This Day in Liberal Judicial Activism—March 15


1933—Ruth Joan Bader is born in Brooklyn, New York.  At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero:  “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”

Compare and Contrast


On the prospect of a D.C. House seat, a defense of the idea by Kenneth Starr and Viet Dinh, and an attack on it by David Rivkin and Lee Casey.  You can probably guess where I come down if you’ve visited Bench Memos very much.  This one’s too easy.

My Bad


A reader points out that in a blog post yesterday, I somehow missed the fact that the New York Times did indeed identify M. John Berry, the president’s choice to head the Office of Personnel Management, as gay.  I said the Times omitted this, and even implied suppression of that fact.  I was wrong.  I apologize to the Times, and to our readers.  I still think it bears watching just what the Obama administration will do about DOMA and federal employee benefits.  But it would bear watching, given the president’s commitments, no matter what the sexual preference of his appointee to OPM.

Nature and History in American Grammatical Development


(Sorry, just a play there on my favorite recent book on American politics.)  Ed, at the risk of sending our regular readers screaming off to other sites, I’ll reply to your very good questions:

1.  It’s not just my “embrace of arbitrary convention” that is of interest here.  It’s everyone’s.  That’s what makes it convention–and what constitutes the nexus where nature and convention seem to touch, as a convention becomes “second nature.”  (Far more interesting is your knowing deviation from it, with the costs and risks in misunderstanding that accompany it.)  But I take it you are more interested in the convention’s arbitrariness.  In matters of grammar, some conventions are rooted in the nature of the language and its own internal logic; others are wholly arbitrary.  I think that putting periods and commas inside quotation marks falls in the latter category–the “merely” arbitrary.  Some rules may even inhabit a third category: the arbitrary convention that runs against the grain of the language’s nature.  In that category, for instance, I would put the rule against split infinitives (an odd import from the alleged logic of another language altogether but wholly arbitrary in English, and rather a bother).  In general I obey this rule anyway because it’s been around a long time and one is never thought a boob or a boor for obeying it.  What irks you, I think, is that you see the rule on quotation marks in this third category and want a rule that responds to what you see as the language’s logical nature.  Rebelling against current practice, however, causes all sorts of (mis)perceptions that you don’t know what you’re doing.

This is a long way of saying in answer to your question that yes, I obey all conventions (even if I sometimes treat Stop signs like Yield signs) while feeling free to complain about them if I don’t like them.  Since usage evolves, some conventions are in process of contestation–formation of possessives where there is a terminal “s,” or the barbaric pluralization of verbs after “everyone,” as you note.  While such things are contested I will, in true conservative fashion, stick to the old way.  One is never thought incorrect to do so, only (at worst) old-fashioned.  And as long as I contest them, they remain contested and not settled.  So there.

2.  Your way with possessives may indeed be cleaner and more “rational.”  This is not sufficient to constitute a recommendation.  See Burke.

3.  For the principles of my attachment to the arbitrary, see number 1 above.

4.  Your “humble gropings” are, to the contrary, a form of proud defiance of the “organic community.”  You might be praised for your bravery, but as Aristotle taught, courage can shade over into foolhardiness.  I repeat that how others perceive you when reading is pivotal here.  The writer should not go out of his way to be thought ill of (ouch, a dangling preposition) as a writer.  We expect to be rebuked for our opinions, but not for our periods.

5.  The good judge was possessed of very Minor Wisdom indeed!

All in good fun, Ed.  Now we should return our readers to their regularly scheduled programming!

Re: Punctuation Equilibrium


Matt, I have some questions and comments about your pointed post:  

1.  I’d like to probe the limits of your embrace of “arbitrary convention”.  Assume that the convention had developed that the possessive singular of nouns ending in “ss” is formed merely by adding an apostrophe (without a further “s”).  You agree with me that that form is grotesque, and I’m guessing that you also agree that it is (as the author of the essay I linked to explains) “completely illogical”.  Would you, in my hypothetical, nonetheless embrace the convention?  Would you consider it illegitimate to combat it?  (And please don’t contend that such an unsound convention couldn’t possibly have developed.  Worse conventions, on matters more important than punctuation, obviously did.) 

Or consider the ongoing collapse of the American convention that “everyone” requires a singular pronoun and the developing convention that permits “everyone” to be matched with “their”.  (Grammar of course evolves, as the playful title of your post suggests.)  Once that new convention is established, must you acquiesce in it? 

2.  You label as “arbitrary” the convention that commas and periods are inserted inside the quotation marks, and, in comparing me to Hobbes, you seem to agree that my practice is “clean[er]” and more “rational”.  Do you in fact agree? 

3.  Depending on your answers to the foregoing questions, I wonder if your embrace of arbitrary conventions is less categorical than your post would suggest and instead turns on a qualitative judgment about how illogical the arbitrary convention is.  (To be clear:  I would find such a position eminently reasonable.)  You and I may then simply have different judgments on where to draw the line. 

4.  I think that your “Hobbesian” epithet is unfair.  Your own account of Hobbes indicates that he favored “commands of an absolute sovereign from on high”.  Beyond not having the “sovereign authority to enforce [my] will”, I’m not calling for any authority to impose my view.  I’m instead engaging in my own “humble gropings” towards a better practice for the “organic community”. 

5.  I hadn’t been aware that there is any precedent for my practice.  But a former law clerk to the venerable Judge John Minor Wisdom has just informed me that Judge Wisdom employed the same practice.  Here’s the first example I ran across (from a 1986 opinion by Judge Wisdom): 

Indeed, “prior restraints upon speech and publication are the most serious and least tolerable infringement on First Amendment rights”. 

So even if my practice is “unconservative” (in not adhering doggedly to arbitrary convention), there is certainly Wisdom in it.

Ginsburg’s Hint?


According to this report:

In a question-and-answer session, [Justice Ginsburg] said the nine justices only take pictures together when a new member is added. She said: “We haven’t had any of those for some time, but surely we will soon.”

That seems quite a strong statement that Ginsburg expects a vacancy no later than this summer.  (One could imagine that Ginsburg has a longer time horizon in mind when she says “soon”, but that seems difficult to reconcile with her concept of “some time” ago:  Justice Alito joined the Court just over three years ago.)

Punctuation Equilibrium


Ed, I am dizzy from the effect of your arguments about why “the American convention on quotation punctuation [is] seriously defective.”  Let me respond along several fronts.  (Like you, I will counsel readers uninterested in these things to browse somewhere else, like The Corner, where they deal with trivia like the national debt and creeping socialism.)

1.  Your first argument is that “when the closing period or comma is not in the original, placing it in quotes strikes me as a false statement.”  But there is no reason it should strike you or anyone else that way.  That’s the whole thing about an arbitrary convention: one simply learns it by rote (like looking to the left first when stepping off a curb on an American two-way street, which can you get in trouble at a British kerb), and habituates oneself to what it signifies and doesn’t signify.  The placement of commas and periods inside quotation marks signifies nothing at all, and therefore is incapable of being either false or true.  It is simply what one does.  On the other hand, the placement of question marks and exclamation points inside or outside quotation marks does matter in American convention.  Our usage has decided that signifies something.  You want periods and commas to be equally significant, and then we could say they are used truly or falsely.  At the moment we cannot say so.

