Mirengoff on Johnsen


In today’s Washington Times, Powerline’s Paul Mirengoff has some interesting thoughts on OLC nominee Dawn Johnsen.

Mea Maxima Culpa


The other day I read Robert Alt’s New York Post piece on how much worse we could do than Justice Souter, and my gaze fixed on these lines:

In the area of lawsuit abuse, Justice Souter provided the fifth vote just last term in a majority opinion in the Exxon case, which limited excessive punitive damages under maritime common law. Punitive damages are a favorite weapon of trial lawyers, who greeted Souter’s opinion with some disdain.

Like the old warhorse to the sound of the bugle, I rose to say something here about Souter’s willingness to limit damages under the due process clause.  But my memory of the Exxon case was too vague and my attention too careless, for “under maritime common law” is quite a different thing.  So when I wrote, “unlike Robert, I cannot applaud” Souter’s penchant for finding due process limits on punitive damages, the offending words “unlike Robert” justifiably set Robert’s teeth on edge.  He justly upbraided me, and I responded to him too snippily.  The truth is that, writing quickly and carelessly, I drew an unwarranted inference about Robert Alt’s views, and for that I apologize to him.  Better late than never, I hope.  And for the sake of what passes for posterity on the web, my two posts from earlier this week will now carry links to this one.

Only an Idiot or Andrew Sullivan …


Pardon me for finding this very funny:

Yesterday some fellow calling himself Anonymous Liberal, in the midst of an incoherent post, accused me of being “essentially a legal hitman” who “pores over [a nominee’s] record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist.”  Given that the fellow offered zero evidence in support of his charge—not a single alleged incident of “some trivial fact [that I] distorted and [took] totally out of context”—I figured that I’d just ignore him, as only an idiot would credit such an unsubstantiated allegation.

Only an idiot or Andrew Sullivan, it turns out.

Today, barely a week after I finally extracted a full retraction from Sullivan of his libelous claim that I “regularly defend[] … torture” and am a “torturer,” Sullivan has a short post, titled “The Right’s ‘Legal Hitman,’” that reads in its entirety, “Anonymous Liberal profiles Ed Whelan” (with link).  Gee, that’s some “profile” Anonymous Liberal provided.   And for Sullivan, after recklessly smearing me, to pass along an unsubstantiated (and baseless) assertion that I am a “hitman” is quite something.  Evidently, Sullivan’s disordered conscience was rebelling against him for having apologized to me.   

I have dimly in mind that Sullivan a couple decades ago had some intelligent things to say.  I gather that some folks still read him (I don’t—I learned about his post only through an automated blog search), but I shall from now on presume that they either know his low standards or share them.

Collected Posts on Harold Koh


My primary posts on State Department legal adviser nominee Harold Koh—not just those that were expressly part of my series on Koh’s transnationalism, but also various other posts, including those about his hearing testimony—are collected, and organized for easy reading, at www.eppc.org/koh.  

A Real Loss For the Bench–For Now


I’ve just seen the news that Judge Michael McConnell of the Tenth Circuit will resign from the bench to direct Stanford law school’s Constitutional Law Center.  McConnell is a first-rate legal scholar, which explains Stanford’s attraction to him.  But he also, in his relatively few years on the bench, showed all the signs of being a first-rate judge.  His move back to academe, of course, does not by any means preclude consideration of McConnell for a Supreme Court appointment in some future Republican administration.

But why wait?  Michael McConnell is well-known for his empathy, his acumen, and his non-ideological approach to judging.  I have never heard anything but praise for him from liberal legal scholars.  And he once was President Obama’s colleague at Chicago.  Perhaps the president can change his mind about Stanford.

No, I’m not kidding.

Re: Ruth Marcus’s Misguided Defense of the Obama Standard


Ed is certainly correct to find fault with Ruth Marcus’s defense of “empathy” as a valuable quality in judicial decision-making.  (For more on this subject, though not in direct response to Marcus, see Thomas Sowell and William Murchison.)  Let me add a little more to his cogent criticism.

Marcus writes: “Of course judges are bound by the text of legislation, the words of the Constitution, the weight of precedent.”  And then she immediately adds:

Yet if the right answer was always available to a judge who merely thinks hard enough, we could program powerful computers to fulfill the judicial function. That’s not possible — not, anyway, in the cases that matter most. Those inevitably call on the judge to bring to the task his — or her — life experiences, conception of the role of the courts and, as Obama put it, “broader vision of what America should be.”

Of course judgment is not mere calculation.  But it is disciplined thinking, something no computer can or ever will do, and Marcus and Obama are, at bottom, opposed to discipline.  A proper “conception of the role of courts” would rule out of order any place in judicial decision-making for what the president calls a “broader vision of what America should be.”  Beyond the bounds of the Constitution, statutes, and precedents, there is nothing judges have to say about the great Oughts of American life that the rest of us are obliged to pay the slightest heed.  We don’t put them on the bench for their views on such matters, and heaven knows we can’t easily remove them for their bloviations on such subjects.

Marcus’s argument absolutely implodes when she gets to this: “Possessing the ‘empathy to recognize’ [another Obama phrase] should not determine the outcome of a case, but it should inform the judge’s approach.”  Then Marcus immediately adduces the example of Bowers v. Hardwick, the 1986 decision upholding a state anti-sodomy statute, and retails the familiar story that Justice Lewis Powell, who cast the deciding vote in Bowers, came to regret his vote later, and said that he had “never met a homosexual.”  Marcus suggests that if only Powell “had known men and women in same-sex relationships,” the case might have come out differently, and the law would have lived happily ever after.  In other words, she dearly wishes–flatly contrary to her reservation a moment earlier–that Powell’s circle of acquaintance had been wider and had “determine[d] the outcome of the case.”

This story has always struck me as a real self-inflicted knock against Justice Powell’s reputation as an intelligent man.  Did he really think that if he had known some homosexuals, he might have been led to view the meaning of the due process clause of the Fourteenth Amendment differently?  If so, then it really was time for him to go–he retired a year later–for he had quite forgotten (if he ever knew) the duty of a judge.

And Ruth Marcus’s retailing of this foolish little story is insulting to every judge sitting on the bench today.  Does she think that Justice Scalia voted as he did in Romer v. Evans and Lawrence v. Texas because he’s never met anyone homosexual?  For that matter, does she think that Justice Kennedy, who wrote for the Court in both those cases, said what he said about the Constitution because he does know some?  Evidently: “You got the sense [in reading Lawrence] that Kennedy actually knew people in such relationships,” she writes.  Even Kennedy should be insulted by the suggestion.  What worries me is that he might not be.

