Over at SCOTUSBlog, Tom Goldstein speculates on how the news of Justice Ginsburg’s cancer could affect the potential retirement plans of other Justices, Stevens and Souter in particular.  At the VC, Orin Kerr comments on Goldstein’s post here.  Meanwhile, there’s a post at the new CQ “Legal Beat” blog on how Elena Kagan’s SG confirmation hearing could be “a Supreme Court dress rehearsal.”

LA Times to Obama: Renominate Keisler


Among the recommendations that this Los Angeles Times house editorial makes to President Obama on judicial nominations “to deliver on the bipartisanship he has promised,” I can applaud the third: 

“Obama should follow the advice of Sen. Arlen Specter (R-Pa.) and renominate three Bush nominees whose appointments have languished in the Senate but who have been highly rated by the ABA and received bipartisan support.… Renominating [Peter] Keisler [to the D.C. Circuit] could signal the beginning of a long overdue truce in the judge wars.”

What’s the probability that Obama will follow this recommendation, either as to all three Bush nominees Specter identified or as to Keisler only?  I’d put it somewhere between zero and .0000000000001.  That’s, of course, because I don’t take seriously Obama’s bipartisanship talk.  I’d be delighted if he were to prove me wrong.

The Confirmation Rush


Given the hard-Left records of President Obama’s senior DOJ picks, it’s no surprise that Judiciary Committee chairman Pat Leahy is pressing for early hearings to make it difficult for Senate Republicans to expose those records.  Compare and contrast:

In 2001, President Bush’s nominee for Deputy Attorney General, Larry Thompson, received his committee hearing 50 days after President Bush announced his nomination, and he was confirmed 85 days after that date.  In 2009, President Obama’s nominee for Deputy Attorney General, David Ogden, received his committee hearing 32 31 days after then-President-elect Obama announced his nomination.

In 2001, Bush’s nominee for Solicitor General, Ted Olson, received his committee hearing 50 days after Bush announced his nomination, and he was confirmed 99 days after that date.  In 2009, Obama’s nominee for Solicitor General, Elena Kagan, is slated to have her committee hearing tomorrow—36 days after Obama announced her nomination—even though (as a Senate staffer tells me) the questionnaire response that she submitted doesn’t include all the requested publications.

If the 18 19-day and 14-day differences strike you as insignificant, have in mind that those extra days would more than double the time that committee staffers have had to review the nominees’ questionnaire responses and the voluminous materials accompanying those responses.

In Roll Call today, the Judicial Confirmation Network has this ad faulting Leahy’s rush and placing it in the context of Obama’s broader mess-ups on nominations.

Obama’s SG Pick Elena Kagan—Establishment Clause


Last month, I discussed (here and here) SG nominee Elena Kagan’s vigorous opposition to the Solomon Amendment and the extremist rhetoric (“a profound wrong—a moral injustice of the first order”) she deployed against the Don’t Ask, Don’t Tell law.

I’d now like to call attention to a memo (dated October 22, 1987) that Kagan wrote as a law clerk to Justice Thurgood Marshall in the case of Bowen v. Kendrick.  As Kagan’s memo explains, at issue in that case was the Adolescent Family Life Act, which authorized federal funds to support demonstration projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents.  AFLA specifically contemplated that “religious organizations” could receive funds under the Act.  The district court ruled that the inclusion of religious organizations violated the Establishment Clause.

In her memo to Justice Marshall, Kagan agrees with the district court’s Establishment Clause ruling and adds this remarkable explanation (underlining in original; italics added):

The funding here is to be used to support projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents.  It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching.… [W]hen the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.

The italicized sentences reflect a bizarre understanding of religious organizations.  How is it that it “would be difficult for any religious organization to participate in [projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents] without injecting some kind of religious teaching”?  Kagan offers no explanation.  Either she had a remarkably narrow understanding of how many religious organizations operate, or she had a remarkably expansive view of what counts as “religious teaching”. 

It’s also strange that Kagan, in the context of Establishment Clause concerns, would label projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents “so close to the central concerns of religion”.  How do such projects in the abstract (apart from any particular concerns that could arise in their application) remotely raise genuine Establishment Clause concerns?

In (very limited) defense of Kagan, the aggressive and reflexive secularism that her comments reflect was part of a liberal orthodoxy on the Establishment Clause that had much greater currency in the mid-1980s than it does now. 

President Obama purports to have grand plans for his faith-based office.  If Kagan’s current Establishment Clause views are anything like they were two decades ago, they ought to set off alarm bells for those who recognize that the Establishment Clause should not be misused to discriminate against religious organizations.

Andrew Napolitano’s Imaginary Constitution


Today’s Wall Street Journal features an exchange on whether the government should cap executive compensation in companies receiving federal assistance.  Harvard law professor Lucian Bebchuk is for ‘em–he thinks, indeed, that they should be more stringent than the administration proposes–and former New Jersey judge Andrew Napolitano is agin ‘em.  Napolitano would have the better argument if he would stick to what’s really wrong with compensation caps–that they’re economically counterproductive, politically unwise, and morally objectionable as a species of envy-driven vindictiveness.