2.  You follow this with a faulty comparison, saying that some mere conventions (e.g., “Good morning!  How are you?”) are a way of “facilitating pleasantries,” but that putting periods and commas inside quotation marks only produces confusion.  But as I argue above, to those with correctly formed habits of mind about these things, no confusion whatever is produced.  To the contrary, it is your iconoclastic practice that sows confusion: “Is he careless?  Doesn’t he know better?  Why does he get it right sometimes and not others?  Should I say something to him about it?”  Future readers of your work who are unaware of your deliberate defiance, much less of the reasons for it, will think these things, and worse.  This is the polar opposite of facilitating pleasantries.  It makes of oneself a grammatical porcupine, approached with extreme caution.

3.  Your second argument is really a variant of the first.  You say “the convention causes goofy results,” for instance when a judge writes:

The question in this case is the precise meaning of the statutory term “person.”

You say that “person.” is not what we want to know about, rather “person” is.  But no one, absolutely no one, thinks that “person.” has a meaning that differs in the slightest from “person,” (oops, watch that comma!) because the period (see above) signifies nothing whatsoever, except that the writer knows that his own sentence should close with a period.  Here you have created a problem where none exists.

4.  A final word about your “experiment” with “unconventional practice”: it is, I think, unconservative.  (And I know them’s fightin’ words ’round here, pardner.)  It is Hobbesian.  In Leviathan, Thomas Hobbes famously belittled Sir Edward Coke, the great common lawyer, who regarded the edifice of English law, including the interpretation of statutes and the teachings of the common law that were grounded in custom, as evincing an “artificial perfection of reason,” concretely the product of many minds over time.  No one knew better than Coke that some of the particulars of the common law were more or less accidental.  But if they had been done “time out of mind,” then they were no less organic for being accidental, and the judge was bound by them until and unless a higher authority said otherwise.  Hobbes, with his “scientific” approach to politics and his rejection of the organic approach to common law, thought all this stuff ran too great a risk of “build[ing] on false grounds,” and he preferred clean, rational commands of an absolute sovereign from on high as against the humble gropings toward justice of judges dealing with the particulars of an organic community.

It strikes me that you are on Hobbes’s side in our matter of punctuation–but without the sovereign authority to enforce your will.  If I have not persuaded you to mend your ways, how about we submit to an authority we can both recognize?  William F. Buckley, Jr. would have been the perfect judge, but he is no longer with us.  How about Florence King, if she’s available?

Follow the Law–or Campaign Promises?


A month ago, I blogged here about the outlandish “orders” of Judges Kozinski and Reinhardt of the Ninth Circuit, each commanding that employees of the circuit be permitted to enroll their same-sex partners (now “spouses” under California law) in their federal health benefits programs.  (See also William Duncan’s article the same day.)  The Defense of Marriage Act, court administrators had said, forbade such enrollment.  Judge Kozinski “creatively” distinguished DOMA out of his way, while Judge Reinhardt declared DOMA unconstitutional.  I asked a number of questions at the time, concluding with “what then, exactly, is the obligation of the Ninth Circuit’s HR managers to pay attention to what the judges have said here?”

Now it turns out that someone with a higher pay grade has answered my question.  As the New York Times reports on its front page today, Lorraine Dettman, a career civil servant at the Office of Personnel Management now serving as assistant director (and seemingly in charge until the top job is filled), sent a letter on February 20 to the Administrative Office of the United States Courts, saying “Plans in the Federal Employees Health Benefits Program may not provide coverage for domestic partners, or legally married partners of the same sex, even though recognized by state law.”  It seems that federal judges acting in an administrative (rather than judicial) capacity are, well, just administrators, and not very high on the food chain as such things go.

Why the front-page treatment in the Times?  Because now the problem belongs to the Obama administration.  The president has said he’d like to repeal DOMA, and as a senator he sponsored legislation to provide health benefits to same-sex partners of federal employees.  But that legislation never went anywhere, and DOMA is still the law of the land.  Will he kowtow to the gay-rights lobby, or follow the law?

By the way, the Times notes the name of President Obama’s still-unconfirmed choice to head the OPM, M. John Berry, but fails to remark on something widely regarded as newsworthy when Berry’s name was floated for this job in January.  Berry, currently the director of the Smithsonian’s National Zoo in Washington, would be the highest-ranking openly gay official in the executive branch, as ABC’s Jake Tapper (among others) reported a couple of months ago.

It’s an interesting test of how disinterested one can be.  Berry is gay; OPM is responsible for enforcing DOMA across federal agencies.  What will he–and the president–do?

A Note on Quotation Punctuation


Warning to readers uninterested in punctuation matters:  Don’t read further. 

My post on proper punctuation of possessive singulars has led Matt Franck to advise me on another punctuation matter.  Matt has passed along to me, privately and gently, that the long-accepted American convention is to place periods and commas inside the quotation marks.  I’ve replied to Matt that I’m well aware of that convention and have deliberately decided not to follow it.  As faithful readers of Bench Memos may have wondered about my admittedly unorthodox practice of (usually) placing periods and commas outside the quotation marks, let me explain why I have departed from the convention and what my practice is. 

I regard the American convention on quotation punctuation as seriously defective for at least two reasons.  First, putting something in quotes seems to tell the reader that what is in quotes is what is actually in the original.  But when the closing period or comma is not in the original, placing it in quotes strikes me as a false statement.  To be sure, the fact that the accepted convention calls for that false statement excuses the offense.  But it still strikes me as a minor offense. 

There are, of course, other social conventions that also call for false statements.  When I greet a colleague with “Good morning!  How are you?”, I’m not expecting in response the colleague’s candid statement of his well-being.  But that social convention has the obvious upside of facilitating pleasantries.  I don’t see any upside in the convention of including periods and commas inside the quotation marks.  All that convention achieves is possible confusion over whether that punctuation exists in the original source.

Second, there are times when the convention causes goofy results.  Consider, for example, this unremarkable proposition (variants of which pervade judicial opinions):

The question in this case is the precise meaning of the statutory term “person.”

But “person.” (with the period inside the quotes) is not the statutory term; “person” is.  A convention that invites such imprecision is a flawed convention.

Because of my dissatisfaction with the convention, I have, as an experiment, employed over the last few years on Bench Memos (and on NRO generally) the unconventional practice of including within the quotation marks only what is in the actual source.  (Sometimes that will include the closing punctuation from the source.)  That practice has an obvious downside that I have risked:  readers may find the unusual practice off-putting and may take it as a sign that I am ignorant (rather than defiant) of an elementary punctuation convention.  I’ll note that I preemptively abandon that practice, and apply the convention, when I am writing for other publications whose editors would override me anyway.  (I often try, though, to write around the problem.)