Ruth Marcus’s Misguided Defense of the Obama Standard


In today’s Washington Post, columnist Ruth Marcus offers a defense of President Obama’s so-called “empathy” standard for judges.  Her defense suffers from three basic flaws.

First, while claiming that conservatives present an “absurd caricature” of Obama’s views, Marcus doesn’t present a fair account of Obama’s own words.  As I discussed in this essay:

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.”  

Marcus quotes part of what she calls “Obama’s most controversial formulation of the empathy argument”—“we need somebody who’s got … 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”—but she conveniently omits Obama’s closer:  “and that’s the criterion by which I’ll be selecting my judges.”

Second, Marcus asserts that “the cases that matter most … inevitably call on the judge to bring to the task his—or her—life experiences.”  But she doesn’t support that assertion with argument.  If the “right answer” on a constitutional question isn’t “available to a judge who merely thinks hard enough,” one obvious alternative to the judge’s indulging his or her own values—the alternative that judicial restraint requires—is to defer to the democratic enactment.  In other words, if a judge can’t say with requisite certainty that an enactment is unconstitutional, the judge shouldn’t use his or her own values as some sort of tiebreaker. 

Marcus states that “[a]ll judges are guided to some extent, consciously or unknowingly, by their life experience.”  The question is whether they should exercise the discipline to be as dispassionate as possible or should instead indulge their passions.

Third, Marcus asserts that “[p]ossessing the ‘empathy to recognize’ should not determine the outcome of a case, but it should inform the judge’s approach.”  But the line that she purports to draw is imaginary:  if it’s permissible to indulge one’s own empathy, it’s impossible to say that doing so won’t be outcome-determinative in some cases.  Indeed, if doing so doesn’t affect the outcome, then what’s Obama’s point?

It’s the role of the political branches to make law and policy.  It’s the role of those who occupy positions in those branches, and not that of judges, to translate competing concepts of empathy and prudence into public policy and to consult their values and life experiences in doing so.  President Obama is dead wrong on this fundamental matter.

Supreme Court Candidate Diane P. Wood—Part 2


Judge Wood was a member of the Seventh Circuit panel in Christian Legal Society v. Walker (453 F.3d 853 (2006)).  In that case, the Christian Legal Society chapter at a law school provided in its constitution that it drew its leaders and voting members from among those who shared its religious commitments, including its views against extramarital sexual activity, whether heterosexual or homosexual.  The law school dean determined that CLS’s bar to active homosexuals’ becoming leaders or voting members violated the school’s equal-opportunity policies, and he revoked CLS’s official status as a student organization.  CLS then sued the law school for allegedly violating its constitutional rights.

Here’s a remarkable exchange that took place between Judge Wood and CLS’s counsel at oral argument:

Wood:  I suppose from the university’s point of view the concern is now, you know, in the educational setting here is a student who is a member of CLS who is adamantly against homosexuality and sitting next to him or her in the classroom is an openly gay person and it can be a very, ah, poisonous kind of atmosphere.

CLS counsel:  The university already tolerates and in fact encourages that kind of clash of ideals. I mean, the SIU law school has recognized 17 student groups, one of which is the Law School Democrats, one of is the Law School Republicans. I can imagine, in the week before the election last fall that those folks sitting next to each other were probably not all that excited about one another. But that’s part of ….

Wood (interrupting):  Well, but the Republicans don’t — well, last I checked, I don’t think, maybe this is not right — have a tenet of their society that the Democrats are less than fully human. Ah, that, that’s the problem here.

CLS counsel:  It is not true that the CLS chapter has said that homosexuals are less than fully human. Every person, in their view, is created in God’s image, but God, as the Creator, set down rules for righteous living and you don’t help people by telling them that something God does not accept is acceptable. It is not about hatred, it is about love. To tell something, somebody something that’s wrong is right is not loving, and that’s what this chapter would be doing.*

Wood:  Goodness!

Set aside Wood’s snide and inappropriate suggestion that Republicans might view Democrats as “less than fully human.”  Her vicious assertion that CLS viewed homosexuals as “less than fully human” displayed a hostility to orthodox Christian beliefs.  That hostility was the flip side of what President Obama would laud as her own “deepest values,” her “core concerns,” and the “depth and breadth” of her “empathy” for homosexuals. 

It’s not obvious to me how the legal issues in the case should have been resolved.  But I suspect that CLS and its counsel didn’t believe that they received fair and impartial treatment from Wood, and I’d bet that they weren’t surprised when she—alone in dissent, as it happens—voted against CLS in the case.

* Update:  I’m informed by someone who attended the oral argument that Wood conspicuously turned her back to the CLS counsel as he provided this response and that she turned back around to exclaim “Goodness!”

Mishatched Approach


Alas, Senator Hatch, my old boss, seems very eager to repeat his awful mistake from 16 years ago, when he precleared President Clinton’s nomination of Ruth Bader Ginsburg before I or anyone else had the opportunity to do a serious review of her record.  Are you really content with how that one turned out, Senator?

Bloomberg reports that Hatch is crowing that President Obama “told him he won’t nominate a ‘radical or an extremist’” to replace” Justice Souter.  Well, gee, golly, if Obama said that, how could anyone not believe him? 

What’s needed, now more than ever, is a vigorous public debate over the proper role of the courts.  The confirmation process for a Supreme Court justice provides the best vehicle for that debate.  But that debate won’t happen if Hatch and other Republicans preemptively roll over and play dead.

[Cross-posted on The Corner]

Center-Left Souter


My colleague Andrew Grossman had to one-up my Sunday New York Post column, which highlighted cases in which Souter had rejected activist impulses, by offering a more detailed list of cases, including abortion, pornography, crime, death penalty, and privacy where Souter has shown himself to be a Center-Left justice rather than simply a far-left ideologue.  Something to consider when you read the excesses that Ed ably chronicles about some of Souter’s potential replacements.