But Napolitano can’t leave well enough alone.  He adds the argument that compensation caps are unconstitutional.  Why?  “[B]ecause freedom of contract is protected by the Constitution.”  Oh, really?  Where?  For about 40 years, from the 1890s to the 1930s, the Court protected (inconsistently, to be sure) something it called “freedom of contract,” but it was based on an illegitimate reading of the due process clauses that was cut from the same “substantive due process” cloth that gave us the protection of slavery in the Dred Scott case and of abortion in Roe v. Wade.  You don’t have to be a fan of the New Deal to recognize how right the Supreme Court got this one when it gave up on this line of reasoning in 1937, with Chief Justice Hughes saying, “What is this freedom?  The Constitution does not speak of freedom of contract.”

Napolitano doesn’t even attempt to defend his remark about “freedom of contract,” but instead moves immediately to saying that compensation caps “also constitute a taking” prohibited by the Fifth Amendment.  It has been a hardy perennial in the imaginary constitutional garden of the libertarians to say that all manner of taxes and regulations are “takings” without “just compensation” ever since Richard Epstein of the University of Chicago published his book Takings in the 1980s.  But this reading of the Constitution is as insupportable as “freedom of contract” under “substantive” due process, and invites rampant judicial activism–only substituting conservative activism for the liberal variety.  All sorts of government regulations of the economy favor some behaviors over others, impinge on people’s earning power, and thus in some extremely remote sense “take” resources people would otherwise acquire or keep.  The Epstein-Napolitano version of the Constitution would sweep like a scythe through good regulations and bad ones, blatant ones and subtler ones, and without any basis in the original understanding of the document.

The idea of executive compensation caps is a very bad one on all sorts of policy grounds.  It is also unjust.  But injustice and unconstitutionality are not the same thing, try as Napolitano may to equate them.

This Day in Liberal Judicial Activism—February 6


1992Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case.  The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality.  Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994.  The ABA gives Sarokin its highest “well qualified” rating.  Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

Justice Ginsburg’s Health


Justice Ginsburg had surgery today after being diagnosed with pancreatic cancer.  May she have a full and speedy recovery. 

DAG Nominee David Ogden and Knox v. United States—Part 2


David Ogden was a law clerk for Justice Harry Blackmun during the Supreme Court’s 1982 Term.  In Blackmun’s Supreme Court papers is a May 3, 1983, memo that Ogden wrote to Blackmun concerning Justice Thurgood Marshall’s draft opinion in Bolger v. Youngs Drug Product Corp.  The legal question in that case was whether a federal statute that prohibited the mailing of unsolicited advertisements for contraceptives could constitutionally be applied to certain mailings.  From Ogden’s memo, it appears that the justices were unanimous at conference (as they were in their final ruling) that the prohibition could not constitutionally be applied to those mailings, but that they differed over the breadth of the rationale.

In his memo to Blackmun, Ogden argues in favor of the proposition that for purposes of the First Amendment “there is no distinction between commercial and noncommercial speech that would render potential offensiveness ‘a sufficient justification for prohibition of commercial speech.’”  I have no interest here in exploring whether or not that proposition is a sound interpretation of the First Amendment.  What is striking is the argument that Ogden advances for why “this is a very important principle”:

[I]t will prevent the ‘morality’-based type of regulation at issue here from being employed to stop the advertisement of a host of products of which the “moral majority” types or their successors-in-interest disapprove.  If they are deprived of the “offensiveness” excuse, they will have to come up with more creative excuses.

In sum, Ogden was using his position as a law clerk to advocate an expansive reading of the First Amendment in order to impair citizens whose legislative objectives he displayed contempt for, and those legislative objectives prominently included a crackdown on porn, including limiting solicitation for porn products.  There’s ample reason to believe that he’s ideologically aligned with the positions of the porn industry that he advanced in Knox and other cases, and, although I wouldn’t want to judge the experienced lawyer that Ogden now is solely by the perhaps immature law clerk that he was, it’s disturbing that he would indulge his political biases at all (much less as vulgarly as he did) in advancing his considered reading of the law.

DAG Nominee David Ogden and Knox v. United States—Part 1


Among the many cases in which Deputy Attorney General nominee David Ogden has advocated the interests of the porn industry is a child-pornography case, Knox v. United States, that caused considerable embarrassment to the Clinton administration.  In that case, the Department of Justice under President George H.W. Bush had successfully prosecuted Stephen A. Knox for violating a federal anti-pornography law.  But when Knox sought Supreme Court review of the federal appellate decision upholding his conviction, Clinton’s Solicitor General Drew Days surprised the Court by reversing the government’s position and refusing to defend the conviction.  After the Senate condemned Days’ action by a 100-0 vote and the House did so by a 425-3 vote, Clinton publicly chastised Days and Attorney General Reno eventually overturned his position.

On behalf of the ACLU and other clients, Ogden submitted a Supreme Court brief that advocated the same statutory and constitutional positions that Days has taken.  So the Senate is now being asked to confirm as Deputy Attorney General someone who advocated the same extreme positions on a federal child-pornography statute that the Senate unanimously repudiated 16 years ago.  Is that what President Obama means by change you can believe in?

Yes, yes, I can hear the objections that Ogden was merely representing his client.  But that argument is unsatisfactory in two respects.  First, Ogden has extensively represented the porn industry and its interests.  It is an entirely sensible (though certainly not infallible) inference that he is sympathetic to their interests.  Second, as I will discuss in Part 2, a previously undisclosed memo provides evidence that Ogden has long had an ideological agenda in favor of obscenity and pornography and that he has sought to use his position in government to twist the law to advance his agenda.