Souter Reportedly to Retire

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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

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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. 

Review of Koh Confirmation Hearing Transcript—Part 3

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More on Harold Koh’s statements at his softball hearing (numbered serially from my Part 2 post):

3.  Asked about his 2002 op-ed asserting that the Iraq war would violate international law because the United States did not receive “explicit United Nations authorization” for the war, Koh contends that “the only point I made in that article” was that “the consequence of that [lack of explicit UN authorization] was that the intervention into Iraq in 2002 did not have the kind of broad support that we would have preferred.”  In fact, Koh made several other points. 

One point that Koh understandably would want to obscure is his assertion that “such an attack would [not] make the world or America safer” because “If we attack, we could expect [Hussein] to respond with weapons of mass destruction against Israel and against us if he can reach us.”  That’s right:  Koh was invoking what was believed to be Saddam Hussein’s control of weapons of mass destruction, and was doing so as a reason not to remove Hussein.

Among Koh’s other points:  “Fifth and finally, I do not believe that unilateral pre-emptive attack is what this country stands for.”  I also do not believe that unilateral pre-emptive attack is what this country “stands for” (as opposed to something that we may under limited circumstances be justified to resort to).  But Koh’s phrasing conceals his more radical position (as discussed in Q32 here) that “we move to a per se ban on unilateral anticipatory war making, with any post hoc justification of such anticipatory actions being asserted as a defense and not in the form of prior permission.”   

4.  Asked whether those damaged by the United States government’s alleged violation of international law in invading Iraq have a legal remedy they may pursue, Koh denies that the alleged illegality of the invasion would trigger any legal exposure.  But Koh’s own positions on customary international law and the Alien Tort Statute readily support an action, based on a customary international law rule against aggressive war, against all American corporations that assisted the war effort for aiding and abetting the commission of war crimes. 

In addition, beyond tort liability for American corporations, Koh’s position that the invasion of Iraq violated international law would seem to mean that he believes that President Bush and all members of Congress who authorized the war in Iraq (and who did so without maintaining that additional United Nations authorization for the war was necessary) are vulnerable to prosecution as international war criminals.  But that’s probably not a good point for Koh to highlight when he’s trying to get confirmed by senators whom he regards as having been complicit in war crimes.

5.  Nearly three decades after Israel’s 1981 attack on the Iraqi nuclear installations at Osirak, Koh is unable to answer whether Israel’s attack was justified as a preemptive act of self-defense or violated international law.

Review of Koh Confirmation Hearing Transcript—Part 2

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Now let’s examine (in this post and the next) some of Harold Koh’s statements at his softball hearing:

1.  Koh asserts that “transnational legal process, which is an academic idea, just says what we all know, that we live in an interdependent world that’s growing increasingly more interdependent.”  He calls it merely “a description of a world in which we live.”

But Koh’s transnational legal process is far more than a statement of the obvious point that “we live in an interdependent world.”  It is Koh’s strategy for importing international and foreign law to override the traditional processes of American representative government.  As Senator Lugar put it in his written question to Koh (Q10):

In a 2004 law article in the Berkeley Journal of International Law addressing this theory you wrote:  “Some have asked me, ‘Is your notion of transnational legal process an academic theory?  Is it an activist strategy?  Or is it a blueprint for policy makers?’  Over time, my answer has become, ‘It is all three.’

Consider, for example, Koh’s Stanford Law Review article “On American Exceptionalism” in which Koh says that his “preferred solution” to “American exceptionalism”—on First Amendment speech rights (see here and here) and much else—is “triggering transnational legal process.”  And consider Koh’s discussion of the “six key agents in the transnational legal process” of the “internalization” of international law into domestic law.  (Koh, “The 1998 Frankel Lecture:  Bringing International Law Home,” 35 Hous. L. Rev. 623, 646-655 (1998).)  Second on Koh’s list—after “transnational norm entrepreneurs”—are “governmental norm sponsors” who will “act as allies and sponsors for the norms [that transnational norm entrepreneurs] are promoting”:

 

Once engaged, these governmental norm sponsors work inside bureaucracies and governmental structures to promote the same changes inside organized government that nongovernmental norm entrepreneurs are urging from the outside. Not infrequently, officials within governments or intergovernmental organizations become so committed to using their official positions to promote normative positions that they become far more than passive sponsors but, rather, complementary “governmental norm entrepreneurs” in their own right.

As I have discussed, Koh, as State Department legal adviser, would clearly aim to be one of those governmental norm entrepreneurs.

2.  Challenged by Senator Isakson about what the transnationalist constitutional game would yield, Koh contends that “[t]here’s certainly no campaign to shrink any provision of the Constitution” and that his views on First Amendment free speech protections were addressed to “how do we enter a treaty in which that free speech might be implicated”—with his answer supposedly having been to recommend a reservation to the treaty. 

That’s certainly not what Koh was doing in his Stanford Law Review article “On American Exceptionalism.”  Far from trying to protect First Amendment rights through a treaty reservation, Koh identified as the first of four “faces” of “American exceptionalism that he lists “in order of ascending opprobrium” America’s “distinctive rights culture,” which gives “First Amendment protections for speech and religion … far greater emphasis and judicial protection in America than in Europe or Asia.”  America’s “exceptional free speech tradition can cause problems abroad,” and the way for the “Supreme Court [to] moderate these conflicts” is “by applying more consistently the transnationalist approach to judicial interpretation” that Koh advocates—i.e., by redefining First Amendment guarantees to comport with foreign and international rules.  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1483 & n. 14 (2003).)  As law professor Eugene Volokh puts it, Koh sure seems to be advocating the use of transnationalism to “reduce the scope of American constitutional rights.” 

Review of Koh Confirmation Hearing Transcript—Part 1

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The transcript (not yet available online, so far as I’m aware) of Harold Koh’s confirmation hearing on Tuesday before the Senate Foreign Relations Committee reveals (1) an utter failure on the part of committee Democrats and ranking Republican Richard Lugar to understand or engage Koh’s radical transnationalist views, and (2) Koh’s deceptive testimony about his views.  I’ll address the first matter in this post and the second in my next post.

In his opening statement, committee chairman John Kerry declares that “accusations that [Koh’s] views on international or foreign law would undermine the Constitution, which some have suggested, are simply unjustified.”  But Kerry doesn’t confront Koh’s actual views.  When Koh writes that the Supreme Court “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law,” the only way for the Supreme Court to do that “coordinating” is to subordinate the real American Constitution to ever-evolving rules of foreign and international law. 

Koh’s own writings amply prove the dual threats that his transnationalist approach to constitutional interpretation poses.  First, Koh’s approach threatens to erode cherished First American protections for speech and religion that he disdains as a part of America’s “distinctive rights culture” that he finds “opprobi[ous].”  Second, Koh’s approach invents new constitutional rights—against the death penalty and in favor of same-sex marriage, for example—that would usurp the realm of representative government.

Kerry posits that Koh’s statement that he regards the Constitution as “the ultimate controlling law” somehow answers the charge that he would subordinate the Constitution to international and foreign law.  But Koh’s seeming assurance is a meaningless dodge, given his real position that the meaning of constitutional provisions can and should be redefined to comport with ever-changing rules of foreign and international law.

