The Left vs. Elena Kagan?


This article in Sunday’s New York Times presents concerns from the Left that Supreme Court candidate Elena Kagan “may lean too far toward the middle.”  Those concerns (and the corresponding hopes from some conservatives) may well be warranted on national-security issues and executive power more generally. 

As solicitor general since mid-March, Kagan has taken the lead in invoking the “state secrets” doctrine in litigation challenging the NSA’s surveillance program—“Obama Administration Embraces Bush Position on Warrantless Wiretapping and Secrecy,” reads the title of the Electronic Frontier Foundation’s press release.  Kagan has surely been a major player in the Administration’s decision to continue to use military commissions to try detainees and in its about-face on releasing photos of alleged prisoner abuse.  She’s fought a court ruling that would extend habeas rights to detainees being held by the U.S. military at Bagram air base in Afghanistan.  Kagan also recently filed a brief urging the Supreme Court to overrule a 1986 precedent that expanded the rights of suspects in criminal custody.  Kagan’s leading law-review article, “Presidential Administration” (114 Harv. L. Rev. 2245 (2001)), offers a broad defense of presidential authority and explores ways that courts might promote that authority.  So there’s ample reason for folks on the Left on national-security issues to be concerned about her possible nomination.

However sensible Kagan might be on this slice of issues, it doesn’t follow that conservatives should welcome her nomination.  For on a host of other issues—abortion, same-sex marriage, race and gender quotas, and an aggressively secularist reading of the Establishment Clause, to name just a few—there’s no reason to believe that Kagan would be anything other than a doctrinaire liberal judicial activist.  In this regard, it’s striking that the Times article, which asserts that “Republicans were almost as effusive as the Democrats in their praise” for Kagan at her confirmation hearing for solicitor general, fails to note that a full 31 senators ended up voting against Kagan’s confirmation.

[Cross-posted on The Corner]

Rumors of the Day


On Friday, the National Journal’s Ninth Justice blog reported that President Obama and Supreme short-lister Diane Wood would be at the same hotel over the weekend, each attending a separate event. “Coincidence?” Now CFJ’s blog is reporting Michigan Governor Jennifer Granholm, a potential “outside the box” nominee, flew to D.C. last night.  Be prepared for more of this sort of thing from now until an announcement is actually made.

This Day in Liberal Judicial Activism—May 18


1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000.  Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990.  According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”  The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts.  Just kidding:  There is no sign that follow-up investigations of any sort ever took place.

This Day in Liberal Judicial Activism—May 17


1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance.  Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.” 

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution.  The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”  Later that same year, President Clinton appoints Daughtrey to the Sixth Circuit.  

Wooden Praise


This puff piece in today’s Washington Post on Supreme Court candidate Diane Wood somehow manages to discuss her 2001 ruling in NOW v. Scheidler without mentioning her outrageous defiance of the Court’s 8-1 reversal of that ruling.  Wood’s willful lawlessness triggered a second Supreme Court reversal—that time unanimous—and is powerful evidence that she is unfit to serve on the Supreme Court.

The Post article quotes lavish praise of Wood from “Chicago lawyer Fay Clayton”:

She’s as bright as Posner and Easterbrook and really holds her own, and I think she would hold her own with the great intellects on the high court as well….  Everything she does is based on precedent and statutory construction and the facts.

Although you won’t learn it from the Post article, Fay Clayton was—you guessed it?—counsel for the National Organization for Women in NOW v. Scheidler

The Question of Timing


From various quarters we hear that President Obama is closing in on his choice of a nominee to succeed Justice David Souter on the Supreme Court.  The president told Democratic senators on Wednesday that he would be reviewing names over this weekend, which has led some to expect an announcement next week.  But earlier today, the White House said that the president has not yet interviewed any candidates for the nomination–and he can hardly be expected to make an announcement before he meets at least one of them.  National Journal’s new blog dedicated to this story, “The Ninth Justice,” reported a few hours ago that on Sunday, both the president and Judge Diane Wood will be at the Westin Hotel in Indianapolis–he for fundraisers, she for a Seventh Circuit conference.  It’s hard to believe that a meeting won’t be arranged.

All of this has led me to muse about the matter of timing in the coming nomination, and the struggle that will inevitably ensue once it has been made.  The timing of the nomination has in some ways been forced by the timing of Justice Souter’s announcement that he will retire.  I think Ed Whelan was on to something when he remarked recently here that Justice Souter probably wanted to keep his pending retirement unannounced until the Court’s current term ends in June–that he was doing the Obama White House a favor by giving the administration a heads-up, providing them plenty of time to find his successor quietly–and that it was the White House that leaked the news and caused Justice Souter to tender his public letter.

Ed is also right, I think, to note that whoever leaked this news and started one of the capital’s biggest current stories “didn’t do President Obama any favors.”  The best course of action for the White House, I think, would be not to nominate anyone until the final day of the Court’s term has come and gone.  Yes, that may be a month from now, but typically a number of important–and often closely-divided–rulings come down in the Court’s final days.  If the president’s nominee is known at that time, the temptation will be overwhelming for observers of those last decisions to ask the question, “How would this case have come out if Nominee X were on the Court now instead of Justice Souter?”  It’s true that such a question can always be asked in retrospect when a nominee is named after the term is over.  But somehow questions asked in retrospect do not carry the same sense of lively importance, of immediacy, as questions asked about this case that has just come down this minute.  And even the nominee himself (or herself) is likely to be pestered with importunate queries on such matters–which the nominee will of course decline to answer, but which will nonetheless hang in the air for everyone else to speculate about.

Could the White House hold out another month without choosing someone?  If a nominee is soon chosen, could the president’s staff keep that from leaking?  Both prospects seem unlikely.  Whether by the administration’s choice or not, we will probably know the name of a nominee before May is over.  And then the real fun will begin that makes everything so far seem like a warm-up act.

Evidently the president and Senate majority leader Harry Reid want to have a nominee confirmed by the time the Senate takes its summer recess, scheduled to begin on August 7.  The sooner a nomination is announced, the more easily such a target date could be met.  But minority leader Mitch McConnell, quite reasonably, wants 60 days to pass before hearings convene in the Judiciary Committee, in order to prepare properly for those hearings and the debate that will follow.  Dial forward 60 days even from this Monday, and we’d be talking about hearings convening on or about Monday, July 20–which would make it impossible to complete the hearings and all post-hearing follow-up inquiries, plus floor debate, and finish with a vote on the nomination by the Senate by August 6, just seventeen days later.  Senators are loath to give up or shift their August recess, or to shorten it by returning before Labor Day.  But suppose a nomination is announced (or leaked and the story confirmed) before Memorial Day.  Is the White House prepared for klieg-light scrutiny of its nominee from Memorial Day to Labor Day, before confirmation hearings even commence?