This Day in Liberal Judicial Activism—March 13


1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape.  His interrogation by police yields a written confession.  His confession is admitted at trial, and he is convicted.

Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted).  It therefore vacates Miranda’s conviction.  In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.”  Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given.  In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute.  As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic”.  Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”   

Re: Possessive Justices


Ed, you’re quite right to regard as grotesque the possessive of “Congress” with just an apostrophe and no final “s.”  I looked at the article you mention by Starble in your update, but he says nothing about earlier justices.  I can say from memory that the late Chief Justice Rehnquist habitually made this error.  And it’s widespread in publishing: I had to cite Strunk and White myself in order to get an editor to use the “s” in my own work on one recent occasion.

So when did this mistake begin?  You just used up an hour of my afternoon, Ed, but I can at least say that my hero Chief Justice John Marshall never used the possessive of “Congress” without an “s.”  Oddly, however, this tells me nothing, for Marshall never used the possessive with an “s” either.  He simply never, in 34 years on the bench, used the possessive of “Congress” at all in any of his opinions.  He would, for instance, refer to a “power of Congress,” but never ever to “Congress’s power.”  But I got the impression from my searching that this wasn’t just Marshall’s habit–that it was common in our early history not to form a possessive of the proper name of our republic’s legislature.  I have no idea why.

Possessive Justices


As I indicated the other day, I find grotesque the possessive form of “Congress” that Justice Ginsburg used in her recent dissent—“Today’s decision returns the ball to Congress’ court”—at the same time that I recognize that that form is, alas, common.

I’m pleased to note that Bryan Garner (co-author, with Justice Scalia, of The Art of Persuading Justices) has this strong statement on the issue in his excellent Dictionary of Modern Legal Usage:  “The best practice, advocated by Strunk and White in The Elements of Style and by every other authority of superior standing, is to add –’s to all singular possessives, hence witness’s, … Congress’s.”  (Garner posits two exceptions to this rule, neither applicable—and both, in my judgment, dubious.)

A trusty research assistant and I have attempted to discern the practice of the nine justices on forming the singular possessive of “Congress” and “witness”.  That task is complicated by the fact that the common search engines seem designed to ignore apostrophes.  But our tentative conclusion is that three justices—Roberts, Scalia and Souter—have the right practice.  (I’m finally able to say something positive about Souter!).  The other six, it appears, consistently don’t.

Interestingly (at least if you find any of this interesting), the Harvard Law Review appears to have vacillated between the two forms, getting it wrong for some period before 1962, from 1968 to 1984 (with some exceptions), and from 1988 to 1991, and getting it right from 1962 to 1968, 1984 to 1987, and from 1991 to the present.  (I don’t have a specific memory of the matter, but it wouldn’t surprise me if I had some minor role in fixing things in 1984.)

Update:  I’ve just run across this excellent 2006 essay—“Gimme an ‘S’:  The High Court’s Grammatical Divide”—by West Hartford attorney Jonathan M. Starble on how the Court’s ruling in Kansas v. Marsh exposed a deep divide over the singular possessive.  Starble’s more extensive research indicates that Scalia has been inconsistent in forming the possessive of “Congress” and, more broadly, that Scalia appears to adopt a pronunciation rule (that is, use the apostrophe and the “s” when the possessive form changes the pronunciation) rather than the Garner rule.  He also puts Roberts on the unsound side of the divide, though he doesn’t spell out his evidence for doing so.

Re: Conclusion Now, Reasoning to Follow


Thanks to Ed Whelan for pointing out that the DOJ’s Office of Legal Counsel–an office that prizes continuity as much as can be across administrations–is on record against the idea that giving D.C. a House seat can be squared with the Constitution.  I’ve written a lot about this issue, as he says, and read still more, and I’m not sure I knew that (I can’t remember!).  But I do remember, and will add to the mountain of testimony against this unconstitutional scheme, that Congress’s own in-house experts are against it too: the Congressional Research Service of the Library of Congress published a report in 2007 by attorney Kenneth R. Thomas pointing out the difficulties, in language that even former teachers of constitutional law can understand.  Perhaps a copy could be sent to the White House.

Fourth Circuit Candidate Andre Davis


According to the Baltimore Sun, the Maryland senators are promoting federal district judge Andre Davis for a Fourth Circuit vacancy, and that makes it a safe bet that President Obama will nominate Davis.  A reader familiar with Davis’s judging tells me that Davis has an extraordinary record of reversals, including by Clinton appointees, and the Sun article states that federal prosecutors “are often frustrated by his rulings in criminal cases.”  Somehow I don’t think that Obama will care—or, worse, that he’ll view these as marks in Davis’s favor.

Conclusion Now, Reasoning to Follow?


President Obama has made clear that he would sign into law the so-called “D.C. Voting Rights Act”, which would purport to give the District of Columbia representation in the House of Representatives.  Matt Franck has comprehensively presented the compelling case against the bill’s constitutionality (see this post of his for a summary and links to much more).  Not having followed the matter closely, I hadn’t realized that the Office of Legal Counsel at the Justice Department has publicly and forcefully stated its conclusion that the bill is unconstitutional (in 2007 testimony before the Senate Judiciary Committee).

If the bill were to pass both houses of Congress now, would Obama sign it without first having his OLC carefully consider whether to revise the office’s position?  And will Dawn Johnsen, if confirmed as Obama’s nominee to head OLC, meekly deliver the conclusion that Obama wants?

President Obama’s Grandstanding on Signing Statements


President Obama engaged in a lot of empty grandstanding on Monday when he issued a memorandum setting forth his intended practice on signing statements.  The memorandum was intended to suggest a sharp break with President Bush’s practice—and a compliant media has largely adopted that line—but the reality is, appropriately, one of substantial continuity.  Among the emptiest parts of the memorandum was Obama’s directive that executive-branch officials “seek the advice of the Attorney General before relying on [previous] signing statements … as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.”  As Bush’s deputy White House counsel William A. Burck put it (in this article):  “This isn’t news.  It’s how the executive branch has long operated, and it’s totally appropriate.”

Obama’s first signing statement, issued yesterday (and available here), further illustrates how extensive the continuity with the Bush practice is.  Obama’s signing statement raised five constitutional concerns about provisions of the Omnibus Appropriations Act of 2009, and those very concerns are prominent among those most frequently raised by Bush in his signing statements.  (See DOJ official John P. Elwood’s excellent testimony in 2007 before the House Judiciary Committee for a fuller account of the Bush practice.) 


Compare the Obama and Bush statements:


1.  Obama:  “Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.”


Bush:  “Sections 2(5) and 2(6) of the Act purport to require the annual report of the Secretary of the Treasury to include a description of discussions between the United States and Mexican governments.  In order to avoid intrusion into the President’s negotiating authority and ability to maintain the confidentiality of diplomatic negotiations, the executive branch will not interpret this provision to require the disclosure of either the contents of diplomatic communications or specific plans for particular negotiations in the future.”  Statement on Signing Legislation on Amendments to the Mexico-United States Agreement on the Border Environment Cooperation Commission and the North American Development Bank (Apr. 5, 2004).  And:  “The executive branch shall construe provisions of the Act that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments or international organizations in a manner consistent with the President’s constitutional authority to conduct the Nation’s foreign affairs, including the authority to determine which officers shall negotiate for the United States with a foreign country, when, in consultation with whom, and toward what objectives, and to supervise the unitary executive branch.”   Statement on Signing the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (Jan. 12, 2007).