Kerry further contends that “[s]ome have actually alleged that [Koh] is against Mother’s day.”  If so, that’s the first I’ve heard of it.  A quick and incomplete Google search indicates that some of Koh’s defenders have contended that Koh’s critics have made this allegation, but they don’t link to any actual allegation.  The actual charge that I have leveled against Koh that involves (as one component) Mother’s Day is that Koh, in his 2002 testimony to the Senate Foreign Relations Committee, failed even to acknowledge, much less confront, the CEDAW committee’s interpretations that undercut his brusque dismissal of supposed “myths and fallacies” about CEDAW—and that he deliberately provided his deceptive testimony.  But rather than confront serious evidence that the nominee before his committee, whom Kerry presents as a paragon of integrity, gave shyster-quality testimony, Kerry tries to dismiss the whole matter with a grotesque distortion of the allegation against Koh.

Kerry evidently doesn’t understand how radical Koh’s transnationalism is.  Kerry asks Koh whether domestic incorporation of international and foreign law could “happen outside of a treaty that is ratified by the United States Senate,” and evidently expects that Koh will answer no.  Koh instead calls the treaty vehicle only “the most obvious way” and refers also to the transnationalist game on customary international law, but doesn’t highlight for Kerry that the transnationalist game on the Constitution is yet another vehicle.  

Senator Lugar’s performance is as bad as Kerry’s—even worse insofar as one might reasonably expect a Republican to be more interested than a Democrat in exposing Koh’s views.  Lugar misframes the entire nomination battle by quoting at length from the cartoonish coverage of Koh’s nomination provided by Time’s Massimo Calabresi (son of former Yale law school dean Guido Calabresi).  Lugar thanks Koh for his “diligence” in responding to Lugar’s written questions, but fails to observe, much less follow up on, any of the troubling aspects of Koh’s answers.  And Lugar manages to pose only one question, a softball that asks Koh to “speak again to the problems as you see pragmatically, of the problems of international law” and that mistakenly assumes, contrary to Koh’s transnationalist views, that “significant changes in international law” can come only through Senate consent to treaties.

Andrew Sullivan’s Retraction

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Andrew Sullivan has now retracted the entirety of his libelous attack on me (except that he has somehow not seen fit to revise his original post to comport with, or even to link to, his full retraction).  [Update:  My strikethrough reflects actions that Sullivan has now taken.] 

Koh’s Written Answers to Senator Lugar’s Questions

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Once I’ve reviewed the transcript of yesterday’s confirmation hearing for State Department legal adviser nominee Harold Koh, I expect to have some comments on Koh’s testimony.  For now, I’ll address some of the written answers that Koh submitted before the hearing in response to questions submitted by Senator Richard Lugar (the ranking member on the Senate Foreign Relations Committee):

Q1. Koh says that it would be “premature” for him to address the extraterritorial scope of the International Covenant on Civil and Political Rights.  Maybe so.  Yet it would have been good if Koh had acknowledged that he has argued to the Supreme Court (in his amicus brief (p. 4) in Hamdan v. Rumsfeld) that the ICCPR governs the trials of criminal charges against detainees held as enemy combatants, whether or not those trials occur on American soil. 

Q3. Koh says that his “long-held view is that the Executive Branch is bound to comply with the reservations, understandings and declarations that accompany the Senate’s advice and consent to ratification of a treaty.”  That statement makes it seem as though Koh believes that the Senate’s ability to attach reservations, understandings and declarations to its consent to a treaty is unlimited.  But in fact 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).)  

Q8. Asked about his reliance on foreign law in interpreting the Constitution and the role that he would have in forming the Obama administration’s position on the meaning of constitutional provisions, Koh states (in part) that “the U.S. Constitution is the ultimate controlling law in the United States.”  That seeming assurance is a meaningless dodge, as Koh’s real position is that the meaning of constitutional provisions should be redefined to comport with ever-changing rules of foreign and international law.

Q21. Asked how the United States government should respond to “efforts of foreign courts to assert criminal jurisdiction over sitting or former U.S. officials for acts undertaken in the course of their official duties,” Koh charts an amazingly feeble course.  He doesn’t suggest that it’s the proper role of the United States to handle any prosecutions of sitting or former U.S. officials for their official actions, or that the United States should vigorously protest such criminal prosecutions by foreign authorities, or threaten reprisals, or do anything to put a stop to them.  Rather, he says that the role of the United States “should be first to understand the procedural posture of the case, precisely how it arose, the nature of the allegations raised against the former U.S. government officials, the shared aspects, if any, between the foreign prosecution and any other investigations or inquiries that may be pending or forthcoming in the United States, and the nature of any defenses that might be available in such proceedings.”  He would “follow such cases closely” and “work actively with our foreign counterparts through legal and diplomatic channels.”

Q23. Koh maintains that his previous assertion in a law-review article that the President and other U.S. officials “may be sued” under the Alien Tort Statute wasn’t meant to express a view that they wouldn’t have legal immunity against such suits. 

Q32. Asked about one of his publications, Koh maintains that he “agree[s] with the longstanding U.S. government view that a state may use military force to defend itself if an armed attack occurs, or in the event that such an attack is imminent.”  But what he actually proposed, in the very passage that Senator Lugar quotes, is that “we move to a per se ban on unilateral anticipatory war making, with any post hoc justification of such anticipatory actions being asserted as a defense and not in the form of prior permission.”  Koh called for “a unilateral [sic—the context suggests that Koh means universal] ban on unilateral preemptive attacks”:

Those nations who feel compelled to ignore that ban could seek subsequent forgiveness and not prior permission, much as President Harry Truman did when he dropped the atomic bomb on the civilian population of Nagasaki.… If the president feels compelled so to act, and he wants to argue that he was motivated to do so in the name of national survival, he can defend himself in many different legal and political fora. A prosecutor could decline to prosecute him, he could receive a pardon, or his sentence could be commuted. But we should reject the notion that he should be given the freedom and authorization ex ante to undertake such drastic action.   

That is decidedly not the “longstanding U.S. government view.” 

This Day in Liberal Judicial Activism—April 29

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1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson.  Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.  

Horton’s Retraction

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Scott Horton has retracted his libelous comment against me.  I thank him for doing so.

Ourselves and Our Posterity

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I’m pleased to report that Ourselves and Our Posterity:  Essays in Constitutional Originalism—a collection edited by Bradley C. S. Watson—is now available.  The book contains essays by ten contributors, including one by Matt Franck (“Freedom Questions, Political Questions:  Republicanism and the Myth of a ‘Bill of Rights’”) and one by me (“Original Meaning and Responsible Citizenship”).

Horton’s Howler

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My general practice is to treat e-mail communications as private, but I think that an exception to that practice is warranted for e-mails by folks who have libeled me and who are attempting to defend their libel.