It may have to prepare for just that.  Yep, that leaker in the White House sure made a mess.

“A Latina Judge’s Voice”


Today’s NYT reports on a lecture given in 2002 by Judge Sonia Sotomayor on “A Latina Judge’s Voice.”  In these remarks, Judge Sotomayor embraces the idea that the race and gender of a judge will and should influence that judge’s decisions and suggests that there are no “objective” legal rules, only various perspectives.  The speech is available here.  Orin Kerr and I have comments on the Volokh Conspiracy here and here.

Seventh Circuit Nominee David Hamilton—Abortion


Some additional comments on Seventh Circuit nominee David Hamilton’s extraordinary seven-year obstruction of Indiana’s 1995 statute governing informed consent for abortion (through his series of rulings, ultimately reversed by the Seventh Circuit, in A Woman’s Choice v. Newman):

1.  When Hamilton in 1997 finally permitted the waiting-period and mandatory-disclosure provisions of the law to go into effect, he displayed his own personal hostility to those provisions as he complained that they “appear likely to be useless, patronizing, and annoying, and there is no evidence that these provisions will actually serve any constitutionally legitimate purpose.”  This statement of his was an entirely gratuitous slap at Indiana’s statute, as these were provisions that he recognized were constitutionally permissible and was finally letting take effect

2.  In his preliminary injunction ruling, Hamilton relied almost exclusively on a statistical study of the effects of a waiting-period provision in Mississippi conducted by a sociologist at the Alan Guttmacher Institute (which engages in abortion advocacy and research).  Even after the Seventh Circuit, in a case involving a Wisconsin waiting-period provision (Karlin v. Foust, 188 F.3d 446 (1999)), concluded that the Mississippi study did not warrant invalidation of the Wisconsin provision, Judge Hamilton continued to rely on the Mississippi study in granting a permanent injunction.

In reversing Judge Hamilton’s ruling, the Seventh Circuit majority, in an opinion by Judge Easterbrook (305 F.3d 684 (2002)), noted that the Mississippi study

did not ask how Mississippi compares with Indiana. The study does not include a regression based on the sorts of variables, such as urbanization, income, average distance to an abortion clinic, average price of abortion, and so on, that might enable conclusions drawn from Mississippi to be extrapolated with confidence to other states. 

As the Seventh Circuit majority also explained, nothing in the Mississippi study spoke to the critical question that Hamilton entirely overlooked—whether any decline in abortions resulting from a provision generally requiring two visits to an abortion clinic occurred among those women who were “on the fence between ending the pregnancy and carrying the pregnancy to term, so that even a modest cost tips the scales.”  (Supreme Court candidate Diane Wood dissented.)

Hamilton’s dogged and excessive reliance on the Alan Guttmacher study suggests that Hamilton was indulging his own views on abortion policy.

Seventh Circuit Nominee David Hamilton—Substantive Due Process


I’ve previously outlined (here, here, here, and here) some basic facts that cut against efforts to portray President Obama’s first appellate nominee, district judge David F. Hamilton, as a “moderate.”  Before Hamilton’s nomination is reported out of committee, I’d just like to flesh out a couple of points.  In this post, I’ll detail Hamilton’s reckless use of “substantive due process” to suppress evidence of violation of drug laws. 

In United States v. McCotry (2006), Hamilton invoked “substantive due process” to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant, Tamica Hollingsworth, charged with possessing marijuana and knowingly making her apartment available for the unlawful storage of controlled substances. 

Here are the relevant facts:  Hollingsworth’s nine-year-old daughter “T.H.” was called to the principal’s office of her public school after frequent tardiness and classroom reprimands for disruptive behavior.  The principal told T.H. that if the school couldn’t reach Hollingsworth, it would need to send a police officer (the school resource officer) to do a home visit.  T.H. replied that the officer couldn’t visit her home until her mother and “J” had a chance to “get their stuff out” and indicated (in the principal’s account) that there were “things in the house that her mother did not want anybody to see.”  The officer later arranged for the school social worker to question T.H. further.  Assessing conflicting evidence, Judge Hamilton determined that this further questioning was for the sole purpose of pursuing a criminal investigation of Hollingsworth.  In the course of that questioning, T.H. told the social worker that there was marijuana in her home and that her mother and “J” went on drug runs.  This information was used to obtain a search warrant, and marijuana and crack cocaine were found in Hollingsworth’s apartment.

As Hamilton put it:

the question presented here is whether the police may interrogate a young elementary school child at a public school (using a school personnel member as the interrogator) for the sole purpose of a criminal investigation of the child’s parent and not for any purpose relating to child protection, such as in cases of suspected abuse or neglect.

Relying heavily on a dissent by then-Judge Anthony Kennedy from an en banc Ninth Circuit ruling, Hamilton set forth “the combination of factors [that] persuades the court that the police stepped over the line protecting the family from government intrusion” and “shock[ed] the conscience”:

T.H.’s young age, the lack of prior indications of criminal activity by her mother, the ambiguous quality of the statement triggering the investigation, the use of T.H.’s presence in a public school (under compulsion of law) to investigate her mother, the use of a school social worker to carry out what amounted to custodial interrogation for purposes of criminal investigation, and (in the absence of any child protective purpose, such as investigation of child abuse or neglect) the officials’ efforts to conceal this interrogation.

The Seventh Circuit unanimously reversed (in United States v. Hollingsworth, 495 F.3d 795 (2007)).  Acknowledging the Supreme Court’s longstanding recognition of the “constitutional importance of a parent’s right to bring up his or her child as he sees fit,” the Seventh Circuit explained that a governmental intrusion into the protected sphere of familial relations violates substantive due process “only if ‘the Due Process Clause would not countenance it even were it accompanied by full procedural protection.’”  The panel determined that “the government’s interest in speaking with T.H. was compelling because it had at least some reason to believe that Hollingsworth was engaged in illegal activity” and that school officials’ intrusion on the family relationship was “minimal”:  “In fact, we question whether such a de minimis intrusion could ever ‘shock the conscience.’”

Just a few quick comments:

1.  The grab bag of factors that Hamilton relied on to find that the questioning “shocked the conscience” had nothing to do with the evidence that resulted from the search.  His ruling would require the same result if the search had uncovered, say, explosive material to be used in a terrorist bombing or 10,000 pounds of cocaine.  And his ruling would have the effect of preventing similar questioning from occurring in such cases.

2.  Those of us who care deeply about protecting the family from improper government intrusion shouldn’t imagine that willy-nilly rulings by judges imposing their own subjective impressions of what is acceptable and what is not is a proper or desirable way to achieve that goal.