Koh’s Written Answers to Senator DeMint’s Questions


A quick look at some of the written answers that State Department legal adviser nominee Harold Koh provided in response to post-hearing questions submitted by Senator Jim DeMint:

Q4.  Koh evades answering DeMint’s question whether Koh believes there are “legal limits on the Senate’s ability to condition its consent to a treaty on a declaration that the treaty is non-self-executing.”  But Koh has expressed hostility to the notion that the Senate has the legal ability to condition its consent to a treaty on a declaration that the treaty is non-self-executing (i.e., does not have domestic legal effect).  He also has written that conditioning United States ratification of CEDAW on the “extensive package of reservations, understandings, and declarations” that even the Clinton Administration supported “would be politically unwise, legally questionable, and practically unnecessary to protect American national interests.”  (Koh, “Why America Should Ratify the Women’s Rights Treaty (CEDAW),” 34 Case W. Res. J. Int’l L. 263, 270-271 (2002) (emphasis added).)

Q5.  Asked whether he stands by his (deceptive) testimony about CEDAW, Koh states that he does and adds the trivial observation that the CEDAW committee does not have “legally binding authority over a State Party.”  That observation does not address how much interpretive weight, if any, is to be accorded CEDAW committee statements, nor does it explain how Koh could briskly dismiss as “myths and fallacies” about CEDAW concerns that were squarely based on CEDAW committee statements that he failed even to acknowledge (nor how he could rely on such CEDAW committee statements in his amicus brief in Lawrence v. Texas).

Q10.  Koh fails to address whether he believes that the U.S. military campaign in Kosovo in 1999 violated domestic law.  (I’ve been advised that Koh has opined both that a military action of that scale without congressional authorization is unconstitutional and that the 60-day limit under the War Powers Act for use of military force abroad without congressional authorization—a limit that the Kosovo campaign exceeded—is constitutionally valid, but I need to confirm these points.) 

Q14.  Koh musters a tad more vigor than he did in response to Senator Lugar (Q21 here) in asserting that “[p]rosecutions against U.S. officials in foreign tribunals for acts undertaken in their official duties raise a number of issues that are of very serious concern to U.S. interests,” and he states that the United States “is in the best position to decide whether to take any action against former U.S. officials” for such acts.  Still very feeble, though.

Q16.  Koh tries to evade the fact that his position that the Supreme Court “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law” means subordinating the real American Constitution to ever-evolving rules of foreign and international law.  He cites indirect and attenuated ways in which the Supreme Court “can affect rules of foreign and international law,” and he asserts that the Supreme Court “need not change its interpretation of the U.S. Constitution in order to take international law into account.”  But he doesn’t deny that “coordinating U.S. domestic constitutional rules with rules of foreign and international law” will often require the Court to change its interpretation of the Constitution, as his own positions on various issues make clear. 

Good Litmus Test for the Souter Replacement


In this excellent column, the Washington Post’s Richard Cohen suggests asking President Obama’s nominee about Frank Ricci, one of the discriminated-against firefighters in the case just argued before the Supreme Court, and for whom Justice Souter appeared to have little “empathy.”

This Day in Liberal Judicial Activism—May 5


1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples.  In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.   

Re: Moving the Court Further Left–Alt’s Umbrage


I am glad to stand corrected about what Robert Alt does and does not approve in the jurisprudence of Justice Souter.  Yes, I have read the Exxon Shipping case, though I have not reread it recently; and yes, it rests on principles of maritime common law, not constitutional principles of due process.  But it remains true that Justice Souter was part of recent majorities engaging in “incantations over the due process clause” to limit punitive damages–the very sort of thing that earned him a soft spot in the hearts of some business interests.  Souter made the distinction Alt notices, but as Justice Scalia (joined by Justice Thomas) notices in his one-paragraph Exxon concurring opinion, Justice Souter saw fit to associate (perhaps gratuitously) the due-process cases with this one–an association to which Scalia objected.  Not keeping current with the Alt oeuvre, I was unaware that Robert too was inclined to lodge the same objection.  Now I know, and I thank him, both for the information and for the agreement.

UPDATE: Please see Mea Maxima Culpa.

Re: Re: Moving the Court Further Left — Franck’s Error


Matthew Franck writes that “unlike Robert, I cannot applaud the view of Justice Souter (and the Court’s majority in recent years) that incantations over the due process clause can legitimately produce judicially-imposed outer limits on the award of punitive damages.” The funny thing is, I never said that. I applauded Souter’s decision in Exxon Shipping Co. v. Baker, a maritime common-law case (where judicial limitations on punitives is eminently appropriate), not BMW v. Gore, a constitutional due-process case (where the court erroneously read limitations on punitives into Due Process). Either Franck mistook one case for the other, or he has not read Exxon, which is crystal clear in stating that it is not a due process case:

Today’s enquiry differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process . . . .  Our review of punitive damages today, then, considers not their intersection with the Constitution, but the desirability of regulating them as a common law remedy for which responsibility lies with this Court as a source of judge-made law in the absence of statute.

But even if he has not read Exxon, this should have been clear from my article, which stated “In the area of lawsuit abuse, Justice Souter provided the fifth vote just last term in a majority opinion in the Exxon case, which limited excessive punitive damages under maritime common law.” (emphasis added)

And so, Franck and I agree that the Due Process Clause properly read does not speak to punitive damages. Now perhaps he will agree with me that, contrary to his ill-founded accusation, I never said anything to the contrary.

Supreme Court Candidate Diane P. Wood—Part 1


Among the various folks being talked about as candidates for the Souter vacancy, one whose candidacy I take seriously and whom I have previously written very little about is Seventh Circuit judge Diane P. Wood.  I will address her record in this and subsequent posts.

Let’s begin with Wood’s two rulings in National Organization for Women v. Scheidler, which were reversed by the Supreme Court by 8-1 and 8-0 margins, respectively.  These rulings came in litigation in which the National Organization for Women (“NOW”) and abortion clinics sued anti-abortion activists under the Racketeer Influenced and Corrupt Organization Act (“RICO”) for engaging in various forms of illegal conduct in the course of protests at abortion clinics.

In 2001, Wood wrote the panel opinion that affirmed the trial court’s award of damages and of a permanent nationwide injunction against the defendants.  One particular question was whether defendants had committed violations of the federal extortion statute—the so-called Hobbs Act—on which their RICO liability was based.  Wood ruled that defendants’ argument that the Hobbs Act’s element of “obtaining of property from another” required, of all things, the obtaining of property from another was foreclosed by circuit precedent.  (267 F.3d 687.) 

By a vote of 8-1, the Supreme Court reversed Wood’s ruling.  (537 U.S. 393 (2003).)  Chief Justice Rehnquist’s opinion, joined by all justices except Justice Stevens, ruled that the Hobbs Act meant what it said.  Of particular importance, given what Wood proceeded to do, is Rehnquist’s conclusion to his opinion:

Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.