Last Friday, in supposed support of his mistaken inference that I took part in a July 2003 NSC Principals meeting on the CIA’s interrogation techniques, Scott Horton alleged on Harper’s website that I am “presently melting [my] keyboard with defenses of the torture-enablers at National Review.”  After my assistant, at my request, challenged him by e-mail to substantiate that (baseless) allegation or retract it, Horton sent an e-mail in response.  Here’s his defense (emphasis added) of his libelous statement:

Mr. Whelan wrote a series of posts published at NRO in which he discussed Jack Goldsmith’s book The Terror Presidency and highlighted specifically and approvingly Jack’s excuses for the work product of his colleagues at OLC.  That is what I had in mind in particular.  

I wrote the series of four posts that Horton refers to on a single day in September 2007—more than nineteen months ago.  Horton’s assertion that he had those posts in mind when he referred to my “presently melting [my] keyboard with defenses of the torture-enablers” is an obvious falsehood. 

Horton’s characterization of my posts about Goldsmith’s book (see here, here, here, and here) is equally ridiculous.  My posts summarize aspects of Goldsmith’s book.  As I stated in the first post in the series, I “am not well positioned to comment on the issues in immediate dispute, as my own involvement at OLC in opinions on national-security matters generally ranged from non-existent (especially on the opinions that have been the subject of greatest controversy) to marginal.”  As for my supposed approval of what Horton wildly misdescribes as “Jack’s excuses for the work product of his colleagues at OLC”:  I simply called Goldsmith’s book “a revealing and sympathetic account of the conflicting pressures that executive-branch officials face as they try to protect the country from terrorism” and a “fascinating account of the ‘unusual psychological pressures on executive branch officials who are personally responsible for preventing hard-to-fathom terrorist attacks that could kill thousands.’”

Horton also states in his e-mail:

In addition of course, you are well aware of Mr. Whelan’s serial attacks on Harold Koh, who is probably the most prominent critic of the torture-enablers with whom Mr. Whelan previously worked.  

The fact that Horton relegates this proposition to an afterthought—and doesn’t present it as what he “had in mind in particular” when he made his libelous statement—suggests that even he recognizes that it’s absurd to equate criticism of Harold Koh with what he calls “defenses of the torture-enablers.”

Hollis and Borgen in Defense of Koh

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The apparent strategy of most of Harold Koh’s defenders has been to lie low and trust that inattention to Koh’s radical transnationalist views will assure his confirmation by a heavily Democratic Senate.  The poor quality of the arguments that defenders of Harold Koh offer on his behalf when they do show their heads is a striking testament to how weak Koh’s positions are.

Consider this Philadelphia Inquirer op-ed yesterday by international law professors Duncan B. Hollis and Christopher J. Borgen, both of whom also blog at Opinio Juris.  Hollis and Borgen purport to respond to “a small but vocal group of critics [who have] used op-ed pages and blogs to rail against Koh’s nomination.”  But their op-ed sets up and knocks down a series of straw men:  e.g., critics of Koh supposedly object to the notion that “international laws … can somehow affect U.S. behavior,” and we “gloss over the fact that the United States willingly enters into treaties that bind it.”  There is not a single sentence in the op-ed that actually engages any argument that I have made in my extensive series on Koh’s transnationalism. 

The op-ed also misrepresents what is at issue.  It is not true that Koh is merely advocating “the educational value of other countries’ experiences in interpreting our Constitution and statutes.”  And the debate over customary international law is whether such law has domestic status as federal common law; the Supreme Court’s long-ago declaration that “international law is part of our law” does not speak to that question.

Hollis and Borgen also mislabel Koh’s critics “isolationalists.”  The term “isolationist” conventionally refers to someone who disfavors American involvement with the world.  It does not speak to the distinct question whether and how international law is incorporated into American domestic law.  The idea that, say, Curtis Bradley, Jack Goldsmith, and Dick Cheney are isolationists is absurd.  Those who oppose Koh’s transnationalism are better referred to as nationalists, as Koh himself recognizes.  It’s particularly striking that Borgen, who recently labored under the misconception that “transnationalist” was an epithet invented by conservatives (when it is in fact a description that Koh embraces), would resort to flinging the cheap and mistaken epithet of “isolationist.”

Hollis and Borgen (like Koh and Justice Ginsburg and other transnationalists) also risibly invoke the Declaration of Independence in support of their transnationalism.  But the American revolutionaries observed that “a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation” from Great Britain, and one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.”  To find in the Declaration of Independence a justification for judicial dependence on, and importation of, foreign and international law is sheer sophistry.

Another Big Civil-Rights Argument before the Supreme Court This Week

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On Wednesday this week the Supreme Court will hear arguments in Northwest Austin Municipal Utility District No. 1 v. Holder, challenging the constitutionality of Section 5 of the Voting Rights Act. That’s the provision that requires certain jurisdictions (mostly but not exclusively in the South) to get the federal government’s okay whenever they want to make any change in any practice related to voting — from decennial redistricting to moving the polling place from the elementary school to the high school across the street.

The legal standard the Court has used in such cases is whether the challenged statute is “congruent and proportional” to the ends of the relevant constitutional provision, here the Fifteenth Amendment, which bans racial discrimination in voting. There are three ways in which Section 5 fails this test: (a) There is no rhyme or reason to the jurisdictions now covered (for example, the statute itself requires use of election statistics that are decades old: Texas is covered but not Arkansas, Arizona but not New Mexico, some New York City boroughs but not others, etc.); (b) it is extraordinarily intrusive in the kowtowing it requires from state and local jurisdictions to the federal government; and (c) it bans much that is not illegal under the Constitution, since the former covers anything with a racially disproportionate “effect” while the latter requires discriminatory intent (for example, the Justice Department has been urged, and the Obama administration is likely, to use Section 5 to block anti-voter-fraud measures on the theory that they “disenfranchise” a higher percentage of blacks than whites).

Were the issue merely the dry, legal one of whether we have congruence and proportionality here, five votes to strike down the law would be predictable. But we’re talking about a key provision of the Voting Rights Act, with all the history that this carries with it, which is likely to give all the justices some pause.

Yet in taking that pause the justices should bear in mind that it is precisely the ideals of the Voting Rights Act and the Fifteenth Amendment that will be jeopardized if they do not strike down Section 5. This statute is not only no longer congruent and proportional to the Fifteenth Amendment: By far its principal purpose is now to violate it.

That purpose is to require racial segregation of voters by means of racial gerrymandering. As the appellant’s reply brief says, Section 5 “is clearly in tension with the Fourteenth and Fifteenth Amendment guarantees — perhaps outright violating them [citation omitted] — rather than appropriately enforcing them.” This abuse cannot be waved away as a minor and unintended byproduct of Section 5, because the justices have expressed their own concerns about it and the amendments that Congress passed in 2006 show that it intends these abuses to be ramped up. Nor is this an abuse that can be managed by judicial oversight: There are thousands of Section 5 decisions made by the Justice Department, and for their own reasons both Democratic and Republican administrations like to use them to encourage racial segregation through racial gerrymandering.

Such segregation is not only offensive per se, but has divisive and poisonous effects. It discourages interracial coalition-building, marginalizes black politicians (particularly more conservative and Republican ones), polarizes districts and helps polarize parties, and encourages identity politics in an increasingly multiethnic and multiracial society that can ill-afford it.

In sum, the guarantees of the Constitution and the ideals of the Voting Rights Act all dictate that Section 5 has outlived its purpose. The Court should strike it down.