2.  Obama:  “United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.”


Bush:  “Section 8050 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2007 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8050 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President’s constitutional authority as Commander in Chief.”  Statement by the President on H.R. 5631, the “Department of Defense Appropriations Act, 2007” (Sept. 29, 2008).

3.  Obama:  “Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

Bush:  “A number of provisions of the Act, including sections 905, 932, 1004, 1212, 1224, 1227, and 1304, call for the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe such provisions in a manner consistent with the President’s constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”   Statement on H.R. 1815, the “National Defense Authorization Act for Fiscal Year 2006”  (Jan. 6, 2006).  And:  “Sections 1209 and 2202 of the Act prohibit use of certain funds appropriated in the Act to initiate new start programs unless the congressional defense committees receive advance written notice. The Supreme Court of the United States has stated that the President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 1209 and 2202 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.”  President’s Statement on Signing of Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 (June 15, 2006).

4.  Obama:  “Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.”

Bush:  “The executive branch shall construe certain provisions of the Act that purport to require congressional committee approval for the execution of a law as calling solely for notification, as any other construction would be inconsistent with the principles enunciated by the Supreme Court of the United States in INS v. Chadha.”  Statement on Signing the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act (Nov. 10, 2005).

5.  Obama:  “Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only ‘such Measures as he shall judge necessary and expedient’ (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.”

Bush:  “Further, sections 101 and 102 purport to require the President to submit supplemental appropriations requests. The executive branch shall construe these sections in a manner consistent with the President’s constitutional authority to recommend for congressional consideration such measures, including requests for appropriations, as he judges necessary and expedient.”).  Signing Statement for H.R. 2361, the “Department of Interior, Environment, and Related Agencies Appropriations Act, 2006” (Aug. 2, 2005).

What a dramatic break!

Congrats, President Obama


Candidate Obama made it clear on the campaign trail that he rejected the ABA’s risible conclusion that a president may not properly use signing statements to state his constitutional objections to provisions in laws that he is signing:

“No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives.”

Well, no one other than the members of the ABA’s task force that produced its ridiculous report.  (For various of my criticisms of the ABA’s report, see here, here, here, and here.) 


Given that the ABA is pigheadedly sticking to its position, I’m glad to see this report that President Obama, in signing the omnibus spending bill today, “released a ‘signing statement’ in which he said several of the bill’s provisions raised constitutional concerns.”  (As for the omnibus bill itself, I doubt very much that it is to be welcomed.)

Justice Souter’s Lobotomies


Justice Souter evidently believes that he has suffered some 19 or so “intellectual

lobotom[ies]”.  That’s as good an explanation as any for how a justice could sign on to the proposition that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—and to the related misconception that justices may legitimately exercise an unconstrained power to define for all Americans which particular interests should be beyond the bounds of citizens to address through legislation. 

More on Reckless NY Times Editorial


A follow-up to my posts here and here on the recent New York Times house editorial that wildly distorts the letter that Senate Republicans sent to President Obama last week urging consultation on judicial nominees:  In addition to Jonathan’s excellent Volokh Conspiracy post, I’d like to focus attention again on the editorial’s false assertion that “Republicans abandoned [blue slips] when they controlled the Senate under Mr. Bush.” 

At the outset, I’ll repeat that I’ve criticized the Senate’s blue-slip policy (most extensively in this Weekly Standard essay), especially as it applies to appellate judges (whose workload bears no particular connection to their supposed home state), and that if I were making the rules, the blue-slip practice would be quite limited.  I’ll also add that because the blue-slip policy has never been reduced to writing, its contours over time are particularly subject to dispute.

That said, let’s look at the blue-slip practice when Republicans controlled the Senate from 2003 through 2006.  Let’s begin with Senator Hatch’s tenure as Judiciary Committee chairman for 2003 and 2004.  Hatch stated clearly in 2003 that he would abide by the same blue-slip policy that Teddy Kennedy and Joe Biden had adopted when they each chaired the committee. Under what Hatch labeled the “Kennedy-Biden-Hatch blue-slip policy,” the return of a negative blue slip on a nomination would be given “substantial weight,” but would not necessarily prevent a committee hearing and vote on the nomination. Applying that policy, Hatch (so I am reliably informed) ensured that the Bush White House engaged in extensive consultation with home-state senators.  Over conservative opposition, he even declined to afford a hearing to Fourth Circuit nominee Terry Boyle, whom then-senator John Edwards refused to okay.

On a handful of nominees (two sets of occasions, really) that I’m aware of, Hatch did ultimately proceed to hearings in the face of negative blue slips.  An examination of the details of those is instructive.

In November 2001 President Bush nominated David W. McKeague, Susan Bieke Neilson, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit, and in May 2003 he nominated Richard A. Griffin to another such Sixth Circuit seat.  Despite extensive consultation, the Michigan senators refused to return positive blue slips on these nominees because Bush had failed to renominate Clinton nominee Helene White—Senator Levin’s cousin-in-law—to one of the seats.*  (I think that a couple district court nominees may also have been blocked on the same ground.)  In July 2003—a full 20 months after Saad’s nomination and six months into Hatch’s chairmanship—Hatch held a hearing on Saad.  After the hearing, Hatch waited almost a full year (until June 2004) for the committee to vote on Saad as Hatch worked to accommodate Levin’s interest in nepotism. 

The hearings on McKeague, Griffin, and Neilson finally occurred, respectively, in May, June, and September of 2004—30 months after McKeague’s nomination, one year after Griffin’s, and 34 months after Neilson’s.  Again, in the interim, Hatch was working with the Michigan senators to find some way to move forward.

When the nominations of Saad, McKeague, and Griffin reached the floor, Democrats filibustered them.  In the wake of the Gang of 14 deal, Griffin and McKeague were finally confirmed in June 2005—3-1/2 years after they were nominated.  Neilson was finally confirmed in October 2005—nearly four years after her nomination.  (She died in January 2006, before serving three full months.)

The other nomination on which Hatch ultimately proceeded to a hearing was that of Carolyn B. Kuhl to a supposed California seat on the Ninth Circuit.  President Bush nominated Kuhl in June 2001.  Hatch held a hearing in April 2003—22 months after her nomination—after committee member Dianne Feinstein submitted a positive blue slip (reserving her judgment on the nomination until after the hearing) and notwithstanding a negative blue slip from Senator Boxer.  Democrats filibustered Kuhl’s nomination, and she was never confirmed.