The Court, in other words, put an end to the case.  Or so it surely thought.

Instead of taking the ministerial action of reversing the district court’s order, the Seventh Circuit panel, in another opinion by Wood, undertook to identify an issue in the case that it believed remained:  whether four acts or threats of physical violence unrelated to extortion or robbery could support a more narrow injunction.  (396 F.3d 807 (2005).)  It issued an order remanding the case to the district court for further action.

The Supreme Court granted review of Wood’s ruling to consider three questions, including (1) whether the Seventh Circuit “improperly regarded this Court’s mandate … by holding that the injunction issued by the District Court might not need to be vacated,” and (2) whether the Hobbs Act “forbids violent conduct unrelated to extortion or robbery.”  In a unanimous opinion by Justice Breyer, the Court ruled that the answer to the second question was no and that there was therefore no need to address the first question.  The last sentence of Justice Breyer’s opinion, however, seems clearly to signal the Court’s views on that question, as the Court goes out of its way to prevent any further mischief by Wood:  “The judgment of the Court of Appeals is reversed, and the cases are remanded for entry of judgment for petitioners.”  (547 U.S. 9 (2006).)

I’ll set aside here the question whether Wood’s initial ruling on the Hobbs Act question was in fact dictated by circuit precedent, though I’ll note that counsel for defendants vigorously contested her reading of circuit precedent.  I’ll instead highlight Wood’s plain defiance of the Supreme Court’s initial order of reversal and her resort to a legal argument so flimsy that that the Court unanimously rejected it.

Might Wood have been driven to such mischief by what President Obama would laud as her own “deepest values,” her “core concerns,” and the “depth and breadth”—and focus—of her “empathy”?  Well, consider that in its editions from 1996 to 2005, Sullivan’s Judicial Profiles stated that Wood was a member of NOW, the lead plaintiff in the litigation, and of Planned Parenthood of Metropolitan Chicago, part of the plaintiff class of abortion clinics.  There’s evidently a dispute over whether that information remained current—she listed her membership in those groups when she was nominated to the Seventh Circuit—and I will readily presume that Wood was not in fact a member of those organizations while sitting on their cases.  But her course of conduct signals the dangers of judicial lawlessness that inhere in Obama’s badly misguided standard for judging.



Continuing to taunt us with the question “What sort of idiocy will he spout next?”–Douglas Kmiec is quoted in the National Law Journal thus, on the subject of Justice David Souter: “Substantively, it will be hard not to remember him as someone who brought some equipoise to the abortion issue, at least in terms of the court’s jurisprudence.”

As the wag who sent me the link put it, Planned Parenthood v. Casey brought “equipoise” to the abortion issue in the same fashion that Plessy v. Ferguson brought “equipoise” to the segregation issue.

Hey, wait a minute.  Wasn’t Equipoise the great-grandfather of Epitaph?  From Frank Loesser’s pen to God’s ears.

Ranking Member Sessions


According to The Hill, Senator Jeff Sessions will be the new ranking Republican member of the Senate Judiciary Committee through 2010.  At that point, Sessions will become the ranking member on the Senate Budget Committee, and Senator Grassley will become the ranking member on the Judiciary Committee.  There is a bit of poetic justice in Sessions’ rise, as the Senate Judiciary Committee voted against sending his nomination to a federal district court proceed to the floor of the Senate bac k in 1986.

Loose Lips at the White House


Word is that Justice Souter informed the White House in confidence last week that he intended, at the end of the term (i.e., in late June), to announce his retirement and that, contrary to his expectations and wishes, someone at the White House leaked the news.  If so, the leaker didn’t do President Obama any favors.  Instead of taking advantage of Souter’s courtesy to prepare, away from the glare of public attention, to name his successor as soon as he announced his retirement, the White House now faces a somewhat messier process.  

Some folks have suggested to me that the leak somehow locked Souter into retiring.  I don’t buy that.  He wouldn’t have informed President Obama that he intended to retire if he hadn’t already made a firm decision to do so.  (And, for what it’s worth, his public letter last Friday stating his intention to retire doesn’t strike me as a binding letter of resignation—though that proposition raises the thornier issue of when a letter of resignation actually becomes binding).

The leak (if it was contrary to Souter’s wishes) would leave Souter with yet another reason to dislike the ways of Washington.

Judicial Picks Have Consequences for Elections, Too


You’ve heard it said too many times to mention from the Left and the Right that elections have consequences, and that this has particular relevance with regard to the president’s prerogative in picking judges. Getting beyond that mere aphorism, however, these consequential presidential prerogatives are not unbounded by political realities. President Bush, for example, made selecting judges in the mold of Justices Scalia and Thomas a major feature of his campaign. This bore political fruit both in terms of politically energizing those concerned with the direction of the Court and similarly in terms of promoting midterm Republican gains in Congress. This shouldn’t be surprising given that polling suggests that the constitutionalist conservative vision for the courts resonates with the general public much more than the freewheeling liberal vision. For example, a November 2008 nationwide survey of actual voters conducted by the polling company for the Federalist Society found that 70% want judges who “will interpret and apply the law as it is written and not take into account their own viewpoints and experiences” over judges who “will go beyond interpreting and applying the law as written and take into account their own viewpoints and experiences.”

Indeed, as Quin Hillyer reported in his DC Examiner column, even Walter Dellinger, Clinton’s acting solicitor general, conceded that “the judicial philosophy issue breaks in favor of conservatives across the country.”

Notwithstanding this acknowledged political advantage, Obama is likely to face extraordinary pressure to appoint a hard-Left judge to replace Souter. For example, in a Huffington Post article titled “Obama Must Not Waver On A Souter Replacement,” the author implores Obama to “appoint an honest-to-goodness liberal to the Supreme Court.” Similarly, the ultra-liberal People for the American Way encourages him to make a “bold” choice. 

If he succumbs to this pressure, he may appease those fringe elements of his party, but he is likely to alienate many mainstream voters of both parties. This could have profound consequences in the midterm election and beyond, as more mainstream voters are confronted with the jurisprudential consequences of such potential liberal appointments. 

And so the polling and Clinton’s former solicitor general offer a cautionary note for President Obama: yes, elections do have consequences, in this case that Obama now has the constitutional duty to appoint judges; however, who Obama picks may have consequences for elections yet to come. 