Highlights from the New Haven Firefighters Oral Argument

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I was traveling last week, but have now read the transcript of the oral argument in the New Haven firefighters case. The envelopes, please.

Best line: Chief Justice Roberts noting that, on the city defendants’ theory, “they get do-overs until it comes out right” (page 48), meaning that they can throw out test results and keep trying new tests until they get the politically correct results they are after. 

Most surprising: The response of the Obama administration’s lawyer suggesting that the Court bear in mind that “[o]ne of the purposes of the disparate impact test, as this Court has recognized, is as a prophylactic against intentional discrimination, to root it out . . .” (page 29). Surprising because it would (correctly) lead to a narrow construction of the disparate impact test.

Best insights (tie): Scalia observing that the part of the 1964 Civil Rights Act banning disparate treatment and the 1991 part banning disparate impact “are at war with one another” (page 29); and Roberts noting, “It seem to me an odd argument to say that you can violate the Constitution because you had to comply with a statute” (page 52).

Most refreshing: Breyer, alone among the liberals, asking an at least somewhat hostile question to the city’s lawyers (page 50).

Key discussion: Whether “racially conscious” decisionmaking might nonetheless not be “racially discriminatory.” Might, for example, rejecting a test because it leads to racially lopsided results — and instead choosing a test because it is just as good but leads to each racial group getting its share of promotions — fall into this category, at least if the choice is made before the first test is given and the top scorers are known?  The correct answer is that, in the unlikely event that two tests really are equally good but lead to racially different results, then the way the decisionmaker should decide between them is by . . . flipping a coin.

At least, that’s the only principled answer, although the Court is of course capable of drawing a line that is unprincipled but more politically palatable. 

But unprincipled, alas, it will be, and the slippery slope can be demonstrated in a couple of ways. Suppose that the diversity is achieved not by choosing between equally qualified tests but between equally qualified people (the situation in the Piscataway school board case the Court — almost — heard a decade ago, involving a decision to lay off a white teacher rather than an identically qualified black teacher in order to achieve greater diversity): Surely such a layoff must be considered racially discriminatory! Or suppose the test is chosen because the diversity is best described not as favoring the underrepresented but as hostile to the overrepresented, such as changing university admissions criteria not because more blacks and Latinos are desired but because “too many” Jews (or, nowadays, Asians) are getting in: Surely that must be considered racially discriminatory!

Spectral Vapors

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Proving (yet again) that he is a deeply silly man who is in way over his head when the Constitution is the subject, Arlen Specter has disgorged himself of some ill-digested thoughts on executive power in the New York Review of Books (lv David Freddoso at The Corner).  I couldn’t get past the amazing stupidity of this sentence beginning his fourth paragraph:

Further, I will reintroduce my legislation from 2006 and 2007 (the “Presidential Signing Statements Act”) to prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress.

Even Arlen Specter ought to understand that it is not possible, under the Constitution, to constrain by law the choice of materials employed by the courts in the course of explicating the meaning of statutes, or of the Constitution.  If a signing statement sheds useful light, it just does, and this Specter Act could not possibly prevent a court from acting in a way guided by that light.  What next: an act to ban citations to Blackstone, or to Black’s Law Dictionary? 

Was it Richard Feynman who would say of the most outlandish statements in science that they were “not even wrong”?  That’s the relation of Arlen Specter to the Constitution.  As the Scrapbook at the Weekly Standard might say, at this point it became an article I couldn’t finish.

UPDATE: No, it wasn’t Richard Feynman.  It was Wolfgang Pauli.

Re: A Vicious Lie

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Some quick follow-up (before I head to the airport) on Andrew Sullivan’s malicious and baseless claim that I am a “torturer”:

1. After troubling himself to do some actual research — research that should have preceded his mudslinging — Sullivan retracted his claim that I “appear regularly at the Corner defending torture,” and he also removed from his initial post his contention that I am a “torturer.” 

2. Sullivan states that the “factual question of [my] attendance at a meeting on interrogation techniques remains a matter of dispute between [me] and the Senate Committee’s report.”  Sullivan’s statement obscures the fact that the report did not name me.  In any event, I have been in touch with a committee staffer and expect that the committee will issue an appropriate correction in short order.

3. Scott Horton, relying on the same mistaken passage from the committee report, adds the baseless and libelous allegation that I am “presently melting [my] keyboard with defenses of the torture-enablers at National Review.”  It’s unclear what Horton is imagining.  As Sullivan’s own retraction backhandedly acknowledges, I have written little or nothing on the Bush administration’s interrogation policies (which I’m guessing is what Horton means by his reference to “torture-enablers”).  If I’ve been “melting [my] keyboard” with anything of late, it’s exposing what a threat State Department legal adviser nominee Harold Koh’s radical transnationalist views pose to basic American principles of representative government.  None of what I’ve written on Koh has addressed interrogation policies. 

Three weeks ago, Horton propagated a bogus claim (still apparently taken as gospel by some on the Left) that Senate Republican opposition to OLC nominee Dawn Johnsen and to Koh was motivated by the desire to “suppress[] critical torture memos from the Bush era.”  Horton now apparently regards any criticism of Koh as defense of torture.  That’s sure a lot easier than defending Koh and his views on the merits.

“Federalism” As a One-Way Street

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In his latest Chicago Tribune column, libertarian Stephen Chapman argues for the repeal of the 1996 Defense of Marriage Act (DOMA).  Appealing to the federalism created by the framers of the Constitution, Chapman says he’s in favor of “letting subsets of the national population get their way in their own locales.”  That’s what would be happening now, he claims, if it weren’t for DOMA, which withholds recognition of same-sex unions as marriages under federal law.  Never mind that in every state but Vermont where same-sex marriage has been adopted, it has been imposed by judicial fiat–hardly a case of “subsets of the national population get[ting] their way” in the republican fashion envisioned by the framers.  (Even in Vermont, the recent decision of the legislature occurred a decade after judicial blackmail forced the state to adopt civil unions that were marriages in all but name.)

Ignoring the deep involvement of judicial tyranny in this matter, Chapman calls for the federal government to return to its old “policy of staying the hell out” of an area traditionally governed by the states.  It would be best, he claims, to “leave it up to individual states to decide who may wed–and then honor those diverse choices.”

That sounds like Chapman wants the states to be free to decline recognition of same-sex marriages contracted elsewhere, doesn’t it?  That’s what the other half of DOMA does, so maybe Chapman wants to repeal only part of the act.  Remember, DOMA does two things: it defines marriage, for purposes of all federal laws and the rights and burdens derived therefrom, as between one man and one woman; and it permits states to decline to recognize marriages not fitting that definition if they are contracted in other jurisdictions.

So does Chapman want to repeal the first of these provisions, and keep the second?  No.  By the end of the column, he’s complaining about the non-recognition provision as well.  “Usually, states are obligated to enforce contracts made in other states,” and that’s the rule that he argues should prevail here too.  So much for federalism, which in this respect is not offended by DOMA but protected by it.

