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

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

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

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

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

Supreme Court Candidate Diane P. Wood—Part 1

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

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

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

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

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

 

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

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

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

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

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

Equipoise?

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

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

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

Ranking Member Sessions

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

Loose Lips at the White House

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

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

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

Judicial Picks Have Consequences for Elections, Too

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

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

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

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

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

Re: Moving the Court Further Left

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

UPDATE: Please see Mea Maxima Culpa.

Moving the Court Further Left

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

Republican Senators and Judges’ “Slow-Motion Coup”

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

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

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

Sotomayor Not Smart Enough?

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

This Day in Liberal Judicial Activism—May 4

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

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

It’s Not Easy Being a Roosevelt

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

Souter Vacancy III: Obama, Pragmatist?

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

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

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

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

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

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

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

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

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

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

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

Souter Vacancy II: Vive la Difference?

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

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

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

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

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

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

Souter Vacancy I: Toward Armistice in the Judicial Wars?

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

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

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

This Day in Liberal Judicial Activism—May 3

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

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

WSJ vs. WSJ on Souter and Obama

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

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

 

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

 

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

 

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

 

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

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

Justice Souter and His Replacement

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

 

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

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

 

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

 

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

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

[Cross-posted on The Corner]

Unsolicited Advice for GOP Senators

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

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

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

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

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

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

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

Ranking Member Grassley?!?

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

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

Let’s have a “Reverse Souter”

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

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

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

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

Souter and the Court

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

Keep in mind:

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

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

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

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

This Day in Liberal Judicial Activism—May 1

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

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

Filling the Souter Seat

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

 

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

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

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

 

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

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

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

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

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

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

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

– the invention of a constitutional right to human cloning.  

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

Souter Reportedly to Retire

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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.