As for Senator Specter’s tenure as chairman from 2005 to 2006:  Democrats successfully extracted from Specter a dramatic expansion of the blue-slip policy that gave them a power that no members of a Senate minority had previously been afforded:  an effective veto over judicial nominations in their states by an opposite-party president.  (As I explained in my Weekly Standard essay, I don’t think that expansion made any sense.)

So Hatch’s application of the Kennedy-Biden-Hatch blue-slip policy and Specter’s expansion of that policy refute the Times’s assertion that “Republicans abandoned [blue slips] when they controlled the Senate under Mr. Bush.” 

One correction/clarification:  I have said previously that “Republican senators, through their letter, are making clear that they will insist on, and use their collective power to demand, the same blue-slip practice that Senate Democrats exercised during the Bush years.”  I believe that that statement is entirely accurate for six of the eight Bush years, but I now see that it doesn’t recognize the modest exceptions in practice during the Hatch chairmanship.


I repeat again that I would be happy to see the blue-slip practice eliminated or curtailed prospectively on a bipartisan basis.  But what committee chairman Patrick Leahy is seeking—a system in which Democrats have enormous blue-slip power against nominees of a Republican president but Republicans have little or none against nominees of a Democratic president—is not defensible, and Republican senators are right to stand together to make sure that won’t happen.


* In a previous post, I responded briefly to a blogger’s mention of the Saad hearing.  A reader has reminded me of the related negative blue slips on the McKeague, Griffin, and Neilson nominations.

Advice to Obama on Judicial Nominations


Wednesday at noon I’ll be on a panel at the Heritage Foundation on “Advice to President OBama on Judicial Nominations.” Joining me on the panel will be former Acting Solicitor General Walter Dellinger and the National Journal’s Stuart Taylor.  Details here.

That “Reckless” NYT Editorial


Yesterday’s NYT editorial on judical nominations was so bad that I couldn’t let Ed have all the fun.  I add my thoughts in this VC post.

Renominate Rosenstein


The Baltitmore Sun reports that folks on both sides of the aisle are pleased with U.S. Attorney Rod Rosenstein’s performance — so much so that he could stay on for a while in the Obama Administration.  Perhaps President Obama will also consider renominating him to a seat on the U.S. Court of Appeals for the Fourth Circuit.

Re: Another Reckless NY Times Editorial


Over at People for the American Way’s blog, the blogger “Kyle” takes issue with my criticism of the New York Times editorial in two respects. 


First, Kyle imagines that the Senate Republicans’ letter isn’t “really about ‘blue-slip privileges” because “it makes no mention of blue-slip policy at all.”  It is true that the letter, intended for general consumption as well as for President Obama, doesn’t use a technical term that many readers wouldn’t understand.  But its second proposed step is clearly about the blue-slip privilege, as I explain here and as the New York Times editorial fully recognizes.  (Hint to Kyle:  That’s why the editorial discusses the blue-slip privilege.)


Second, Kyle maintains that the blue-slip policy changed dramatically from the time that Senator Leahy was chairman of the Judiciary Committee (2001-2002) to the time that Senator Hatch was chairman (2003-2004).  He specifically contends that Hatch “ignor[ed] the blue-slip policy altogether when it served the GOP’s interests”.  The entirety of his evidence:  Hatch held hearings on two nominees who hadn’t received favorable blue slips.  Kyle fails to mention that Democrats filibustered both nominees to keep them from being confirmed.  He also fails to mention that the policy during Senator Specter’s period as chairman (2005-2006) was the same as under Senator Leahy. 


I will acknowledge that this sentence in my post was imprecise (in light of Hatch’s two hearings):  “All that Senate Republicans are seeking is maintenance of the same blue-slip practice that they afforded Democrats under President Bush.”  I should have written:  “All that Senate Republicans are seeking is maintenance of the same blue-slip practice that Democrats successfully insisted on under President Bush.”  (And I’ll reword it right now.)

More of Justice Ginsburg’s Political Activism


I’ve criticized (as has Orin Kerr on the Volokh Conspiracy) Justice Ginsburg’s use of her dissent in the 2007 case of Ledbetter v. Goodyear Tire & Rubber Co. to call for Congress to override the Court’s ruling. 


Undoubtedly buoyed by Congress’s legislative reaction to Ledbetter (a reaction that, as Hans Bader documents, rested heavily on a distorted account of the Court’s ruling), Ginsburg is at it again.  Today, she dissented from the Court’s 5-4 ruling on a Voting Rights Act issue in Bartlett v. Strickland.  (Roger Clegg discusses the Court’s ruling on The Corner.)  Beyond joining Justice Souter’s dissent, Ginsburg wrote a four-sentence dissent in which she states:


Today’s decision returns the ball to Congress’ court.  The Legislature has just cause to clarify beyond debate the appropriate reading of §2.


And if that tired and confused tennis metaphor sounds vaguely familiar, perhaps it’s because Ginsburg used it in her Ledbetter dissent:  “Once again, the ball is in Congress’ court.  As in 1991, the Legislature may act to correct this parsimonious reading of Title VII.”  (I also find ridiculous the punctuation of the possessive form of “Congress”, but Ginsburg’s style, alas, is a common one.)


As I put it in discussing Ginsburg’s Ledbetter dissent:


What business is it of Ginsburg’s to invite Congress to legislate on a matter, much less to legislate in a certain way?  I suppose that it’s no wonder that a justice who can’t separate judging from politics—and whose decisionmaking routinely indulges and entrenches her own political preferences—would see no reason to refrain from advising Congress how to carry out its legislative function. 

Another Reckless NY Times Editorial


Yesterday’s New York Times has a house editorial that wildly distorts the letter that Senate Republicans sent to President Obama last week urging consultation on judicial nominees.  (I discussed that letter here.)  Here is a non-exhaustive list of the editorial’s distortions:


1.  The editorial contends that Republican senators are now “threatening … filibusters if Mr. Obama’s nominees are not to their liking”, and it alleges that this threat is “at odds with their previous views on the subject.”  But the Republican senators’ letter does not threaten filibusters for the purpose of defeating judicial nominees “not to their liking”.  It threatens a filibuster if Democrats trample the traditional blue-slip privilege. 


2.  As to the blue-slip privilege:  The editorial states that Judiciary Committee chairman Patrick Leahy “must decide whether to follow the Senate’s ‘blue slip’ tradition, which holds that judicial nominees should not move forward without their home-state senators’ support.”  Two sentences later, it asserts that “Republicans abandoned them [blue slips] when they controlled the Senate under Mr. Bush.”  That assertion is a fantasy, an ignorant statement, or an outright lie.  All that Senate Republicans are seeking is maintenance of the same blue-slip practice that they afforded Democrats Democrats successfully insisted on* under President Bush.  There is nothing that Leahy “must decide”—unless he wants to trample the blue-slip privilege.


3.  The editorial asserts that Republicans “insisted that Mr. Obama begin by appointing holdover nominees who were never confirmed by the Senate.”  But Republicans didn’t “insist” on anything.  They merely “suggest[ed]” that “[i]t would help change the tone in Washington if [the Obama] Administration would take the same bipartisan step” that President Bush took in 2001—by renominating two Bush nominees.  But for the New York Times, it’s evidently fine for Obama to engage in a lot of sweet-sounding talk of bipartisanship, but objectionable to put it into practice.