“Usually” is not quite “always,” of course.  For many years, states have been permitted to deny recognition to marriages contracted in other states (or foreign jurisdictions) if they had strong “public policy” reasons for the denial.  Cousins too closely related, or spouses too young, could sometimes trigger trouble for couples moving from one state to another, or even just passing through.  The validity of their marriage in its place of origin didn’t always settle matters.  “Back in the segregationist years, Southern states often honored interracial marriages transacted beyond their borders,” Chapman notes.  But surely he knows that “often” isn’t “always” either–the Lovings, a Virginia couple whose case led to the invalidation of anti-miscegenation laws in the Supreme Court, were validly married in D.C.

All these examples of non-recognition, of course–the arguably defensible and the indefensible alike–involved persons whom everyone understood to be capable of marrying each other.  They were all opposite-sex couples.  Same-sex marriage introduces the problem, for the first time in the known history of any civilization, of the legal uniting in “marriage” of persons hitherto universally thought to be incapable of marrying each other.  Most Americans still think that, although a determined band of liberal elites and a number of compliant “progressive” judges have foisted the opposite view on a handful of states.  That’s why DOMA was passed: it provides every state holding fast for conjugal marriage with a shield behind which to protect its institutions, decisively bolstering its “strong public policy” reasons for non-recognition of same-sex unions contracted elsewhere.

The universal adoption of same-sex marriage in the U.S. may happen despite DOMA.  (That’s why some of us want a federal marriage amendment.)  It is virtually certain to happen, and with astonishing speed, if DOMA is repealed.  And the American people will have little or no say in the matter, in either their states or the councils of the national government.

Stephen Chapman is too smart not to know this.  He claims that the diversity of federalism will “let a hundred flowers bloom” after the repeal of DOMA.  Not on your life.  His “federalism” would mean uniformity, not diversity–the rapid victory of same-sex marriage nationwide.

If Chapman reminds you of another Stephen from Illinois–a senator 150 years ago named Douglas–there’s a reason.  Douglas was all for local “subsets of the national population get[ting] their way” on the slavery issue.  But Abraham Lincoln smoked him out, noting that his “declared indifference” about the spread of slavery really amounted to a “covert real zeal” for seeing it legalized everywhere.  Stephen, meet Stephen; you’re peas in a pod.

Time‘s Cartoonish Coverage of Koh Nomination

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In an article that may be only on Time’s website, reporter Massimo Calabresi (son of former Yale law school dean Guido Calabresi) examines the nomination of Yale law school dean Harold Koh entirely through his own distorted understanding of Republican party politics.  On one side are big, bad Glenn Beck and other “activists” who “want to harness Beck’s populist appeal to stay on the offensive for a variety of causes.”  On the other side are the “traditionalists,” the supposed “true conservatives,” who support Koh and “want to retrench around sober messages of lower taxes, smaller government, and American supremacy.”  (Ah, yes, what better way to promote “American supremacy” than to support a radical transnationalist who opposes the very idea.)

In Calabresi’s mistelling, the charge that Koh wants to “subjugate the United States constitution to foreign law” is just “fairly standard ratings-chasing melodrama”—rather than a straightforward account of Koh’s own writings that none of his supporters has seriously contested.  Ignoring my detailed account of Koh’s record, Calabresi finds noteworthy the fact that I “appeared on Beck’s program” (for a few minutes), and he sloppily portrays me as an “activist[]” “who opposes most U.S. treaty involvement.” 

It’s not surprising that supporters of Koh—including, evidently, Calabresi himself—would ignore Koh’s radical transnationalist views and the countless opportunities that he would have to implement them as State Department legal adviser.  Indeed, the real divide between Republicans who support Koh and those who don’t appears to be between those who haven’t bothered to acquaint themselves with Koh’s transnationalist views (and his apparent willingness to resort to deception to advance them) and those who have examined them. 

I don’t mean to foreclose the possibility that a conservative who believes (as I do) that a president is entitled to considerable deference in his executive-branch picks could conclude that Koh should be confirmed.  But anyone adopting that standard of deference can intelligently apply it only after seriously reviewing Koh’s record.  Instead, some of Koh’s Republican supporters are misusing the standard of deference as an excuse not to take a serious look at Koh’s record—and their support for Koh has the foreseeable effect of discouraging the Senate from giving Koh the careful scrutiny he requires.  So much for the public interest in being informed about who is exercising governmental power.

Calabresi can’t even get the simplest facts right:  He states that “a committee vote on Koh’s controversial nomination [is] coming Tuesday” (i.e., tomorrow), but it’s the committee hearing, not the vote, that occurs tomorrow.

Harold Koh, the Iraq War, and War-Crimes Liability

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State Department legal adviser nominee Harold Koh believes that notwithstanding congressional authorization, the Iraq war “violate[s] international law” because the United States did not receive “explicit United Nations authorization” for the war.

I’d be interested to learn how (apart from crass political considerations) Koh reconciles his position on the Iraq war with his support for President Clinton’s war in Kosovo.  The Kosovo war had a much weaker basis in international law than the war in Iraq (which, among other things, had at the very least a strong claim of having implicit United Nations authorization).  And, as a matter of domestic law, the Kosovo war was not authorized by Congress.

For present purposes, I’d like to ponder the implications of Koh’s position that the Iraq war violates international law:

1. Doesn’t it follow that Koh must maintain that President Bush is an international war criminal because he commanded an invasion of Iraq that, in Koh’s view, violated international law?

2. Doesn’t it follow that Koh must maintain that all members of Congress who authorized the war in Iraq and who did so without maintaining that additional United Nations authorization for the war was necessary are international war criminals?

3. Doesn’t it follow that Koh would maintain that all American corporations who assisted the war effort are liable in damages in Alien Tort Statute lawsuits for aiding and abetting the commission of war crimes?

This Day in Liberal Judicial Activism—April 26

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1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods.  There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter.  Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist.  Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors.  But after Brewington stabs Majors, Middlebrooks does so as well.  Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death.  On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence.  In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution.  (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.)  Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally:  “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.”  Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit.  Meanwhile, on remand, Middlebrooks is again sentenced to death.  In 1999twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.   

This Day in Liberal Judicial Activism—April 25

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1906—William J. Brennan, Jr., is born in Newark, New Jersey.  (For more on Brennan, see This Week entries for March 19 and March 22.)

1996—More Newark:  The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego.  A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.” 

Six weeks later, This Week all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton.  In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign.  (How could anyone withstand Bob Dole’s withering criticisms?)  In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.  (Both letters are here.)

A Vicious Lie

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Andrew Sullivan baselessly and viciously contends that I “regularly defend[] … torture.”  He also claims, mistakenly, that, when I was at OLC, I attended a meeting at which CIA interrogation techniques were discussed and that I am a “torturer.”

I will state categorically that I never attended the meeting that Sullivan refers to and that I never had any knowledge of or involvement in any of the matters involving interrogation techniques (matters that were, of course, highly classified).  I also have never defended torture.

I am out of town to attend a family funeral and will not be able to respond in a timely manner to any further lies like these.

More on the Iowa Marriage Ruling

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Two and a half weeks ago, I had a piece at the Witherspoon Institute’s Public Discourse site, about the Iowa Supreme Court’s same-sex marriage ruling.  But there was much, much more that could have been said about that case.  Today at Public Discourse, Jennifer Roback Morse says a lot of it, under the apt title “The Institution Formerly Known As Marriage.”  Here’s a very brief sample:

The essential purpose of marriage is to attach mothers and fathers to their children and to one another. Absent this purpose, we would not need marriage as a distinct social institution.