3.  A judge who will invoke substantive due process in a case like this is a threat to invoke it whenever he doesn’t like the result that neutral application of the laws yields.  The fact that Hamilton not only got it wrong in the first place but continues not to recognize his error (see Hamilton’s Response to Sessions #2.d) is very troubling.

This Day in Liberal Judicial Activism—May 15


2008The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution.  Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences.  Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.”  In a sense, yes—when those provisions are faithfully and properly interpreted and applied.  But not when judicial activists like George abuse them.

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage.  Perhaps plotting its next usurpation, the California supreme court is now considering various challenges to the validity and effect of Proposition 8.

Seventh Circuit Nominee David Hamilton—Written Answers


In the aftermath of his confirmation hearing two weeks ago, Seventh Circuit nominee David Hamilton (whose record I’ve previously outlined here, here, here, and here) has provided answers to written questions submitted by various Republican senators.  I highlight here several of his responses:

1.  On the Obama “empathy” standard:  Hamilton tries to reconcile Obama’s standard with the judicial oath of office (28 U.S.C. § 453:  to “administer justice without respect to persons, and to do equal right to the poor and to the rich, and … impartially discharge and perform all the duties” of the office) by stating that a “judge needs to empathize with all parties in the case—plaintiff and defendant, crime victim and accused defendant—so that the judge can better understand how the parties came to be before the court and how legal rules affect those parties and others in similar situations.”  (Response to Coburn #1 (emphasis added).)

2.  On the “living Constitution”:  I’m pleased to see that Hamilton maintains that he rejects the notion that the Constitution is “a ‘living’ document that is constantly evolving.”  As he puts it, “the Constitution is a written text that does not evolve other than through the amendment process.”  (Response to Grassley #2.iv.)

3.  On Supreme Court candidate Diane Wood’s dissent in Hinrichs v. Speaker of the House:  The Seventh Circuit majority, reversing Hamilton, ruled that plaintiffs did not have standing as taxpayers to challenge the Indiana House of Representatives’ practice of legislative prayer.  Hamilton evidently thinks that the majority got it right and that Wood got it wrong.  Unlike Wood, Hamilton has “no disagreement” with the majority’s ruling.  Unlike Wood, Hamilton states that the Supreme Court’s “intervening decision” (intervening, that is, between the time of his ruling and the time of the Seventh Circuit’s review) in Hein v. Freedom from Religion Foundation “sharply curtailed reliance on taxpayer standing in Establishment Clause cases.”  (Response to Sessions #2.c.)

4.  On the Supreme Court’s use of international law in Roper v. Simmons (see This Day for March 1, 2005):  I’m pleased to see that Hamilton states that he believes that it was not appropriate for the majority to rely, as it did, on “the overwhelming weight of international opinion against the juvenile death penalty.”  (Response to Sessions #9.b.)

Moreno’s Activism


Sources close to President Obama are floating six names for his Supreme Court short list. One recent addition to the trial balloon game is Carlos Moreno, an associate justice on the Supreme Court of California.  Unlike some proposed nominees who have little if any experience from which to assess their judicial philosophy, Moreno’s views are clear: he is a hard Left judicial activist.  

A brief glimpse into his recent record is all that is necessary to reach this conclusion.  Moreno signed on to what I previously dubbed the Mona Lisa of activist opinions last summer when he joined three other members of his court in creating a right to same sex marriage from whole cloth, a decision that was soundly rejected at the ballot box when California voters adopted Proposition 8, a constitutional amendment that reverses Moreno’s hubristic act of judicial legislation.  The floating of Moreno seems to confirm my previous prediction that Obama is not only looking to appoint activists, but activists who are likely to carry out policies like promoting gay marriage which his actions support, but for political reasons, his words do not.

Moreno’s gay marriage decision should be upsetting to those who oppose as well as those who support gay marriage—at least anyone in either of those camps who cares what the law actually says.  The case was a raw assertion of Moreno and his colleagues’ policy preferences which, while lacking a sufficient foundation in law, were nonetheless implemented to displace the clearly established will of the voters.  I fear that we are seeing another example of Obama’s empathy trumping law.

Koh vs. Obama Administration on Indefinite Detention?


The Wall Street Journal reports that the Obama administration “is weighing plans to detain some terror suspects on U.S. soil — indefinitely and without trial — as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay, Cuba.”

But State Department legal adviser nominee Harold Koh opposes indefinite detention of enemy combatants:  “The U.S. government should either charge the detainees criminally in civilian courts or find other countries who will accept them for criminal trial.”  (Koh, Restoring America’s Human Rights Reputation,” 40 Corn. Int’l L. J. 635, 655 (2007).)

I’m not sure at this point whether Koh’s opposition rests only on “human rights” policy grounds or also on legal grounds.  Either way, this is yet another matter—see also military commissions and use of military force abroad—in Koh’s radical transnationalist record that raises the question why President Obama would want Koh to serve as the State Department’s top lawyer.

[Cross-posted on The Corner]

SCOTUS Scuttlebutt


At a meeting of some conservatives with several senators Wednesday, one participant asked: “Would a Kagan confirmation process take longer because of the document dump that would be required?” The reason for the question? “All of her memos and files would have to be pulled from the Clinton presidential records, which are not yet public.”

I see that a don’t-give-to-the-NRSC Facebook group or two has sprung up in the wake of the Crist endorsement in Florida, but a report came out of the same meeting that the Supreme Court has become a fundraising aide for both the NRSC and conservative activist groups. The latter are gearing up to highlight facts of record that the press has heretofore left out of most coverage of potential nominees.

The good news is: Conservatives don’t sound like they will sit out this fight. The president isn’t going to nominate anyone these groups would pick, but the activism of conservatives could keep the most radical from the high Court, or, at minimum, highlight the judiciary in a clear and present way. And many out there care about judicial restraint vs. judicial activism.

This could be a real issue in 2010. And 12.

This Day in Liberal Judicial Activism—May 14


1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court.  Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959.  Before that, he had been in-house counsel for the Mayo Clinic.  His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor.  Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Week for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.     

Senator Sessions Sets the Standard


In today’s Washington Post, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, explains how Senate Republicans will approach President Obama’s pending Supreme Court nomination.

The Republicans’ role in the Senate’s exercise of its constitutional power to advise and consent will be to see that fair and rigorous hearings determine whether the president has selected a nominee who respects the Constitution or one who intends to rewrite it. The consequences of this question cannot be overstated. Only five justices are needed to declare the meaning of the Constitution, thereby potentially dictating huge changes to our nation’s economy, culture and law. With such high stakes, the American people rightly expect greatness in our highest jurists — the greatness personified by John Marshall and Felix Frankfurter and anticipated from John Roberts.