* I explain this change here.

This Day in Liberal Judicial Activism—March 8


1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Week entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented.  As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.

This Day in Liberal Judicial Activism—March 6


1857—Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—“substantive due process”—to invalidate a statute.  In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts:  “[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.”  

The dissenters in Dred Scott invoke, and properly apply, the originalist principles that liberal judicial activists regard as abhorrent.  As Justice Curtis declares rhetorically in exposing Taney’s deviation from originalist principles:  “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it.”  Further:   “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

1996—On the anniversary of Dred Scott, an en banc panel of the Ninth Circuit, in Compassion in Dying v. State of Washington, rules that a Washington statute prohibiting physician-assisted suicide violates substantive due process.  The majority opinion, by notorious liberal activist Stephen Reinhardt, garners votes from eight of the eleven panel members.

A year later, the Supreme Court unanimously reverses the Ninth Circuit (in an opinion styled Washington v. Glucksberg).  But any assurance or clarity that the unanimous judgment might seem to provide is undercut by five separate opinions (by Stevens, O’Connor, Souter, Ginsburg, and Breyer) signaling a willingness to concoct at some future point some sort of constitutional right to physician-assisted suicide.

2003—Senate Democrats use the anniversary of Dred Scott to punish a Hispanic judicial nominee who has escaped from the liberal plantation.  Initiating the unprecedented use of the filibuster as a partisan weapon to block forever an up-or-down vote on a judicial nominee, 44 Democrats prevent a Senate floor vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit.  This is the first of seven unsuccessful cloture votes before Estrada ultimately withdraws his candidacy.

Palin Picks Christen for Supreme Court


Governor Sarah Palin nominated Anchorage Superior Court Judge Morgan Christen to a seat on the Alaska Supreme Court, over the objections of the Alaska Family Council.  Story here.

Re: Oral Argument on California’s Proposition 8 Case


I didn’t suffer through the three-hour oral argument, but Maggie Gallagher and Dale Carpenter (who are on opposite sides of the broader battle over same-sex marriage) evidently did, and they have the same read.  In Gallagher’s summary:  “The California court will vote to uphold Prop. 8 and decline to apply it retrospectively.”  


I think that the latter ruling would be wrong—or, more precisely, as I explained in the final two paragraphs of this post, I think that all the talk about retroactivity (or retrospectivity) is badly confused and misplaced—but I wouldn’t be at all surprised if the prediction turns out to be accurate.

SG Nominee Kagan Reported Out of Committee


This morning the nomination of Elena Kagan to be Solicitor General was reported out of committee.


Of the eight committee Republicans (Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, and Coburn), only two voted in favor of Kagan’s nomination.  See if you can guess which two. 


I don’t know how to do those nifty “below the fold” posts, so stop reading here until you’ve made your guesses.




Believe it or not, the two Republicans who voted for Kagan’s nomination were Jon Kyl, the Republican whip, and Tom Coburn, known by some as “Dr. No”.  In light of Kagan’s failure to respond to questions, Specter, Hatch, and Graham voted “pass”, and Grassley, Sessions, and Cornyn voted no.  


I’ll limit myself for now to the observation that Kyl’s and Coburn’s support for a nominee that no other committee Republican supported is ample proof that Senate Republicans are in abject disarray.  Really pathetic and discouraging.

Media Matters Muddle


Media Matters (which describes itself as a “progressive research and information center dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media”) complains that articles in Politico and Roll Call on the Republican senators’ recent letter to President Obama on judicial nominations failed to note that “several of those Republicans” now raising the threat of a filibuster of judicial nominations “previously challenged the constitutionality of filibustering judicial nominees.”  But Media Matters’ complaint is defective in two elementary respects:


First, Media Matters purports to offer specific evidence that eight Republicans have previously “said or suggested that filibustering judicial nominees is unconstitutional.”  But only the statement of one of the Republicans clearly asserts the unconstitutionality of the filibuster (and whether that was a considered position or a verbal misstep is unclear), and, fairly read, only one other statement seems to suggest it.  There are of course ample grounds to oppose the use of the filibuster on judicial nominees without taking the position that it’s unconstitutional, and that’s the approach of the rest of the statements.  (I’ve long made clear that I believe that the filibuster of judicial nominees is constitutionally permissible but a bad innovation.)


Second, even as to any Republican senators whose considered position was that the filibuster of judicial nominees is unconstitutional:  It’s one thing to threaten collective action, including possibly the filibuster, to make sure that the blue-slip privilege isn’t trampled.  It’s something quite different to use the filibuster, in violation of longstanding Senate practice, for the very purpose of defeating a judicial nominee.  There is no inconsistency in supporting the former and opposing the latter.  And insofar as considerations of practice and purpose informed a senator’s judgment (mistaken, in my view) that Senate Democrats’ filibuster of judicial nominees was unconstitutional, that senator might reasonably reach a different conclusion about the Republicans’ threatened use.

SG Nominee Kagan Stiffs Specter


After Solicitor General nominee Elena Kagan inadequately answered the written questions submitted by Republican senators on the Judiciary Committee (see my posts “Elena Kagan’s ‘Vacuity and Farce’”—Parts 1, 2 and 3), ranking committee Republican Arlen Specter sent Kagan a letter expressing his dissatisfaction with her many non-responses and stating that they were “inadequate for confirmation purposes”.  Specter asked that Kagan provide real responses.


In a letter response, Kagan has stiffed Specter’s request.  She asserts that “some questions … cannot be answered consistently with the responsible performance” of the Solicitor General position and repeats the arguments that I rebutted in my Part 2 post.  (She seems to have abandoned the ones I addressed in my Part 1 post.) 


Kagan also states that in providing her non-responses she “was cognizant of the way other nominees to the position of Solicitor General have replied to inquiries from senators”.  She provides two examples, neither of which provides meaningful support for her position.  First, she quotes a snippet of an answer from Paul Clement, but fails to point out the remaining eight sentences in Clement’s answer that provide a meaningful response to the question.  Second, she quotes a statement by Seth Waxman that it is the “established practice of the Solicitor General not to express views or to take positions in advance of presentation of a concrete case.”  But Kagan is not the Solicitor General (nor, of course, was Waxman if and when he used this sleight of tongue to evade answering a question).  She’s the nominee, and she has (to borrow from her own letter) “a responsibility to address senatorial inquiries as fully and candidly as possible.”  She’s plainly not doing that.


In light of Specter’s recognition that Kagan’s answers are “inadequate for confirmation purposes”, Specter’s sole option is to vote against Kagan, and other Republicans should follow his lead.