In those two sentences are more wisdom than in the 69 pages of the Iowa ruling.  But read the whole thing.

Koh Series Collection

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The fourteen posts in my series on Harold Koh’s transnationalism are now available together here on the Ethics and Public Policy Center’s website.  (I have a number of other posts on Koh that aren’t strictly part of the series, including Harold Koh, Serial Violator of International Law; they might be added to that same EPPC page soon.)

Andy McCarthy on Harold Koh

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From the road, let me quickly call your attention to Andy McCarthy’s excellent essay on Harold Koh in the current issue of National Review.  An excerpt:

“On the day after the [9/11] attack,” Koh wrote in 2003, “George Bush could have flown to New York to stand in solidarity with the world’s ambassadors in front of the United Nations.” In reality, the U.N. building and its habitués were not available for a photo-op at the time, owing to the inferno a bit farther downtown. But reality is not Koh’s usual stomping ground.

He prefers the transnational-progressive vision of a post-sovereign order in which terror networks and rogue states are to be controlled by the luminous power of the law. Not American law, or even international law, but global law, first conceived by progressive academics (for instance, Harold Koh), then applied, and supposedly enforced, by supra-national tribunals. Faced with a terrorist atrocity, Koh argues, President Bush should have forgone all that national-defense mobilization andsupported the International Criminal Court as a way of bringing the Osama bin Ladens and Saddam Husseins of the world to justice.”

And Andy’s bottom line:  “Global governance is not American governance — and the difference will make the world a very dangerous place for Americans.”

Many Happy Returns

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Amidst all the other news of the week, I let John Paul Stevens’ 89th birthday go right by me.  (It was Monday.)  As Robert Barnes of the Washington Post reports, Stevens is on course to set two records.  If he serves until at least February 24, 2011, he will pass the mark set by Oliver Wendell Holmes, Jr. for the oldest serving justice.  If he serves until mid-July 2012, he will break the record of William O. Douglas (whose seat Stevens filled) as longest-serving justice.

I want Justice Stevens to go the distance here.  Really, I do, and not just because I like to see records fall.  If he makes it until the mid-summer of 2012 (and still later would be better), the chances improve that Stevens will be replaced by a Republican challenger who defeats Barack Obama that fall.  Even with Obama still in office in the final months of 2012, a good case could be made in the Senate for not letting him fill a vacancy while the election hangs in the balance–let alone as a lame duck.

Of course, it would be better still if Stevens hung on until 2013.  Here’s hoping it doesn’t take until 2017 to get the White House back.  By then Stevens would be pushing 97.  And even for such a dedicated Republican appointee, that would be a strain.

The Confirmation Rush Continues

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On April 2, President Obama nominated federal district judge Andre M. Davis to a vacancy on the Fourth Circuit that has been open since 2000 (and to which President Clinton had nominated Davis in mid-October 2000, far too late to have any reasonable basis to expect action on the nomination).  Despite the fact that Davis has more than 14 years of district-court rulings for committee staffers to review, Judiciary Committee chairman Leahy has scheduled a hearing on Davis’s nomination for next Wednesday, April 29—less than four weeks after his nomination. 

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.

At that same proceeding on April 29, the Judiciary Committee will conduct its second review (after the sham first) of David F. Hamilton’s nomination to the Seventh Circuit and its review of the nomination of Thomas E. Perez to be AAG for the Civil Rights Division.  This review of Hamilton comes only 43 days after his nomination, despite the fact that Hamilton has authored more than 1200 opinions in nearly 15 years as a federal district judge and submitted approximately 2,000 pages of speeches and articles. 

Professor Barack Who?

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During the presidential campaign, I alternately ground my teeth and laughed uproariously every time I heard Barack Obama described as a “former professor of constitutional law” on the basis of several years of part-time lecturing at the University of Chicago Law School.  Obama supporters assured us that never had any presidential candidate before Obama been so wise, so learned, so scholarly in his knowledge of the U.S. Constitution (no, not even James Madison, Abraham Lincoln, William Howard Taft, Woodrow Wilson . . .).  Why, he wouldn’t even need any help vetting Supreme Court nominations, but could do the work all by his lonesome.  He could even appoint himself!  And he probably should, except that we need him so much as president!!  Or wait, couldn’t he do both jobs at once?  Is that permitted under the Constitution?  Why, ask Obama–he’ll know if anyone will!

So it was a truly delicious moment to read the lead from William McGurn’s Wall Street Journal column today, in which he reproduces an exchange from one of last week’s White House press briefings:

Helen Thomas: Why is the president blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there . . .

Robert Gibbs: You’re incorrect that he taught on constitutional law.

My understanding was that lecturer (later “distinguished lecturer” when he became state senator) Barack Obama usually taught a course on equal protection and civil rights, with perhaps a course on some civil liberties topic thrown in for variety now and then.  If Gibbs was denying Obama’s “constitutional law” teaching experience because none of his courses ever carried that phrase in its title (a phrase commonly used in some schools for the course on basic concepts of judicial power, separation of powers, and federalism), then he is a parser of words of Clintonesque daring and shamelessness.  For there is no question that the common thread of all Obama’s teaching, in every course he ever taught, was that they were all on constitutional law subjects.  It’s not like he ever taught torts or contracts, for pete’s sake.

But just have Helen Thomas throw one of her patented fastballs at Barack Obama’s head, and designated hitter Gibbs can’t duck fast enough.  Priceless.

“Torture” and the Impeachment Power

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A reader sends along a link to an article on the Law 360 website (subscription required to read the full story), describing an effort among some legal academics and advocates to get the House of Representatives interested in impeaching Judge Jay Bybee of the Ninth Circuit.  Bybee was the head of the Office of Legal Counsel whose signature is on the earliest of those memos about interrogation that the Obama administration released last week (only the 2002 memo; in 2003 Bybee went on the bench).

Ordinarily the impeachment power is employed for the removal of someone who has committed an offense while in office.  Federal judges have tenure “during good Behaviour,” and, like executive branch officials, may be impeached and removed for “Treason, Bribery, or other high Crimes and Misdemeanors.”  I have never heard of a case being brought against a judge or any other official for acts pre-dating his service in office.

But suppose someone took or gave a bribe at some time prior to his appointment as a judge, and this fact, unknown at the time of his appointment, were discovered afterward?  Only the impeachment power could forcibly remove the judge unwilling to step down, and I doubt anyone would question the propriety of the power’s use.

So the campaign against Judge Bybee comes to this: do the Democrats really want to have a debate in the open about this?  When I read pieces by Michael Hayden and Michael Mukasey, by Marc Thiessen, by Andy McCarthy, and by Rich Lowry, I doubt very much whether Nancy Pelosi and Harry Reid will be interested in letting the legal-academic left have its way with their party.  They’d much rather have a lot of hyperventilating about “torture” without putting the question to an actual evidentiary test.