The Senate has a duty to determine whether the president’s nominee meets these expectations. Senate hearings represent the public’s best opportunity to participate in the process and learn about a nominee’s qualifications. Accordingly, senators must ask tough, substantive questions to determine if the individual possesses four characteristics that great justices share.

The four characteristics Senator Sessions identifies are impartiality, commitment to the rule of law, integrity, and legal expertise and judicial temperament.

If his recent performance is any guide, Senator Sessions takes this obligation to question nominees quite seriously.  As BLT reported, he pressed Second Circuit nominee Gerald Lynch quite extensively at his recent confirmation hearing.

Judge Sotomayor, By the Numbers


My Volokh co-blogger Eric Posner has an interesting post evaluating Judge Sonia Sotomayor’s judicial performance through the methodology used in a recent study of appellate judges.

Senate Committee Vote on Koh


By a vote of 12 to 5, the Senate Foreign Relations Committee yesterday favorably reported to the full Senate the atrocious nomination of Harold Koh to be the State Department’s top lawyer.  Richard Lugar, who showed no interest at Koh’s hearing in exploring Koh’s views, was the only Republican to vote for Koh.  Senators Corker, Isakson, DeMint, Barrasso, and Wicker all voted against.  Senator Risch showed up too late to vote but, I’m told, would have voted against.

It will be interesting to see how many, if any, other Republicans support Koh in the floor vote.

This Day in Liberal Judicial Activism—May 13


1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution.  Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.”  But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse:  Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers.  While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award.  In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention.  So much for the fact and appearance of impartiality.   

Emily Bazelon’s Feeble Defense of Elena Kagan


In the same piece in which she misdefends Diane Wood, Emily Bazelon has these odd observations (emphasis added) about Supreme Court candidate Elena Kagan’s vehement opposition to military recruiting on the Harvard law school campus: 

When Obama nominated Elena Kagan as solicitor general in January, some Republicans opposed her based on Kagan’s support, as Harvard Law School dean, for a suit that sought to keep military recruiters off campus because of the military’s “don’t ask, don’t tell” policy. Kagan did say she backed the suit—but her law school didn’t join it. She was confirmed to her current post by a vote of 61-31. How would the Republicans who voted for her to be solicitor general explain a no vote for her now?

Kagan did much more than “say she backed the suit.”  In a remarkable e-mail that she sent to the entire Harvard law school community, Kagan stated, “I abhor the military’s discriminatory recruitment policy,” and she condemned it as “a profound wrong—a moral injustice of the first order.”  (Of course, what Kagan called the “military’s … policy” was required by the law that was approved in 1993 by a Democratic-controlled Congress and by President Clinton.) 

Among her other actions in opposition to the Solomon Amendment—the law denying federal funding to universities discriminating against military recruiters—Kagan signed her name to a Supreme Court amicus brief in the litigation (Rumsfeld v. FAIR) that offered a highly implausible reading of the Solomon Amendment that would have rendered it, as Chief Justice Roberts’s opinion put it, “largely meaningless.”  The Chief Justice’s opinion rejecting Kagan’s reading (and the other challenges to the Solomon Amendment) was unanimous. 

Republicans who voted for Kagan as solicitor general can easily explain that they accorded deference to President Obama’s choice of who would occupy an executive-branch position (and a subcabinet-level position at that).  That vote has no logical bearing—much less any sort of estoppel effect—on how they should regard a nomination of Kagan to a lifetime position on the Supreme Court. 

Kagan’s extremist rhetoric on the Solomon Amendment and on the Don’t Ask, Don’t Tell law signal that she is a serious threat to vote to invent a constitutional right to same-sex marriage.  That threat alone—including the strong possibility that Kagan’s vote would be the decisive fifth vote—ought to provide ample reason for senators, both Republicans and supposed moderate Democrats, to oppose her nomination (irrespective where they stand on the discrete policy question whether marriage laws should be revised).

Re: Today’s Fun


Ramesh asks, didn’t E.J. Dionne (on whom I commented here) “have a point about the Voting Rights Act? (‘Is it not a form of legislating from the bench for the court and not Congress to decide whether a law is outdated?’)”

My answer: yes.  “Outdated,” so far as I know, is not a category of constitutional analysis.  (That is not, perhaps, the last word about the case in question, but it is not nothing.)  So I will say to E.J. Dionne, let us by all means have a real debate about judicial activism, which is not exclusively the practice of the left.  But let us not begin by forbidding one side in the debate to complain about the other side’s proclivities to it!

Emily Bazelon’s Hilarious Defense of Diane Wood


My Part 1 post on Supreme Court candidate Diane Wood exposed her shenanigans in NOW v. Scheidler.  Slate’s Emily Bazelon says that “if you drill down through the layers of litigation, Scheidler doesn’t make for much of a Republican sound bite.” But Bazelon hilariously misunderstands the layers of litigation that she purports to explain.

Bazelon falsely asserts:

In her first crack at the case, in 1992, Wood threw it out. As part of a three-judge panel, she ruled that RICO didn’t apply because NOW and the other plaintiffs hadn’t shown that the alleged acts of racketeering were “economically motivated,” as she thought the statute required.

But Wood wasn’t part of that panel.  She wasn’t even a judge then.  She was appointed to the Seventh Circuit by President Clinton in 1995.  Before then, she was an academic.  So Bazelon is defending Wood by attributing to her an opinion that she had no part in.

Bazelon also entirely ignores Wood’s shenanigans in defying the Supreme Court’s mandate after the Court, in 2003, reversed her 2001 ruling by an 8-1 vote.  That’s the primary focus of my criticism of Wood’s performance in Scheidler.  The Supreme Court proceeded to reverse her again, this time 8-0. 

Update:  Without acknowledging her error, Bazelon has now tweaked her language so that it merely leaves the false impression that Wood was involved in the 1992 ruling.  Further update:  Bazelon now acknowledges her error about the 1992 ruling. 

re: Today’s Fun


Matt, maybe I just have a soft spot for Dionne, but didn’t he have a point about the Voting Rights Act? (“Is it not a form of legislating from the bench for the court and not Congress to decide whether a law is outdated?”) 

The Evolution of Doug Kmiec


Stuart Buck compares Douglas Kmiec’s views on “originalism,” past and present.  The change is striking — and it’s all quite recent.  It wasn’t that long ago that Kmiec was imploring me (and others) to join Team Romney, and a commitment to constitutionalist judicial nominees was a major part of the pitch. 

Obama’s “Empathy” Standard


Here’s the full text of then-Senator Obama’s statement explaining his decision to vote against John Roberts’s nomination to be Chief Justice.  The key excerpt (emphasis added):

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.