Re: Moving the Court Further Left


Like Ed, I agree with Robert Alt that we could do worse than David Souter on the Supreme Court, and it would not be surprising if we did.  But unlike Robert, I cannot applaud the view of Justice Souter (and the Court’s majority in recent years) that incantations over the due process clause can legitimately produce judicially-imposed outer limits on the award of punitive damages.  Here I would agree with Justices Scalia and Thomas, whose view may be less friendly to business interests but is kinder to the poor, beleaguered text of the Constitution.

UPDATE: Please see Mea Maxima Culpa.

Moving the Court Further Left


Bench Memos contributor Robert Alt’s fine op-ed in the New York Post gives examples of “numerous important cases” on “lawsuit abuse and criminal law” in which Justice Souter “was a swing vote—sometimes the decisive fifth vote” and in which his replacement may well have the immediate effect of moving the Court further left.  More generally, American business interests are likely to fare less well with Souter’s replacement, as the U.S. Chamber of Commerce’s statement of thanks to Souter reflects.

Republican Senators and Judges’ “Slow-Motion Coup”


From NRO’s excellent house editorial today, “After Souter”:

The Democratic Senate will be a rubber stamp for Obama. Republicans should nonetheless press for an extended debate about the extent to which judges have supplanted self-rule and the role of modern liberalism in that slow-motion coup.…

Republicans have grown attached to their own misbegotten theory of judges: that presidential picks deserve deference so long as they have the right credentials and no major ethical lapses. This political norm made sense in an era when judges stayed within their constitutional authority. In our time, it makes constitutionalist senators complicit in the erasure of the Founders’ legacy.

Sotomayor Not Smart Enough?


According to this article by the New Republic’s Jeffrey Rosen, lots of ardent liberals think that Second Circuit judge Sonia Sotomayor—widely regarded as President Obama’s leading Hispanic candidate for the Supreme Court—just isn’t smart enough. 

This Day in Liberal Judicial Activism—May 4


1984—When is an express signed waiver of Miranda rights not a waiver?  When you try to conceal your identity by signing a false name.  So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez).  Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights.  He signed the form, but, intent on concealing his identity, signed someone else’s name.  Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights:  defendant may well have believed that by using a false name he was not committing himself to anything.” 

In a remarkable display of chutzpah, Sarokin immediately follows this assertion with a “But see” citation to specific and contrary Third Circuit authority that he himself describes as standing for the proposition that “contention that signature was not one’s own is not relevant to the issue of the voluntariness of the confession”.  A more blatant defiance of controlling authority of a higher court is difficult to imagine. 

It’s Not Easy Being a Roosevelt


At The Corner, Ramesh remarks on some fulsome praise of Justice Souter by Kermit Roosevelt III of the University of Pennsylvania law school, and Ed points out that he reviewed Roosevelt’s “thoroughly confused” book a couple of years ago.  So did I.  It was a real mess.

Souter Vacancy III: Obama, Pragmatist?


The most amusing article of the day on the prospect for filling Justice Souter’s seat was the front-pager in the New York Times, “As a Professor, a Pragmatist About the Supreme Court.”  That’s Professor Obama, of course (yes, I know).  Reporter Jodi Kantor interviewed the president’s former colleagues and students at the University of Chicago law school and tells us the following:

–That his nominee will likely be “a careful pragmatist with a limited view of the role of courts.”

–That Obama himself is “a minimalist (skeptical of court-led efforts at social change).”

–That he has “an unwillingness to deal in abstraction.”

–That he “does not particularly prize consistency or broad principle.”

–That (quoting Chicago’s Geoffrey Stone) “if Barack had a free hand to appoint judges without having to worry about confirmations, about politics, that his idea of a great justice would be someone like a Thurgood Marshall.”

What are we to make of all this, other than that the Times is serving the White House’s aims by trying to paint a word-picture of moderation and an absence of ideology?  The quotation from Geoffrey Stone may give the game away, of course, because no one ever accused Thurgood Marshall of pragmatism, minimalism, or a “limited view of the role of courts.”  I guess Stone didn’t get the memo.

But consider the other characterizations in Kantor’s article.  Consistency and principle are at the heart of all legal reasoning–and arguably “abstraction” is the indispensable tool in their service.  Only by de-personalizing the legal issues before them–i.e., by abstracting from the personal qualities or situations of the parties–can judges do justice to them.  After all, judges have been called on since 1789 to “solemnly swear or affirm, that [they] will administer justice without respect to persons, and do equal right to the poor and to the rich, and that [they] will faithfully and impartially discharge and perform all the duties incumbent on [them] . . . agreeably to the constitution and laws of the United States.”  If that isn’t an explicit call for abstraction, principle, and consistency, I don’t know what is.  And the president isn’t drawn much to such things?  And this is supposed to be a good thing?

As for Obama’s being a “minimalist” who will appoint a “pragmatist,” these terms sorely need some fleshing out.  The most prominent exponent of “minimalism” on the Supreme Court is Obama’s erstwhile Chicago colleague Cass Sunstein, who moved on to Harvard and now works in the White House.  At least since his 1999 book One Case At a Time, Sunstein has made the argument that the courts should not press too hard for too much social change all at once.  But he argues this chiefly in order to avoid backlashes and to preserve the capacity of the courts to effect social change, regardless of whether the Constitution itself provides a rationale for the change in question.  This “minimalism” would more accurately be called “gradualist maximalism”–the accretion of ever-greater power to the judiciary by baby steps, or, to mix metaphors, on the analogy of the frog brought gently to a boil before he notices how hot it’s getting.  American democracy is the frog; Sunstein’s judiciary is the cook.  This is not what any traditional understanding of the judicial function would call “minimalism.”

As for “pragmatists,” haven’t we had enough of them?  For most of her career, Justice Sandra Day O’Connor was called a pragmatist.  The label has also been affixed to Justice Anthony Kennedy.  What distinguishes these two justices is that they answer to one principle and only one: absolute devotion to government by judiciary, the very opposite of a “limited view of the role of courts.”  Sometimes O’Connor or Kennedy would cast a “conservative” vote, sometimes a “liberal” one.  But the consistent pattern was augmentation of the judicial role and the removal of as many issues as possible from the control of democratically accountable institutions.  Judicial power above all other things was the “pragmatist” touchstone.  While it may not be transparently “ideological” in ordinary political terms, this is the very opposite of “moderation” in legal terms.