Contributing to the hyperventilation are the editors of Law 360, who run a supposed news item with sentences like this one: “Bybee signed off on specific torture methods . . .”  They should get out their dictionary and look up the word “conclusory.”

Powers and Rights

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Over at The Corner, Mark Hemingway unnecessarily submits to being upbraided by a lawyer for using the word “right” when he should have said “power” in reference to the authority of a state to regulate gun ownership.  Mark’s correspondent says this distinction is “fundamental” and that we must never, ever speak of a government’s “right” to do anything–that only individuals have rights.

But this allegedly fundamental distinction is a johnny-come-lately in politico-legal discourse.  Thomas Hobbes, John Locke, William Blackstone, framers of the Constitution including the authors of The Federalist–all spoke of the “rights” of governments to do things, or the rights that attached to political offices.  By the time of the founding, it was becoming uncommon to speak of individuals having “powers,” and so the distinction was starting to take hold on that side of the ledger.  But right through the founding period and beyond, the word “right” was often used synonymously with “power” where governments were concerned.  There may be a lot that’s wrong with the phrase “states’ rights” in our history, for instance–but only with its use, not with the phrase itself.

So Mark, you were only being old-fashioned in referring to a “right” of a state to legislate.  And what conservative could fault you for being old-fashioned?

Judge Vanessa Ruiz

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The Legal Times profiles Vanessa Ruiz, a judge on the D.C. Court of Appeals that some are pushing for a seat on the U.S. Court of Appeals for the D.C. Circuit. The article also mentions two others that may be under consideration for spots on the the D.C. Circuit: private attorney Joseph Sellers, a top employment law plaintiffs lawyer (and alum of a very fine law school), and Harvard law professor Martha Minow.

Paul Mirengoff on OLC Nominee Dawn Johnsen

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Over at Power Line, Paul Mirengoff is offering a series of fine posts (including here, here, here, and here) making a strong case, largely on war-on-terror grounds, against OLC nominee Dawn Johnsen.

Re: Calls for Real Debate on Harold Koh

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In my series on Harold Koh’s transnationalism over the preceding two weeks (outline with links available at the bottom of this post), I have published some 11,000 words across fourteen blog posts on Koh’s misuse of customary international law, treaties, and constitutional interpretation to advance his transnationalist agenda.  I have also written several other posts related to Koh’s nomination, including two posts (here and here) on Koh’s championing of the Alien Tort Statute .

Ten days ago, I highlighted the calls by international law professors Julian Ku and Kevin Jon Heller for real debate on Koh.  Since that time, I’m aware of only one blog post (which I addressed here) and some comments on another blog post (which I responded to on that blog’s site, as I discussed here) that undertook substantive engagement with my arguments.  In response to one of the comments, I added an elaborating footnote to my post on Koh’s Senate testimony about CEDAW.

Meanwhile, on Opinio Juris, international law professor Ken Anderson yesterday stated his “general agreement with Koh’s critics including Andy McCarthy, Ed Whelan, and John Bolton about the broad propositions of transnationalism.” 

Is anyone going to defend Koh’s transnationalist views against the detailed criticisms that I have offered? 

Newsweek on Harold Koh

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In the new issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have an article on Harold Koh’s nomination to be State Department legal adviser.  As regular readers of Bench Memos know, Taylor is one of my favorite journalists—regularly intelligent, insightful, and fair, whether or not I agree with him in every respect.  And there’s much to commend in this article, including its acknowledgment that I raise “legitimate questions” about Koh, its exposition of many of Koh’s views, and its conclusion that “conservatives have a point that Koh and the other ‘transnationalists’ are using their legal theories to advance a political agenda.”  That said, I have a correction and a broader comment.

First, the correction:  Taylor and Thomas assert that in his 2002 Senate testimony on CEDAW, “Koh stressed that [the CEDAW committee] reports are not binding law.”  [Update (4/22):  In an e-mail to me, Taylor has graciously acknowledged that his and Thomas’s assertion was erroneous.]  In fact, Koh did not even acknowledge the existence of the reports that undercut his testimony, much less try to explain what weight, if any, their interpretations bore.  That’s why law professor Julian Ku, in marked understatement, said that Koh was “plainly in advocacy mode, not scholarship mode,” and called Koh’s testimony “not his best moment” and “sloppy.”  And that inexplicable omission is part of what underlies my assessment, explained more fully here, that Koh deliberately chose not to be forthright with the Senate Foreign Relations Committee. 

That correction feeds into a broader comment:  I believe that Taylor and Thomas significantly understate how radical and threatening Koh’s views are.  They write, for example, that if “taken to their logical extreme,” Koh’s views “could erode American democracy and sovereignty.”  But one doesn’t have to make logical extrapolations from what Koh has written to discern that threat; it’s plain from his very words (as I spell out in my series of blog posts—available in outline form at the bottom of this post).  The only question is whether he could and would implement his views as State Department legal adviser—and (as I explain in that same post), he would have ample opportunities to do so.

Taylor and Thomas conclude that the Senate should confirm Koh because he is not “off the wall.”  I generally agree with Taylor and Thomas that a president is entitled to substantial deference in his executive-branch picks, but I think that a thorough examination of Koh’s views shows that they are far more extreme than anything that President Obama advertised when he ran for office.  I started my series of posts not particularly interested in the specific question whether Koh should be confirmed (in part because, absent a great awakening, it’s a virtual certainty that he will be) and far more interested simply in exposing how radical his views are.  But the more I explored, the more extreme Koh turned out to be.

In addition, while I’m sure that Koh has lots of admirable qualities, I believe that there are serious questions about his character.  Several folks who have had dealings with Koh—including folks who are not conservatives or Republicans—have privately attested to me that they have witnessed in him the same sort of bullying and intellectual dishonesty that his CEDAW testimony reflects—testimony, not incidentally, before the same Senate committee that will conduct his confirmation hearing. 

Harold Koh, Serial Violator of International Law

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That’s the gist of this interesting post by Eric Posner (on the Volokh Conspiracy) concerning Harold Koh’s “champion[ing] of the modern (post-1979) use of the ATS [Alien Tort Statute] to impose tort liability on international lawbreakers” (the topic of this post of mine from yesterday).  As Posner explains:

Many (most? all?) foreign international lawyers believe that ATS litigation violates international law. They believe that the American tort system is a lunatic asylum in which international law undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable—wild-eyed, harboring delusions of grandeur, and babbling a pidgin that incorporates strange American legalisms and pieties. Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them. Both groups believe ATS litigation reflects the typically American blend of naiveté, arrogance, and power that ends up tying foreigners to the rack of American ideals.…

Koh has long supported a type of litigation that probably breaches international law and in any event universally offends foreign opinion.

Indeed, three prominent judges on the International Court of Justice—the president of the ICJ, the English barrister Rosalyn Higgins, and the American judge and human-rights law expert Thomas Buergenthal—have criticized the “very broad form of extraterritorial jurisdiction” that American courts exercise in ATS litigation: “While this unilateral exercise of the function of the guardian of international values has been much commented on, it has not attracted the approbation of states generally.”  Democratic Republic of the Congo v. Belgium (Case concerning Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3 at 77 (para 48) (concurring opinion of Judges Higgins, Kooijmans and Buergenthal).  Further, the House of Lords has declared ATS litigation “contrary to customary international law.” Jones v. Saudi Arabia, [2006] UKHL 26 (para 99).  And, as this Solicitor General’s brief makes clear, Switzerland has condemned the assertion of ATS jurisdiction over its own nationals with regard to their conduct in a third country as “inconsistent with established principles of international law,” and the United Kingdom and Germany have similarly protested that such assertion “infringes the sovereign rights of States to regulate their citizens and matters within their territory.”