In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

And here’s a transcript of Obama’s July 2007 speech to the Planned Parenthood Action Fund.  The key excerpt (emphasis added):

Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsb[u]rg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got 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 poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

Anyone seeking to defend Obama’s “empathy” standard needs to defend these statements. 

I have previously addressed (see, for example, here and here) Obama’s ridiculous canard, evidently designed to minimize the impact that his lawless approach would have, that Justice Scalia and Justice Ginsburg are going to agree 95% of the time.

[Cross-posted on The Corner]

More on Thomas Perez


Thomas Perez is President Obama’s pick to head the Justice Department’s civil rights division, and his nomination is pending before the Senate Judiciary Committee. Among the documents he has turned over to the Committee is a press release in which five years ago, as a Montgomery County (Maryland) councilmember, he took a position on firefighters and racial “diversity” that is eerily like that being taken now by the city of New Haven before the Supreme Court. Below is the press release, in full, with my annotations in italics.

Montgomery County Council

For Immediate Release         June 29, 2004


Contact: Patrick Lacefield 240-777-7939 or Amanda Shumaker 240-777-7815




Councilmember Tom Perez today proposed a special appropriation of $200,000 to promote a more diverse workforce for the Fire and Rescue Service, responding to the most recent recruit class, in which only two out of 48 recruits are non-white.

Likewise, the complaint in New Haven is that the 20 promotions involved were 19 whites and one Latino.

“We have made great strides in attracting minorities to the County within the last 30 years,” said Councilmember Perez. “We need a workforce in the Department of Fire and Rescue Services that reflects the diversity of the County.”

So, if a county in Idaho has no African Americans, it should strive to make sure it hires no blacks?  Why is the goal not simply to hire the best possible firefighters?  (And, as someone who had already worked for many years in the civil rights division, Perez should know that, for purposes of determining whether there might be statistical evidence of hiring discrimination, what matters is not the racial makeup of the county, but the racial makeup of the applicant pool or, perhaps, the potential applicant pool.)

The latest statistics on the most recent class recruit [sic] represent the lowest minority recruitment since the county began keeping such records. Councilmember Perez called for an investigation into the written firefighter aptitude test to determine if the test gives any unfair advantage.

Likewise, the city’s post hoc rationalization in New Haven is that there was something wrong with the test if it led to politically incorrect results.

“These statistics are unacceptable,” said Perez. “But I have confidence that we can get back up to the original number of minorities in the Department, and develop a comprehensive plan to recruit diversely.”

Proponents of quotas always deny that they favor, uh, quotas.  But when the predetermined outcome is to “get back up to the original number of minorities,” how can that be characterized as anything else?

“I have worked closely with Fire and Rescue Chief Carr and several other leaders on this issue,” he said. “We have formed a partnership and the commitment from the department is clearly there.”

Didn’t “progressives” at one time favor civil service exams to ensure that political types didn’t rig the government’s hiring and promotion decisions?

“When somebody is experiencing a heart attack, we can’t ask them [sic] to hold on while we go get an interpreter. The need for minorities is crucial to the function of the rescue aspect of the Fire and Rescue Department.”# # #

If there is a need for multilingual fire and rescue employees, then hire some multilingual fire and rescue employees.  But do not assume that because someone is, say, Latino then he must be able to speak Spanish, and that if someone is non-Latino then he must speak only English.  Such an assumption might even be called “stereotyping.”

By the way, the Center for Equal Opportunity’s Linda Chavez, Powerline’s Paul Mirengoff, and I have already criticized Perez’s support for racial preferences in medical-school admissions, and he has also announced his eagerness “to examine whether a similar case could be made in other professions.” I guess that includes firefighting. 

It’s interesting that Perez should single out doctors and firefighters as the two jobs where he thinks it’s important to make sure that there is a politically correct racial and ethnic mix. Would the average American — when the scalpel is hovering above him, or her house is about to burn down — care about anything but the doctor’s and firefighter’s ability?

Another Misguided Defense of Obama’s “Empathy” Standard


Like the Washington Post’s Ruth Marcus last week, Slate’s Dahlia Lithwick offers a misguided defense of President Obama’s so-called “empathy” standard for judges—and a misguided attack on critics of Obama’s standard.

Even more so than Marcus, Lithwick obscures the various statements by Obama for which “empathy” has come to stand as a shorthand summary (even if a shorthand that is overly favorable to Obama).  As I discussed in this essay from over a year ago:

In explaining his vote against [Chief Justice] Roberts, Obama opined that deciding the “truly difficult” cases requires resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In short, “the critical ingredient is supplied by what is in the judge’s heart.” No clearer prescription for lawless judicial activism is possible.

Indeed, in setting forth the sort of judges he would appoint, Obama has explicitly declared: “We need somebody who’s got 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 poor or African-American or gay or disabled or old–and that’s the criterion by which I’ll be selecting my judges.” So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.

These were not off-the-cuff remarks by Obama.  They were part of his carefully prepared statements.

From Lithwick’s account, the reader would learn only of “Obama’s repeated claim that he seeks ‘empathy’ in a replacement for Justice Souter.”  Lithwick asserts:

[Empathy] doesn’t mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.

But Obama’s own language shows that he is seeking judges who will favor particular classes of people and that he does believe that resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy” can and should be outcome-determinative in some cases—what he calls the “truly difficult” cases but what one reasonably suspects are any cases of sufficient importance in which application of traditional legal analysis doesn’t yield the result that Obama really wants.

One lesson that critics of the Obama standard should draw from Lithwick’s attack is that they should be careful to go beyond using “empathy” as a shorthand summary and should look for opportunities to quote more fully Obama’s indefensible statements on judging.

This Day in Liberal Judicial Activism—May 12


2005—Federal district judge Joseph F. Bataillon, appointed by—surprise!—President Clinton, rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause.  One year later, a unanimous Eighth Circuit panel reverses all of these rulings.  

Today’s Fun at the Washington Post


The most reassuring news about the coming nomination of a new Supreme Court justice to succeed David Souter came in this morning’s Washington Post, which reported that Vice President Joe Biden is “regularly consulting with the president” and providing his “insights on the process.”  As a longtime member and sometime chairman of the Senate Judiciary Committee, Biden was involved in more than three decades of hearings, and chaired the proceedings for six confirmations.  He also made it painfully clear over the years that he is quite incapable of thinking of the Supreme Court in other-than-political terms, and is hopelessly at sea on fundamental questions of constitutional law.  (If you consult the memoirs of Robert Bork and Clarence Thomas, you’ll also find he was ethically challenged too.)  If the White House is taking his advice, it is mistaking his “experience” for wisdom.  As a bonus, the Post has this circumlocution for Biden’s pattern of public gaffes: “his enthusiasm and plain-spoken candor are simultaneously his greatest political strengths and his greatest weaknesses.”  So it’s “enthusiasm and plain-spoken candor,” is it?  How about “devotion to scraping the empty barrel of his mind at the slightest provocation”?