Oral Argument on California’s Proposition 8 Case


Tomorrow the California supreme court holds oral argument on the legal challenges to Proposition 8, which California voters adopted last November to enshrine traditional marriage in the state constitution and to override the state supreme court’s terrible decision from last May that concocted a right to same-sex marriage. I’ve expressed some thoughts on the issues in the case here and here. But, as I’ve said before, I make no predictions as to how the court will actually rule, as a court that can render the May marriage decision is capable of any sort of judicial malfeasance.


As this Los Angeles Times article explains, under the California supreme court’s procedures, the court is already very far along in its decisionmaking:


By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days.

The live video of the oral argument (which begins at noon EST and 9 a.m. PST) will be available here, so if you want to see whether another nail will soon be driven into the coffin of representative government, tune in.

Republican Senators’ Letter to President Obama


A letter to President Obama signed by all Senate Republicans proposes two steps that Obama should take to make the judicial-appointments process less acrimonious and more bipartisan.  (The letter is available on the Judicial Confirmation Network’s website, along with a statement by JCN counsel (and Bench Memos contributor) Wendy Long praising the Republican senators’ “show of strength and resolve on the matter of judges”.)


The first proposed step is for Obama to renominate to the federal appellate courts one or more of the Bush nominees who were stalled in the last Congress.  Noting that “there are plenty of well-qualified nominees with bipartisan support from whom to choose”, the Republican senators’ letter gives as its lead example D.C. Circuit nominee Peter Keisler.  As the letter points out, such bipartisan renominations would follow the lead of President George W. Bush, who renominated Clinton recess appointee Roger Gregory (to the Fourth Circuit) and elevated Clinton appointee Barrington Parker (to the Second Circuit).


The second step that Republican senators propose is for Obama to consult closely with home-state senators on nominees in their states.  What is most noteworthy here is how Republican senators are responding to Senate Judiciary Committee chairman Patrick Leahy’s reported threat to trample their “blue slip” privilege—the means by which they exercise real clout over home-state nominees.  The letter makes clear that all Republican senators expect the committee’s blue-slip policy “to be observed, even-handedly and regardless of party affiliation” and that Republican senators will act “as a Conference” to “preserve this principle and the rights of our colleagues if it is not”.  In other words, Republican senators are making clear that they will insist on, and use their collective power to demand, the same blue-slip practice that Senate Democrats exercised during the Bush years.


I’ll highlight here that I’ve criticized the Senate’s blue-slip policy (most extensively in this essay), especially as it applies to appellate judges (whose workload bears no particular connection to their supposed home state), and if I were making the rules, the blue-slip practice would be quite limited.  But what Leahy seeks—a system in which Democrats have enormous blue-slip power against nominees of a Republican president but Republicans have little or none against nominees of a Democratic president—is the worst possible approach, and it’s very encouraging that all Republican senators are standing together to make sure that won’t happen.

This Day in Liberal Judicial Activism—March 1


1954—The Senate, by voice vote, confirms President Eisenhower’s nomination of former California governor Earl Warren to serve as Chief Justice. Warren was already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. (To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.)

2005—Relying on “international opinion,” the Supreme Court, by a vote of 5 to 4, overturns its own precedent and rules in Roper v. Simmons that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. Roper starkly illustrates how the same justices who bow to the views of foreigners are disdainfully dismissive of the rights of American citizens to engage in self-governance in this country.

When he was 17, Christopher Simmons planned a brutal murder. He assured his friends they could ‘get away with it’ because they were minors. In the middle of the night, Simmons and a friend broke into a woman’s home, awakened her, covered her eyes and mouth with duct tape, bound her hands, put her in her minivan, drove to a state park, walked her to a railroad trestle spanning a river, tied her hands and feet together with electrical wire, wrapped her whole face in duct tape, and threw her from the bridge. Exactly as Simmons planned, his victim drowned an unspeakably cruel death in the waters below.

Simmons confessed to the murder. At the death-penalty phase of his trial, the judge instructed the jurors that they could consider Simmons’ age as a mitigating factor, and the defense relied heavily on that factor. The jury recommended, and the trial judge imposed, the death penalty.

In his majority opinion (joined by Justices Stevens, Souter, Ginsburg, and Breyer), Justice Kennedy aims to discern “the evolving standards of decency that mark the progress of a maturing society.” Kennedy looks to the 12 states that have no death penalty and the 18 states that, “by express provision or judicial interpretation, exclude juveniles from its reach” to conclude that a majority of states—30 in total—reject the death penalty for 16- and 17-year-olds. In dissent, Scalia counters that it makes no sense to count states that have no death penalty: “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.”

Kennedy then finds “respected and significant confirmation” for his ruling in “the overwhelming weight of international opinion against the juvenile death penalty.” According to Kennedy, the fact that the United States, alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the Rights of the Child—which contains an express prohibition on capital punishment for crimes committed by juveniles—supports his conclusion that the juvenile death penalty is unconstitutional. But as Justice Scalia observes in dissent, “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States,” the United States’ non-ratification of Article 37 undercuts the majority’s position. Scalia also points out that the justices in the majority would never aim to conform American law to the rest of the world on matters like the exclusionary rule, church-state relations, and abortion. 

This Day in Liberal Judicial Activism—February 28


2001—The Legal Services Corporation Act of 1974 created a federal subsidy program that provides financial support for legal assistance to the poor in noncriminal matters. To keep the program from being used for political purposes, Congress has tightly regulated the use of LSC funds. One funding restriction, added in 1996, withheld LSC funds from entities that took part, on either side, in litigation to reform welfare.

In Legal Services Corp. v. Velasquez, the Supreme Court, by a vote of 5 to 4, rules (in an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer) that the 1996 funding restriction violates the First Amendment. Justice Scalia, in dissent (joined by Rehnquist, O’Connor, and Thomas), explains that the case is “embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in [the Court’s 1991 ruling in] Rust v. Sullivan.”  

The Obama Administration and the New Haven Firefighters Case


The Obama administration filed an amicus brief with the Supreme Court on February 26 in Ricci v. DeStefano, a much-watched case that the Court will decide this year (the case will be argued on April 22).  In it, 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 firefighters who did well on the test sued, alleging violations of Title VII of the 1964 Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment, but lost in the district court and court of appeals. (There were some procedural shenanigans in the way the Second Circuit handled the case that Ed Whelan has written about here; it is of interest that the allegations of procedural improprieties involve Judge Sonia Sotomayor, who is often mentioned as a possible Obama pick for the Supreme Court.)

The Obama administration’s brief (with lawyers on it not only from the Justice Department but also from the Labor Department and Equal Employment Opportunity Commission) argues that the City should be permitted to throw out the results of the test so long as it was motivated by a “reasonable” belief that using the results “may” have subjected it to liability under Section 703(k) of Title VII of the 1964 Civil Rights Act. Section 703(k) makes it illegal for employers to use selection devices that have a “disparate impact” on racial groups unless those test are “job related for the position in question and consistent with business necessity.” So long as an employer has this belief, says the brief, there is no violation of Title VII or the Constitution. But, concludes the brief, it’s not clear that the lower courts looked carefully enough into whether this belief was reasonable, nor indeed whether this was the real reason for the city’s action at all, and so it asks the Court to reverse the decision and remand for further proceedings.