These facts provide further support for the notion (set forth by Justice Scalia in his dissent in Roper v. Simmons) that Koh and other American transnationalists use international law selectively as an ideological weapon:  they invoke it when it advances their own hard-left ideological agenda and ignore it when it doesn’t. 

Thoughts on Ricci v. DeStefano

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This is the much-watched case that will be argued next Wednesday, April 22, in which the City of New Haven threw out the results of its firefighter-promotion exam because of its politically incorrect results (too many whites, and not enough African Americans, did well). The 19 whites and 1 Latino firefighter thus denied promotions sued, alleging violations of the Constitution’s Equal Protection Clause and Title VII of the 1964 Civil Rights Act.

The city has been laboring mightily to recast the case now that it is before the Court, suggesting that its officials had real legal qualms about the legality and soundness of the underlying exam. But, in fact, it conceded below that the test was job-related, and even the Obama administration acknowledges that there is much in the record to suggest that any supposed misgivings about the test were a pretext for simple, politically driven discrimination. And, as the Center for Equal Opportunity pointed out in its amicus brief (filed by the Center for Individual Rights and also joined by the American Civil Rights Institute), so long as the city was motivated in part by discrimination, then Title VII’s section 703(m) makes explicit that it is liable.

But let’s focus on an admittedly thorny legal problem at least lurking in the case, and that the Court ought to provide guidance on if it remands: What if an employer decides to throw out the results of a test because of a fear that those results might be challenged as violating section 703(k) of Title VII, the notorious “disparate impact” provision added in 1991?

It’s a thorny problem because section 703(k) creates an internal inconsistency in Title VII: Over and over again the statute says that employers must ignore race in making employment decisions, and over and over again the statute says that reliance on tests is perfectly fine and that racial balancing is not what Congress has in mind — but then, in section 703(k), employers are also told that if they ignore the racial results of a test (or other selection device), they might be held liable, unless they can show that the test is “job related for the position in question and consistent with business necessity.” 

So an employer can be sued for ignoring the racial results of a test, but isn’t it racial discrimination if his decision about which test to use is driven by the race of who will or won’t be selected if it is used? Of course it is, as would be obvious if the shoe were on the other foot (always a useful exercise when analyzing cases like this): If an employer threw out a test because he didn’t like the fact that African Americans had won too many promotions, would anyone deny that his decision would raise legal problems under the rest of Title VII?

The city and its allies suggest that employers must be given plenty of leeway to ignore tests and gerrymander selection procedures in order to avoid any result that might lead someone, somewhere, sometime to sue them under section 703(k). But that cannot be right. Even putting to one side that the facts of this case show there are plenty of employers, private and especially public, whose celebrations of “diversity” make clear they are not particularly trustworthy, any selection device other than a lottery is going to have a disparate impact on some demographic group. So the standard the city wants would effectively allow employers to implement de facto quotas to achieve whatever level of racial balance they want. What’s more, this balance-champing will sometimes result in discrimination against minority groups. See, e.g., Frank v. Xerox Corp

No, the only way to square section 703(k) with the rest of Title VII (and with the Equal Protection Clause) is to interpret it strictly. An employer can be held liable under it only if “a particular” selection device is identified that “causes” a pronounced “disparate impact,” and the leeway given to the employer is for him to show the “job relatedness” of the device (for example, formal “validation” is not required). And an employer seeking to use potential liability under section 703(k) to justify disparate treatment under the rest of Title VII must show not just that he might be liable but that he had a subjective belief that was objectively justified that he would be liable under the statute as so interpreted. Indeed, if section 703(k) is treated as an evidentiary device for challenging selection devices that are themselves likely to have been adopted or continued for discriminatory reasons, this will alleviate the tension it would have with the rest of Title VII (and the Equal Protection Clause) were it interpreted to provide a shield for racial balancing.

The Court can provide employers this assurance: If they were not motivated by race, and were simply trying to hire the best people for the job, then they will not be held liable under Title VII.  But if they are trying to achieve a particular racial mix — whether politically correct or incorrect — then they will be legally vulnerable. Section 703(k), and the Court’s rulings in cases like Weber, should be read as allowing race-consciousness only to avoid or remedy discrimination — not to permit new discrimination.

This Day in Liberal Judicial Activism—April 20

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2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech.  The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event.  The school ordered Harper not to wear the T-shirt.  Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.”  As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.”  But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints. 

Harper’s complaint was rendered moot after he graduated from high school.  In March 2007, the Supreme Court granted Harper’s petition for certiorari and vacated (i.e., wiped from existence) the Ninth Circuit’s ruling. 

Harold Koh, Judge-Made Foreign Policy, and Redistribution of Wealth

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Today’s Washington Post carries this op-ed by Duke law professor Curtis A. Bradley and Harvard law professor Jack L.Goldsmith criticizing a recent court ruling that expanded aiding-and-abetting liability under the Alien Tort Statute of 1789 to saddle American corporations that did business with apartheid-era South Africa with massive liability for South Africa’s human rights violations during that era.  According to Bradley and Goldsmith, the current South African government opposed the litigation, as did the Bush administration, citing the risk of adverse foreign-policy consequences.  Nonetheless, a federal district court “supplanted its foreign policy views for those of the federal government and refused to respect South Africa’s efforts to move its society forward.”  In so doing, the court also exposed these corporations to “crass retroactivity” by subjecting them to legal liability for transactions that were not within the scope of aiding-and-abetting liability at the time they took place.

As Bradley and Goldsmith point out, now that Harold Koh is slated to be State Department legal adviser, it’s unlikely that the Obama administration will seek reversal of rulings like this.  Koh, “an intellectual architect and champion of the post-1980 human rights litigation explosion[, …] joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.”  (Koh, presumably, would recuse himself from any involvement as a governmental actor in this particular case.) 

Even beyond basic questions of who properly makes American foreign policy and beyond concerns of fairness, American corporations and their shareholders, customers, and employees—in short, most Americans—ought to recognize their strong interest in not having Koh keep the floodgates open to litigation of this sort.  It’s worth noting that among those who have countervailing economic interests are the outside law firms that make a killing representing corporate defendants in Alien Tort Statute actions. 

This Day in Liberal Judicial Activism—April 19

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1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.”  The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”  Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties.  “The river as plaintiff speaks for the ecological unit of life that is part of it.”  The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.”  “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing.  Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.   

Santorum on Filibuster “Folly”

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Former Senator Rick Santorum says Republican Senators should stop talking about potential filibusters of Obama judicial nominees, according to this report.  Such talk is “folly,” he says, because there is no chance of any filibuster effort actually succeeding.  Getting Republican Senators to make judicial nominations a priority will be hard enough as it is, he cautions.