Over on the op-ed page, meanwhile, the always fair-minded E.J. Dionne dares the Republicans to an “honest brawl” over the Supreme Court, confident that Democrats can trounce them.  As far as I can tell, here are Dionne’s ground rules:

–Republicans aren’t allowed to talk about “judicial philosophy” without admitting that what they are really interested in is “ideology.”

–Democrats, on the other hand, are entitled to talk about judicial philosophy without having to defend their motives.

–No Republican “slogans” are allowed–”notably ‘judicial activism,’ ‘legislating from the bench,’ and ’strict constructionism.’”

–Oh, yes, Dionne suddenly remembers that practically no one uses that last one any more–so no talk of “originalism” either.

–Democrats, on the other hand, are entitled to point out that “judicial activism is far more the habit of conservative justices than liberals.”

–And Democrats are entitled to point out that Republican opposition to judicial activism started with “segregationists who opposed judicial interventionism on behalf of the rights of African Americans.”

–But Republicans are not permitted to point out that those segregationists were, to a man, Democrats.

Okay, everyone ready for a fair fight?

What Justice Sees and Doesn’t See


In case you missed it, here is Jeff Jacoby’s excellent column from yesterday’s Boston Globe, on the antithesis between “judicial empathy” and justice.

Second Circuit Nominee Gerard E. Lynch


With tomorrow’s confirmation hearing for Second Circuit nominee Gerard E. Lynch, Senate Judiciary Committee chairman Patrick Leahy continues his race to rubberstamp President Obama’s nominees before anyone has time to review their records.  For Obama’s three appellate nominees, the time from nomination to hearing will have been 15 days for David Hamilton’s first sham hearing, 43 days for his second hearing, 27 days for Andre Davis’s hearing, and 41 days for Lynch’s hearing.  The shortness of these time periods is exacerbated by the fact that each of these nominees has years of rulings as a district-court judge.


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.


Some quick comments on a hasty review of Lynch’s academic writings on the role of the courts:


Lynch, a former law clerk to Justice Brennan, is a full-fledged defender of Brennan’s judicial approach.  Lynch observed with regret in 1997:


The notion that Justice Brennan’s judicial philosophy was one that illegitimately imposed his own values on the country is very widespread, in this more conservative age, among legal scholars as well as among politicians and the public.  

Lynch contends that “it is an oversimplification to speak of a judge’s imposing her ‘own’ values.”  Rather, “[w]hen the going gets tough—precisely because textual or precedential analysis doesn’t yield clear signals—the judge is left, I’m afraid, with his own ability to articulate, as persuasively as possible, his best understanding of the true meaning of the broad value to which the Constitution requires adherence.”  In the end, Lynch explains, Brennan’s “interpretations of those values were the unique product of his own experience, his own intellect, and his own generous spirit.”  (Lynch, “William J. Brennan, Jr., American,” 97 Colum. L. Rev. 1603, 1604, 1606-1607, 1608 (1997).)

So, even if one sets aside the farfetched notion that Brennan’s activism was limited to cases where traditional legal analysis wouldn’t yield a clear answer, Lynch’s defense of Brennan amounts to the claim that Brennan, rather than imposing his own values, was imposing his own highly subjective interpretations of the Constitution’s broad values.  That strikes me more as wordplay than as a defense of Brennanism.  Nor does Lynch explain how it is that, when traditional legal analysis doesn’t yield a clear answer, judges have any warrant to resort to their own highly contestable “interpretations” to override a democratic enactment. 

In another of his articles (reviewing Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment), Lynch contends that “any acceptable interpretation of the Constitution must bear a reasonable relation to the text.”  Lynch maintains that this “reasonable relation” test “is no trivial restriction” on judicial inventiveness since “[s]ome texts are not particularly malleable.”  But the fact that the only example he musters of a text that is “not particularly malleable” is the provision setting forth a four-year presidential term clearly signals how much he thinks is fairly up for grabs—and how weak the “reasonable relation” test is.  (Lynch, Book Review, 63 Corn. L. Rev. 1091, 1096 & n. 24 (1978).)

Supreme Court Candidate Diane P. Wood—Part 4


From my review of what I acknowledge is merely a small sample of her opinions, I can’t say that I’m impressed by the quality of Judge Wood’s judicial craftsmanship.  In addition to her extraordinary defiance of the Supreme Court’s mandate in National Organization for Women v. Scheidler and her successive 8-1 and 8-0 reversals (see Part 1) and her sloppy separation-of-powers analysis in French v. Duckworth (see Part 3), consider Wood’s dissenting opinion in Hinrichs v. Speaker of the House, 506 F.3d 584 (7th Cir. 2007).

Under review in Hinrichs was the permanent injunction, on Establishment Clause grounds, that a district judge (David F. Hamilton, President Obama’s nominee to the Seventh Circuit, as it happens) issued against the Indiana House of Representatives’ practice of legislative prayer.  The panel majority ruled that plaintiffs did not have standing to maintain their lawsuit and, on that basis, reversed the district court’s judgment and remanded with instructions to dismiss the case for want of jurisdiction.  Wood, in dissent, disagreed with the majority’s analysis of the standing issue.

I will not probe here the merits of the competing positions taken by the majority and Wood on the question of standing to raise the Establishment Clause challenge.  Nor will I do more than note the incongruity of Wood’s celebrating the “relative harmony in which people of differing religious beliefs have joined together to form a common civil society,” when Wood herself has been vicious in misrepresenting religious beliefs that she is hostile to (see Part 2, which includes an update).  I will instead highlight an elementary defect in what Wood calls her dissent.

Wood states early in her dissent that she “would find that the plaintiffs here have standing to sue and would proceed to the merits of the case.”  But she somehow neglects to take that second step.  Once she finds that plaintiffs have standing, Wood must proceed to the merits in order to determine whether she would affirm the district court’s injunction, reverse and vacate it, modify it, or take some other action.  If she were to reverse the injunction on the merits, her opinion, rather than being a straight dissent, would be an opinion concurring in the judgment in part (in its reversal of the district court) and dissenting in part (from the remand instructions).  In other words, Wood never completed her appellate review of the district court’s order, and she thus didn’t do the work necessary to render her opinion a dissent.

It may well be that sloppiness like Wood’s is more common than I realize.  But an essential part of the judicial craft, properly exercised, is paying close attention to the particular case at hand.  For an appellate judge, that involves, among other things, resolving the issues that are necessary to the disposition of the case.