Senators interested in exposing something interesting about President Obama’s nominee should not be buffaloed by claims of “pragmatism,” a notion that has been no friend to the Constitution or to the rule of law.  They should probe the nominee for the very things the president is said–by his friends!–not to be interested in: principle, consistency, and abstraction.

Souter Vacancy II: Vive la Difference?


Also in today’s Washington Post, political scientists Christina L. Boyd and Lee Epstein put in a plug for replacing Justice Souter with a woman.  But their case for this is a strangely narrow one.  Summarizing research they have conducted with Andrew D. Martin, Boyd and Epstein say

we studied the votes of federal court of appeals judges in many areas of the law, from environmental cases to capital punishment and sex discrimination.  For the most part, we found no difference in the voting patterns of male and female judges, except when it comes to sex discrimination cases.  There, we found that female judges are approximately 10 percent more likely to rule in favor of the party bringing the discrimination claim. We also found that the presence of a female judge causes male judges to vote differently. When male and female judges serve together to decide a sex discrimination case, the male judges are nearly 15 percent more likely to rule in favor of the party alleging discrimination than when they sit with male judges only.

Actually, the paper Boyd and Epstein did with Martin, to which they link, did not “stud[y] the votes of federal court of appeals judges in many areas of the law.”  It studied only sex discrimination cases under Title VII, and the authors explicitly remark that “it seems worthwhile to consider several other areas of the law” because they didn’t.  Perhaps there is some other study the three of them have conducted, but the one they link here does not do what they claim it did in their Post article.

Why Boyd and Epstein would claim more for their study than it did escapes me, since a more modest claim would help their case more.  “We found a difference in sex discrimination cases; let’s go look for differences elsewhere” is a lot more compelling than “We looked everywhere and found only a (small) difference in sex discrimination cases.”  After all, why should anyone attach so much importance to Title VII cases as to make a choice of a Supreme Court justice’s sex turn on it?

And of course, we wouldn’t have any idea whether Title VII cases were decided more justly or more unjustly, from knowing only that they were decided more or less often for the claimants.  Would we?

UPDATE: A reader points me to another paper by Boyd et al. in which the effect of women’s participation on appellate courts was compared across various areas of the law.  So Boyd and Epstein do, after all, have just as uncompellingly narrow a case for women judges as they say they did.  But why didn’t their Post article point to the research results they were claiming? And, of course, my final point above stands quite unaffected.

Souter Vacancy I: Toward Armistice in the Judicial Wars?


Major newspapers on this Sunday are full of all sorts of speculation about, and advice for, President Obama’s nomination of a new Supreme Court justice to succeed David Souter.  In the Washington Post, in addition to the “Topic A” symposium to which our Ed Whelan made a contribution, there’s a piece by the Brookings Institution’s Benjamin Wittes noting that some of the best potential nominees to the Court are out of the running for the worst reason: they’re too old, at least by contemporary standards.  It used to be normal for presidents to nominate justices who were already in their 60s, but no more; as Wittes points out, “the ever-escalating political war over the courts has put a premium on youth–on justices who can hang around for decades as members of rival ideological camps.” 

But why is there such a “political war over the courts”?  Because the Supreme Court has politicized itself more than at any time in our history, intruding on more and more areas of policymaking that are not properly judicial business and conjuring doctrines of “constitutional law” that have nothing to do with the Constitution.  As for the “rival ideological camps,” it would be more accurate to say that as a general matter (there are exceptions), political conservatives want non-ideological judges, not “conservative” ones, while political liberals want ideologically liberal judges.  So the “political war” Wittes mentions is really a war over whether the Supreme Court should be political, not a war over whose politics will be in charge of the judiciary.  It’s true that both sides in our politics want young justices who will stay a long time, but liberals want to secure the judiciary’s long-term politicization, while conservatives want to undo that and to restore, for the long term, the traditional understanding of the judicial function.  (Again, this is a generalization with some exceptions on both sides of the political aisle.)

This “war” is likely to go on a long time, with every Supreme Court nomination a high-stakes battle of enormous consequence.  One way to bring the stakes down and to begin working toward a ceasefire would be to routinize the conflict.  As I remarked here a couple of months ago, I’m drawn toward the idea of eliminating the federal judiciary’s tenure “during good Behaviour” and instituting 18-year terms for Supreme Court justices, with one seat coming vacant every two years.  Suddenly experience might be valued over youth; the automatic opening of seats according to the calendar would give everyone reason to hope for some influence over judicial behavior in the near term; the repeated revisiting of the constitutional issues might improve the understanding of them, among political leaders as well as the public; we might begin to work our way toward a restoration of a more limited use of judicial power; and if that failed to occur, and we were stuck with a judiciary that is just another political institution, we could at least affect the composition of its personnel on a regular basis, just as we can with our other institutions.

This Day in Liberal Judicial Activism—May 3


1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority.  The result is that white firefighters with more seniority were to be laid off in favor of minority firefighters with less seniority.  In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking!  Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters:  “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.” 

WSJ vs. WSJ on Souter and Obama


The weekend edition of the Wall Street Journal has a good house editorial on the Souter vacancy.  Among other things, the editorial correctly observes:  “While he advertised himself as a believer in stare decisis, or Supreme Court precedent, Justice Souter nearly always found a way to join 5-4 majorities that overturned precedents he disliked.”  (A striking example:  In voting in Lawrence v. Texas to overturn the Court’s 17-year-old precedent in Bowers v. Hardwick, Souter blithely abandoned the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade.)  The editorial also properly highlights one of President Obama’s several statements making clear his commitment to nominate a liberal judicial activist who will indulge his or her own policy preferences:

“We need somebody who’s got the heart to recognize — the empathy to recognize what it’s like to be a young teenaged mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old,” Mr. Obama said in 2007. “And that’s the criteria by which I’m going to be selecting my judges.” It’s hard to imagine a more expansive view of a judge’s role than that one.


(The editorial does err in asserting that the 1992 ruling in Casey had a “6-3 majority … upholding Roe v. Wade”; the actual margin was 5-4.)


By contrast, one news article in the same edition of the paper contends that Souter’s joint opinion in Casey “[d]isplayed characteristic respect for precedent” (and was “nuanced”!—but see This Week for June 29, 1992).  It also contends that conservatives had hoped that Souter “would side with them on the hot-button social issues.”  That phrasing obscures the critical distinction between recognizing that the Constitution leaves most “hot-button social issues” to the democratic processes (which conservatives, and all Americans, were entitled to expect that Souter, and all other justices, would do) and entrenching the conservative policy on these issues as constitutionally compelled (something that hardly any conservatives expected or sought).  (For a discussion of how this elementary distinction applies to the issue of abortion, see this essay of mine.) 