While it could have been worse, there are three problems with the administration’s brief. The first is that it does not acknowledge that this is most charitably what is called a “mixed motives” case and that, if it is, the city is going to be liable to at least some degree. There is very strong evidence that the city was motivated in part, if not entirely, by political rather than legal reasons. Under Section 703(m) of Title VII, that’s enough to establish liability.

Second, mere “reasonable” belief that not throwing out the test results “may” result in Title VII liability is just not a tough enough standard for what is clearly the city’s disparate treatment of individuals based on their skin color. The central focus of Title VII is on preventing employers from making employment decisions with an eye on favoring some and disfavoring others based on race (and sex, religion, and national origin). Clearly this is what happened here. For that to be excused, the city must have a belief that is not just “reasonable” that it “may” be in violation of another part of the statute; it must be able to show the court that it indeed would be liable. The test proposed by the Obama administration is too easy.

Third, the part of the brief addressing the Constitution is even worse. The administration denies that choosing selection devices with an eye on the racial bottom line even triggers “strict scrutiny” under the Equal Protection Clause. It then argues that, in any event, such discrimination would be permissible so long as the city “has a strong basis in evidence for believing that the decision is reasonably necessary to comply with Title VII.” Even if the desire to comply with a statute can trump otherwise unconstitutional behavior, surely the employer must show, again, that it would be liable under the statute, not just that it “reasonably” believed that it might be.

But, again, the administration’s brief could have been worse, and if nothing else it’s good that the High Court is not told to rubberstamp what the courts below did. And, to be fair, there is a tough problem in this case: What is an employer to do when Congress has written a statute that mostly tells him not to weigh race in deciding whom to hire or promote, but in a secondary part tells him that he may be liable unless he does consider race? The right answer is to interpret the second part of the statute narrowly, so it doesn’t swallow the first and centrally important part, but it’s too bad that Congress stuck in the second part at all.

The stakes are high. In employment matters, if the desire to avoid a disproportionate result always allows employers to engage in disparate treatment, then Title VII and the Constitution permit quotas. And since the Constitution applies to nonemployment matters, then this approach would also allow, for instance, a university deliberately to fine-tune its selection devices with an eye to putting a ceiling on the number of “overrepresented” groups (say, Asians and Jews).

While I’m at it, let me note that there are some other red flags out there with regard to the new administration’s racial policies. On the same day it filed it Ricci brief, the Justice Department also entered into a settlement that “requires the city of Dayton [Ohio] to hire up to five eligible African-American claimants as police officers and up to nine eligible African-American claimants as firefighters” (quoting the Department’s press release). Again, the challenge was based on the city’s use of tests and certifications; it’s unclear why the relief should require numerical hiring rather than simple nondiscrimination.

Also the same day, the Department of Health and Human Services published in the Federal Register an initiative that targets “ethnic and racial minority groups at risk for substance use and HIV/AIDS . . . ” And the day before that, HHS also proposed a scholarship program open “only” to Native American Indians and Native Alaskans. Should we be using race and ethnicity as a proxy for being “at risk” for HIV/AIDS? And even if we want to improve health care and, in particular, “to service Indians,” are racially (or tribally) exclusive scholarships the way to do it?

He Huffs, and He Puffs


but this Wolfe blows no houses down.  Ed is right that Alan Wolfe’s criticism of Justice Alito’s opinion in Pleasant Grove v. Summum is bizarrely wide of the mark.

Wolfe goes wrong from the first, when he supposes that Alito has invented some “right to free speech” possessed by governments and that this is somehow more capacious than anyone else’s freedom of speech.  While Alito refers to governments’ speech, and even to their “freedom” to speak, his whole point is that the First Amendment “right to free speech” belongs to individuals and constitutes a restraint on government where they are concerned.  But when government itself is doing the speaking–as it does all the time–it makes no sense to talk about a restraint, springing from the First Amendment freedom of speech clause, that would control what the government chooses to say.  Other provisions of the Constitution, such as the establishment clause, may restrain it (as Alito and every other justice acknowledge, a fact Wolfe somehow misses), but there is no form of constitutional logic that can get us from the premise “individual freedom of speech is protected from the government,” to the conclusion “government is itself restrained in what it can choose to say,” without some one or more minor premises in between.  There is no sign that Wolfe has even imagined what these might be.  But that is because he is off on a tear about John Stuart Mill before he has stopped to read the opinions in Summum, and think for a moment.

Crying Wolfe


On the New Republic’s website, Alan Wolfe offers a terribly confused criticism of the Supreme Court’s ruling Tuesday in Pleasant Grove City v. Summum that the First Amendment’s Free Speech Clause did not give a private group a right to place a permanent monument in a city park in which other donated monuments were previously erected.  Justice Alito’s opinion was joined in full by all the other justices except Justice Souter, who filed an opinion concurring in the judgment.  In addition to joining Justice Alito’s opinion in full, Justices Stevens (joined by Ginsburg), Scalia (joined by Thomas), and Breyer also wrote concurring opinions.


Central to Alito’s opinion was his reasoning that “the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”  Wolfe bizarrely accuses Alito of “making up law out of whole cloth” and of “twist[ing] the meaning of words so out of shape that only a deconstructionist could admire it”.  Wolfe finds deeply offensive the whole notion of a government’s freedom to express its views.  And he proceeds to a series of non sequiturs, culminating in “if the government wants to nationalize the banks, shouldn’t it have the right not only to say so but to actually do it?”


Let’s consider some of Wolfe’s errors:


1.  Wolfe contends that Alito’s opinion “relied on reasoning [about government speech] that drew strong objection from some of the Court’s more liberal members.”  But every justice except Souter joined the opinion in full. 


Stevens’s concurring opinion calls Alito’s opinion “persuasive”.  Although Stevens calls the “recently minted government speech doctrine … of doubtful merit,” he states that Alito’s opinion “signals no expansion of that doctrine.”


In his concurring opinion, Breyer states that he “agree[s] with” Alito’s opinion” on “the understanding that the ‘government speech’ doctrine is a rule of thumb, not a rigid category.”


Even Souter, in his opinion concurring in the judgment, emphasizes his agreement with Alito that the Ten Commandments monument erected in the park “is government speech”.  He merely states that he has “qualms … about accepting the position that public monuments are government speech categorically.”


2.  Wolfe seems to have given no thought to his position that governments don’t have any freedom to express their views.  Alito explains in a simple two-sentence paragraph that “it is not easy to imagine how government could function if it lacked this freedom”. 


3.  Wolfe imagines that Alito’s position would leave “the First Amendment’s prohibition of a religious establishment … ripped to shreds.”  Never mind that Alito makes clear that there are “restraints on government speech”, including that “government speech must comport with the Establishment Clause.”  Wolfe evidently missed that part of Alito’s opinion.


4.  Wolfe imagines that there is something novel about Alito’s reasoning.  But as Stevens himself makes clear, Alito’s reasoning is entirely consistent with the Court’s precedents.