Stephen Carter Recycles


In today’s New York Times, Yale law professor Stephen L. Carter proposes that confirmation hearings on Supreme Court nominations dispense with taking testimony from the nominees themselves.  Until a little over 50 years ago, he notes, we just didn’t do this routine interrogation of prospective justices (though there were a couple of earlier instances, as he acknowledges).  Carter should be credited with consistency; he made most of these arguments four years ago when Justice Sandra Day O’Connor announced her departure.  Nothing wrong with recycling old arguments, of course, if they’re any good.  But Carter’s aren’t.

He attempts, now as then, to tar the modern practice with the taint of a racist origin by noting it really began with the “effort by determined segregationists to derail Brown v. Board of Education” in 1955.  This is a decidedly partial history.  Since the Brown opinion by Chief Justice Earl Warren was notorious for its cavalier attitude toward normally accepted categories of constitutional interpretation, it prompted searching analyses in every quarter where such things matter, including among liberal legal scholars.  Even many who applauded the outcome in Brown found it deeply unsatisfactory as an exercise in judicial review.  A cottage industry sprang up overnight in how to justify Brown more competently than the Warren Court did, and it continues to churn out new product even today.  Is it any wonder that the political branches of government began to take a deeper interest in the work of the Supreme Court than hitherto?  Carter blames it all on “Southern Democrats who in those days still largely ran the Senate,” but the practice of hearing nominees testify would not have continued if there were not a great many responsible people who value it.

Carter’s more serious argument is that the whole exercise is a waste of time:

Senators ask about the nominee’s views on a variety of cases, and the nominee respectfully declines to answer.  Then the senators ask about judicial philosophy, and the nominee dances a bit, murmurs a few plain-vanilla reassurances, then clams up.  We get no new information.

This is almost but not entirely true.  But suppose it were wholly accurate.  Carter’s solution is even worse, since he wants us to stop even attempting to get any information at all from a face-to-face encounter between senators and a nominee for the Court.  Nothing else, he asserts, is consistent with the principle of judicial independence.

Carter’s recent arguments extend the view he offered in his 1994 book The Confirmation Mess.  Here are a few choice passages from a review of that book that I found very persuasive:

If substantive inquiry is off-limits, on what basis will the President and Senate exercise their respective roles in the appointments process?  Will this limited basis prove sufficient to evaluate and determine whether a nominee (or would-be nominee) should sit on the Court?  Will an inquiry conducted on this basis appropriately educate and engage the public as to the Court’s decisions? . . .

[T]he bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country, and, correlatively, the effect the nominee will have on the Court’s decisions. . . .

The kind of inquiry that would contribute most to understanding and evaluating a nomination is the kind Carter would forbid: discussion, first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues. . . . [This requires an] insistence on seeing how theory works in practice by evoking a nominee’s comments on particular issues–involving privacy rights, free speech, race and gender discrimination, and so forth–that the Court regularly faces. . . .

As for “judicial independence,” Carter speaks as though the term were self-defining–and as though it meant that in appointing judges to a court, the President and Senate must refrain from considering what they will do once they arrive there.  But this would be an odd kind of decision to leave in the hands of elected officials: far better, if such subjects were forbidden, to allow judges to name their own successors–or to cede the appointment power to some ABA committee.  In fact, the placement of this decision in the political branches says something about its nature–says something, in particular, about its connection to the real-world consequences of judicial behavior.  Indeed, contrary to Carter’s view, the President and Senate themselves have a constitutional obligation to consider how an individual, as a judge, will read the Constitution: that is one part of what it means to preserve and protect the founding instrument.  The value of judicial independence does not command otherwise, however much Carter tries to convert this concept into a thought-suppressing mantra.

Who wrote this devastating takedown of Stephen Carter’s arguments, now reappearing yet again in the Times?  Why, it was now-Solicitor General Elena Kagan, reviewing Carter’s book in the University of Chicago Law Review in 1995.  Senators should take Kagan’s advice, not Carter’s, when they prepare for the hearings on President Obama’s nominee to succeed Justice Souter.

Oh, one more thing.  Carter recycles a (putative) Lincoln quotation on appointing Supreme Court justices: “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”  As I explained four years ago here at NRO, the provenance of this Lincoln quotation is deeply suspect.  But assume Lincoln actually said it.  Consider the next sentence he is supposed to have said: “Therefore we must take a man whose opinions are known.”

As Elena Kagan argued 14 years ago, there are ways to acquire knowledge of someone’s opinions without “ask[ing] . . .what he will do” in a case actually pending or on the near horizon.  Lincoln knew this too.  Stephen Carter would rather obfuscate this matter than clarify it–and to make clarification somehow off limits.

This Day in Liberal Judicial Activism—May 10


2009—Happy Mother’s Day!  No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day.  Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”  In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex.  (See here for relevant excerpts from the report.)

2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is not as fortunate as Kavanaugh.  In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified”.   After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.  

Koh vs. Obama Administration on Military Commissions


Today’s Washington Post reports:  “The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.” 

But State Department legal adviser nominee Harold Koh has maintained that no set of modifications to the rules governing military commissions can “dispel[] the fatal global perception of unfairness” that he believes they suffer from:   

Even if, through tinkering, the Defense Department’s regulations could ensure that military commissions will operate more fairly in fact, they will never be perceived as fair by those skeptical of their political purpose, namely, the very Muslim nations whose continuing support the United States needs to maintain its durable coalition against terrorism.

(Koh, “The Case Against Military Commissions,” 96 Am. J. Int’l L. 337, 342 (2002).)

Is Koh ready and willing to make the case for a revised system of military commissions?  If not, why would President Obama have him serve as the State Department’s top lawyer?  [Update:  Andy McCarthy explains that Obama’s revisions are trivial.]

(By the way, my primary posts on the Koh nomination are collected, and organized for easy reading, at 

[Cross-posted on The Corner]

President Have-It-Both-Ways


As Robert Alt notes below, apropos of President Obama’s preference for courts doing his left-wing dirty work for him, he “has said that he is against gay marriage, but he also opposed California’s Proposition 8, which was passed to undo the activist gay marriage opinion by the California Supreme Court.”

Even the president’s most fervent admirers are beginning to notice his fence-straddling.  Here’s Eugene Robinson in today’s Washington Post:

Does Obama’s stance in favor of repeal [of the 1996 Defense of Marriage Act] mean that he believes the federal government should recognize same-sex marriages? Does he also believe that, say, the state of Alabama should recognize a gay marriage performed in Iowa? If so, what is the practical difference between this position and just saying in plain language that gay marriages ought to be legal and recognized in all 50 states?