Yet another WSJ article contends that it’s Obama’s stated “preference for someone attuned to the ‘daily realities of people’s lives’”—rather than his much more explicit threats—that “conservatives have seized upon as a prescription for what they consider to be unwarranted judicial activism.” 


The news articles are accompanied by a photo of the Court’s justices that uses the crude but convenient shorthands of “liberal” and “conservative” to identify eight of them but that identifies Justice Kennedy as an “independent conservative.”  If Kennedy is any sort of “conservative” (see point 4 here), the label has become meaningless.  And what he is most “independent” of is adherence to traditional principles of legal interpretation.

(I don’t mean to single out the Wall Street Journal’s news coverage for criticism; errors like its qualify as conventional wisdom among reporters.)

Justice Souter and His Replacement


It’s been a busy day of media interviews, but I’ve worked in some writing.  This New York Times symposium on Justice Souter’s legacy includes my contribution, “The Souter Mistake.”  An excerpt:


What will Justice Souter be remembered for? No opinion of his comes to my mind except the joint opinion that he, Justice O’Connor and Justice Kennedy co-authored in 1992 in Planned Parenthood v. Casey. That joint opinion is significant not for its coherence or elegance (it has neither quality) but because it perpetuated Roe v. Wade’s removal of the issue of abortion policy from the ordinary democratic processes — and it resorted to what Justice Scalia aptly called a “Nietzschean vision” of the judicial role in order to do so.

The end result was not, as Souter and company contended, a resolution of the bitter national controversy over abortion, but the continued poisoning of American politics by the Court’s power grab on that issue.


Sunday’s Washington Post will also present, in its Topic A feature on what President Obama should do with his first Supreme Court nomination, my advice, including:


Alas, the once-dominant species of liberal proponents of judicial restraint has relatively few surviving members. Obama should find them — why not Jose Cabranes, the excellent judge whom President Clinton appointed to the 2nd Circuit? — and help revive the species. 

As for the interviews:  Here’s the transcript (with a few minor garbled passages) of my discussion with Glenn Beck.  Believe it or not, I couldn’t bring myself to support Harold Koh’s candidacy for the Court.

[Cross-posted on The Corner]

Unsolicited Advice for GOP Senators


As I suggested earlier today, there is no reason to expect that a Supreme Court justice appointed by President Obama will be significantly worse than Justice David Souter has been.  But there is still less reason to hope that he or she will be any better than Souter.  It has been a long time since the Democratic Party seemed capable of generating Supreme Court appointees who had any reliable notions of judicial restraint, let alone an attachment to originalism.  This is the party that once gave us justices like Felix Frankfurter, Robert Jackson, Fred Vinson, and Byron White–all of whom would find themselves on the outs with today’s Democrats, and with the prevailing habits of mind among liberal legal scholars.  It says a lot about the Democrats that the last Supreme Court justice they appointed, for whom anyone wedded to judicial restraint could have any real regard, took his seat in 1962.

With 59 or 60 Senate seats in Democratic hands, there is really nothing Republicans can do to prevent President Obama from appointing whomever he wants.  He need only satisfy his own party, and that shouldn’t be hard.  So what should Republicans do?  Herewith some preliminary thoughts (I’m assuming the worst sort of nomination, of course, but not without cause):

1.  Slow the probable rush to confirmation.  Democrats will not be interested in spending much time on this.  Why should they be?  It’s up to Republicans to throw some sand in the gears.  Why should they bother?  In order to–

2.  Develop an argument.  Get witnesses before the confirmation hearings, write a strong minority report on the nominee’s record, question the nominee him- or herself aggressively.  The pattycake played with Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994 is a precedent to be avoided, not followed.  Pointed questions about controversial past decisions are definitely in the strike zone, in my opinion (and I said so when George W. Bush’s nominees had their innings too).  The more a nominee’s fitness is probed, the more unacceptable he or she might be made to look to the American people.  This is not “Borking” if it is done with fair argument about the legal issues at stake.  But however bad a nominee looks,

3.  Don’t go near the filibuster.  It’s not only hypocritical after so many GOP senators professed their opposition to it while George W.  Bush was president.  It’s also just plain wrong.  Supreme Court nominations deserve an up-or-down vote.  But in order to reach a unanimous consent agreement on the norms governing floor debate on the nomination, Republicans should push for as much time as is reasonably possible.  Again the development of the argument is the thing, and that takes time.  And finally,

4.  Stick together as a party opposed to the nominee.  Sure, the Democrats and the White House will try to paint the GOP senators as nasty naysayers.  But did it ever do the Republicans one bit of good that Ginsburg was approved by a 96-3 vote and Breyer by 87-9?  When those two justices proved to be just as activist as every reasonable observer expected them to be, there were damn few senators who were in a position to give an acceptable answer to the question, “So what did you do about that when you had the chance?”  Given the sort of nominee I expect to see from President Obama, it would be a disgrace for the Republican Party if the affirmative votes totaled more than 70.  After all, a party unwilling to stand for something when it is in the weaker position won’t persuade many voters that it deserves to be in a stronger one.  And every Supreme Court nomination is an opportunity to revisit basic constitutional principles that are enduringly popular with the American people, whether you win the vote or lose it.

Do I expect Republican senators to take my advice?  Well, let’s not ruin a good Ought by turning to the ugly Is.  But a guy can hope, can’t he?

Ranking Member Grassley?!?


Word is that Senator Grassley is fighting to succeed Arlen Specter as the lead Republican on the Senate Judiciary Committee, even at the same time that he would maintain his ranking role on the Finance Committee.

Grassley usually votes right, and I have a lot of respect for him, but I seriously question whether he has the ideal skill set to be the lead Republican on the Judiciary Committee.  My concern isn’t that he’s not a lawyer—there are lots of non-lawyers who have a much better understanding of constitutional law than most lawyers.  It’s that he has never demonstrated any real understanding of, or even interest in, the grand debates over the role of the Courts.  And he is not the most effective questioner on legal issues. 

Let’s have a “Reverse Souter”


My fellow Bench Memorandists Ed Whelan and Wendy Long are worried that Justice David Souter could be replaced with someone “even worse” (says Ed), someone who is “a hard-left judicial activist” (says Wendy).

I can think of one or two areas of constitutional law where I have agreed with David Souter, but for the most part he has been a disaster.  On the hot-button issues of abortion, assisted suicide, gay rights, the death penalty, and the place of religion in the public square, Souter has been just as wrong as anyone Obama could name from the worst list Ed and Wendy could come up with.  A more visible “hard-left” justice, with more of a penchant to give speeches, to sound off, to tangle in public with Justices Scalia and Thomas, would fulfill the dreams of liberal law professors to have a hero, but would probably change the course of the Court very little from what its trajectory would be if Souter stayed another 20 years.  In short, I think a Court with Souter staying would be no less likely to do all the bad things on Ed’s list than a Court with Souter replaced by an Obama appointee.

But I think it’s high time for some reciprocity from our friends in the Democratic party.  I think they owe us a Souter in reverse.  That is, President Obama should nominate someone who is a virtual unknown, a cipher with no paper trail but a reputation as a “moderate” in Democratic party ranks, capable of assuring liberal senators that he has no problem with judicial lawmaking as an abstract proposition, but who turns out within the first term or two on the Court to have been a closet originalist, devoted to judicial restraint, and who “grows into office” as a stalwart ally of Scalia, Thomas, Roberts, and Alito.

Since they’re all male Catholics from the East, I suggest President Obama find a woman from the West who is Jewish or Protestant, but otherwise fits the description above.  Please send me the names of your nominees, and I’ll make sure they get to the White House.

Souter and the Court


As expected, Justice Souter is retiring, giving President Obama his first Supreme Court nomination just 3 months into his presidency.

Keep in mind:

1.  The current Supreme Court is a liberal, judicial activist court.  Obama could make it even more of a far-left judicial activist court, for a long time to come, if he appoints radicals like Diane Wood, Sonia Sotomayor, and Elena Kagan.  A new Justice in this mold would just entrench a bad majority for a long time.

2.  If Obama holds to his campaign promise to appoint a Justice who rules based on her own “deepest values” and what’s in her own “heart” — instead of what is in the Constitution and laws — he will be the first American President who has made lawlessness an explicit standard for Supreme Court Justices.

3.  The President and Senators need to be careful about, respectively, nominating and appointing a hard-left judicial activist.  Americans who elected Obama may have done so out of fear for the economy or other reasons, but they did not elect him because they share his views on judges.  By a margin of more and 3 to 1, Americans want Supreme Court Justices who will practice judicial restraint and follow the law, not jurists who will indulge their own personal views and experiences in deciding cases.  

4.  As Senate Republican Leader Mitch McConnell has pointed out, a judge who decides cases based on her personal and political views, instead of what the law says, will have a hard time fulfilling her oath to dispense justice impartially.  Senators have a constitutional duty to rigirously scrutinize the nominee on this score, and vote “no” if the nominee cannot establish that she will follow the law, rather than her own values and beliefs, as the President has suggested.

This Day in Liberal Judicial Activism—May 1


1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read:  Catholic) high school violates the Establishment Clause.  One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote.  Chief Justice Rehnquist’s majority opinion states:  “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.”  Justices Blackmun, Stevens, O’Connor and Souter dissent. 

2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees.  The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture.  Owen’s nomination is finally confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005.   

Filling the Souter Seat


Some initial thoughts on President Obama’s opportunity to appoint a successor to Justice Souter:


1.  Obama’s own record and rhetoric make clear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion.  As I discussed more fully in this essay:

In explaining his vote against [the confirmation of 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.


2.  Souter has been a terrible justice, but you can expect Obama’s nominee to be even worse.  The Left is clamoring for “liberal lions” who will redefine the Constitution as a left-wing goodies bag.  Consider some of their leading contenders, like Harold Koh (champion of judicial transnationalism and transgenderism), Massaschusetts governor Deval Patrick (a racialist extremist and judicial supremacist), and Cass Sunstein (advocate of judicial invention of a “second Bill of Rights” on welfare, employment, and other Nanny State mandates).  Or Second Circuit judge Sonia Sotomayor, whose shenanigans in trying to bury the firefighters’ claims in Ricci v. DeStefano triggered an extraordinary dissent by fellow Clinton appointee José Cabranes (and the Supreme Court’s pending review of the ruling).  Or Elena Kagan, who led the law schools’ opposition to military recruitment on their campuses, who used remarkably extreme rhetoric—“a profound wrong” and “a moral injustice of the first order”—to condemn the federal law on gays in the military that was approved in 1993 by a Democratic-controlled Congress and signed into law by President Clinton, and who received 31 votes against her confirmation as Solicitor General.  Or Seventh Circuit judge Diane Wood, a fervent activist whose extreme opinions in an abortion case managed to elicit successive 8-1 and 9-0 slapdowns by the Supreme Court.

3.  Don’t be fooled by the false claims that we have a conservative Supreme Court.  The Court has a working majority of five living-constitutionalists.  Four of them—Stevens, Souter, Ginsburg, and Breyer—consistently engage in liberal judicial activism, and a fifth, Kennedy, frequently does.  As a result, the Court is markedly to the left of the American public on a broad range of issues.  Indeed, in coming years, Souter’s replacement may well provide the fifth vote for:

– the imposition of a federal constitutional right to same-sex marriage;

– stripping “under God” out of the Pledge of Allegiance and completely secularizing the public square;

– the continued abolition of the death penalty on the installment plan;

– selectively importing into the Court’s interpretation of the American Constitution the favored policies of Europe’s leftist elites;

– further judicial micromanagement of the government’s war powers; and

– the invention of a constitutional right to human cloning.  

American citizens have various policy positions on all these issues, but everyone ought to agree that they are to be addressed and decided through the processes of representative government, not by judicial usurpation.  And President Obama, who often talks a moderate game, should be made to pay a high price for appointing a liberal judicial activist who will do his dirty work for him.

Souter Reportedly to Retire


Mark Hemingway and K-Lo are linking to this over at The Corner, but for those who check here first for news of the bench, NPR is reporting that Justice David Souter has informed the White House he will retire from the Supreme Court at the conclusion of the current term this summer, though he will remain on the bench until a successor is confirmed (a practice I deplored as probably unconstitutional when Justice O’Connor did it four years ago).  Quietly back to New Hampshire will go one of the great mistakes of George H.W. Bush’s administration.

Souter Retiring


As Corner readers already know, NBC News is reporting that Justice Souter will retire at the end of this term, or when his replacement is confirmed.