Good question.  As I explained in the first two weeks of this presidency, it is impossible to avoid the conclusion that Barack Obama is a backer of gay marriage who is afraid to say so.  Robinson exhorts him to be brave, concluding his column thus:

I’m not being unrealistic. I know that public acceptance of homosexuality in this country is still far from universal. But attitudes have changed dramatically — more than enough for a popular, progressive president to speak loudly and clearly about a matter of fundamental human and civil rights.

Robinson should get out more.  Gay marriage remains deeply unpopular with a strong majority of Americans.  And if the president came out for it, both he and it would surely decline in popularity.  That’s why he winks at his supporters when he demurs on the subject.  Let Justice Souter’s successor lead the charge.  Then, as Robert rightly says, Obama can claim “the issue has become ‘constitutionalized,’” and that we must all live with the bland pronouncement by the Supreme Court of some ginned-up imitation of a neutral legal principle.  Somehow I think that will prove in the end to be good enough even for Eugene Robinson, who need only be patient.  It’s up to the supporters of marriage–marriage with no adjectives, as Maggie Gallagher reminds us–to see to it that Robinson’s patience is not rewarded.

Earth to Comrade Commander Guy: Enjoy Your Fantasy World


I suppose that I should take it as a backhanded compliment that various folks on the Left seem to have developed a sudden interest in smearing me, though I confess that I have a modest preference for the old-fashioned straightforward compliment.  But at least the feebleness of the attacks is amusing.

Take this fellow who calls himself Comrade Commander Guy (and who thus signals his tenuous grasp of reality).  Comrade Commander Guy alleges that I’m responsible for the “lame canard … that Harold Koh will end English and American Common Law and replace it with Sharia Law.”  Never mind that I promptly and specifically repudiated the sharia allegation as soon as I learned of it.

Comrade Commander Guy also faults me for “cook[ing] up” a “conspiracy theor[y]” that Justice “Ginsberg [sic] will end Mother’s Day.”  Well, I’ll acknowledge that I have called attention to the fact, documented in point 5 here, that Ginsburg in 1974 recommended this change to federal law:

Replacing “Mother’s Day” and “Father’s Day” with a “Parents’ Day” should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.

Comrade Commander Guy evidently doesn’t recognize the difference between a fact and a conspiracy theory.

Comrade Commander Guy also links to a post of his from two days ago that claims that I “ma[d]e up” stuff (his noun is cruder) about Ginsburg.  He links to this May 2005 post of mine, which cites the source for the charges.  In supposed refutation of my charges, Comrade Commander Guy links to a Slate article that contests a separate charge—one that did not appear in my May 2005 post but one (on lowering the age of consent) that I did later add, temporarily, to my Ginsburg bill of particulars.  I added that charge after I discovered that law professor Eugene Volokh had established the intermediate links that apparently supported it.  But as soon as Volokh discovered that Ginsburg’s own miscitation had confused him, I withdrew the charge and publicly apologized to Ginsburg for “my misunderstanding of what her report apparently meant to recommend.” 

As regular readers know, far from “mak[ing] up” stuff, I carefully document the facts that I set forth.  Further, my consistent practice has been to acknowledge and correct the occasional—and, as I think the record will show, very rare—errors that I make.  I guess that I can only wish that those seeking to discredit me would adopt similar practices.

Will Obama Choose a More Restrained Justice to Advance His Policies? Don’t Bet on It


Stuart Taylor has an interesting column in tomorrow’s National Journal, in which he argues that President Obama has incentives to appoint a somewhat restrained Justice to replace Souter.  To get a flavor, it is worth quoting at some length:

Many hope, and many others fear, that President Obama will choose a crusading liberal activist to energize the Supreme Court’s progressive wing.

Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama’s policy); and much more.

The preceding parentheticals suggest some of the reasons I’m cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. . . .[N]ominating a crusading liberal activist could seriously jeopardize the president’s own best interests, in terms of policy as well as politics.

While I agree with what seems to be the major thrust of Taylor’s piece, namely that on numerous issues of executive power—particularly regarding the ability to effectively conduct ongoing military operations—appointing an activist would be counterproductive for the President, I am less optimistic than Taylor that this will moderate the President’s apparent proclivity toward judges with a heart for activism. 

In large measure, I am skeptical because by appointing an activist judge, Obama can seek to get the best of both worlds: he can effectuate the liberal policies, but he does not have to take political responsibility for them.  Indeed, if one looks at the policies that Taylor highlights, Obama has already tried to have it both ways.  The President has said that he is against gay marriage, but he also opposed California’s Proposition 8, which was passed to undo the activist gay marriage opinion by the California Supreme Court.  On gun rights, his campaign first said that the DC gun ban was constitutional, but backtracked in the heat of the presidential race when the Supreme Court struck down the ban (despite consistently supporting gun restrictions, and his appointment of the 2nd Amendment-challenged Eric Holder to Attorney General).  These are but two examples where Obama’s actions support the liberal policies, while his rhetoric supports the more popular and more conservative policies.

What is the solution for Obama, when his desired positions are not politically popular?  What better than to let the courts remove the issue from the democratic process by claiming the issue has become “constitutionalized.”  It is the classic liberal maneuver to accomplish the politically unpopular without having to accept political responsibility.  And how better to do this than to promote the appointment of activist judges by issuing contradictory statements about seeking judges who respect our traditions and the rule of law, while somehow at the same time making decisions based upon their personal affinity for the parties in front of them.  Ultimately, something has to give, and for Obama, it seems clear that what will give in this dichotomy is the rule of law. 

And so, will Obama appoint a restrained Justice so that the policies that he has supported in words rather than deeds will be maintained?  I wouldn’t bet on it.

This Day in Liberal Judicial Activism—May 8


2006—When left-wing activist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating.  Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”.  Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36.  (See here for a fuller account.)     

Greenburg’s Comments on the White House’s Short List


Jan Crawford Greenburg of ABC News offers some interesting insights from “sources close to the process” on who’s on the White House’s short list for the Supreme Court nomination and how the process may unfold.  Some excerpts:

The White House has formalized its short list of Supreme Court contenders and asked six prospects to provide personal background information….

The leading contenders on the short list: federal appeals court Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan….

No clear favorite has emerged, but the pick has prompted an internal struggle between legal and political officials within the administration, sources say.

Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an historic pick as the Court’s first Hispanic justice.…

Legal officials in the Administration want Obama to tap a candidate who would be a more obvious force on the Court, bringing both intellectual prowess and a proven ability to build coalitions. They favor either Kagan or Wood—prospects who could be considered judicial rock stars [????] capable of going toe to toe with Scalia and Roberts.