December 22, 2013

Nuclear Option: Misplaced Conservative Outrage


Harry Reid's recent “nuclear” detonation left many conservatives in high dudgeon over "tyranny of the majority."   I recently argued that this contradicts the widely-held view that America is under the thumb of a corrupt bipartisan ruling class, viz.: (a) authoritarian reign by largely leftist oligarchic bureaucratic, judicial and media elite minorities over what President Nixon was once ridiculed for calling the "silent majority"; and (b) illegitimate domination by powerful over powerless minorities.   

Although Reid’s main goal was to pack the D.C. Circuit, justices were appointed to the Supreme  Court, long before his “nuclear option,” to rubber-stamp and provide faux legitimacy to metastasizing unconstitutional, legislatively created federal bureaucratic minority tyranny since the New Deal. Thanks to them, only the ruling class and "favored" minorities have rights, crushing those of the majority and "disfavored" minorities. Thus, quota discrimination has been imposed in violation of both the Constitution and explicit statutory language; property rights and religious freedom have been undermined; violent criminals have “rights” at the expense of the vast majority of law-abiding individuals; and, worst of all, massively harmful Obamacare has been legitimized in an egregiously disingenuous opinion written by a publicly threatened chief justice.

Reliance upon judges is misplaced. Ruling class Republicans have failed to exercise their existing power to block the tyrannical assault on freedom and representative democracy.  House leaders have blocked fulfillment of the very promise that made them leaders. If a genuine opposition party is not established, nothing can save the Constitution – or the representative democracy and freedoms that are the heritage of this country.

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November 21, 2013

New York Post piece on the "nuclear option" push in the Senate

My newest piece at the New York Post starts this way:
President Obama’s timing could have been better. Only two weeks ago in Texas, at a fundraiser, he bragged about “remaking the courts.” 
Obama told the audience: “In addition to the Supreme Court, we’ve been able to nominate and confirm judges of extraordinary quality all across the country on federal benches. We’re actually, when it comes to the district court, matching the pace of previous presidents. When it comes to the appellate court, we’re just a little bit behind, and we’re just going to keep on focused on it.” 
This was quite a change from June, when he accused Republicans of “cynically” engaging in “unprecedented” obstruction of judicial nominations. The president made those charges when he nominated three judges to the US Court of Appeals for the District of Columbia: Patricia Millett, Cornelia Pillard and Robert Wilkins. 
With Republicans filibustering these nominations over the last three weeks, Democrats are now threatening to deploy the “nuclear option” — in effect, ending the ability of senators to filibuster court nominations. On Monday, after the vote to break the filibuster on Wilkins failed, Senate Judiciary Chairman Patrick Leahy (D-Vt.) warned: “The talk about changing the cloture rules for judicial nominations will no longer be just talk. There will be action.” 
But this is all political rhetoric; the complaints are exaggerated. In fact, George W. Bush suffered stiffer resistance and longer delays for his nominees than Obama. Bush’s nominees to the DC Circuit faced confirmations dragging on for 707 days on average, with one particular nomination (Brett ­Kavanaugh) dragging on past 1,000 days. 
By contrast, Patricia Millett was nominated on June 4 this year and obtained a vote by the Senate just 149 days later, on Oct. 31; Pillard, 161 days; Wilkins, 167 days; and Caitlin Halligan, 433 days. Earlier this year, the Senate confirmed Obama’s nomination of Sri Srinivasan for the DC Circuit after a 346-day wait.  . . .
Continued here

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October 20, 2013

New piece at Politico: The dumbing down of America's judges

My piece at Politico starts this way:
Think that attending a top university and graduating at the top of the class is the key to your success? Not if you’re headed for a federal judgeship. In fact, today the most accomplished candidates for the bench are the most likely to be rejected. And this phenomenon has only gotten worse with the quality of America’s judges in marked decline. 
The evidence of so-called dumbing down is striking: Tracking federal judge appointments over the past four decades, I found that graduates of one of U.S. News and World Report’s top 10 law schools who also served on their school’s law review had a 30 percent lower confirmation rate than their peers who neither went to top law schools nor did particularly well. Looking at all the nominations from the Jimmy Carter through George W. Bush administrations, I also found that confirmation took about 65 percent longer for the first group — and 158 percent longer for students at top law schools who distinguished themselves further by getting clerkships on circuit courts and then the Supreme Court. On top of that, a federal judge whose opinions were cited 20 percent more often than their peers faced roughly a 60 percent longer confirmation process. 
So why are America’s best and brightest lawyers having such a hard time getting to the bench? A helpful analogy is jury selection. A few years ago, Greg Mankiw, chairman of Harvard University’s economics department, was called for jury duty. . . . .

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Appearance on C-SPAN to talk about "Dumbing Down the Courts," applying economics to understanding judicial confirmations

The video that runs about an hour is available here.  The C-SPAN intro is not completely accurate so you might want to skip the first 30 seconds.  I would have rewritten it as this:
John Lott talked about his book, Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench, in which he argues that partisan politicians don’t like to confirm smart judges from the other political party because they’re afraid that smart judges have the ability to influence other judges.   In his book, he says that judges who graduated in the top 10 percent of their law classes have much longer confirmation processes than judges who don’t. He spoke at an event hosted by the Orange County Federalist Society.

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Should Those Who Revere the Constitution Respect Those Who Don’t?

As one who deeply admires Justice Thomas and agrees with Tom Goldstein that he has been “our greatest justice,” I am distressed by Thomas’ televised public statements off the Court undercutting his courageous defense of the Constitution and rule of law on the Court. 
Having previously praised liberal activist justices as individuals, he subsequently proclaimed their written court opinions to be as worthy of respect as his own. But I contend here that this disregards opinions, in the most divisive cases, that are often value judgments disguised as constitutional interpretation. Thomas himself has made that point throughout his tenure.
In my view, to say that all value judgments are entitled to respect is to preach from the bible of leftist multiculturalism. Citing opinions Thomas has written, joined and opposed, I ask: are opinions entitled to respect when Thomas states that they (1) dissemble; (2) are lawless and illegitimate; (3) engage in arrogant usurpation of power, limited only by justices’ sense of what they “can get away with”; (4) are based on the belief by justices that blacks are inferior to whites; (5) use the same rationalizations earlier employed by slaveholders and segregationists; (6) sentence the most vulnerable  law-abiding citizens to lives of terror in order to protect gang members who inflict that terror, etc., etc.?
Of course, Thomas cannot be expected to publicly insult the activist justices he must work with. But this surely does not require him to go to the polar extreme by suggesting that his opinions, faithful to the law and reflecting widely accepted values, are no better than theirs. At a time when the left employs Alinsky rules, it is imprudent for conservatives to observe Marquis of Queensberry rules. Given detrimental abuse of power by many justices, it is ill-advised to legitimize what they do by declaring respectable the undemocratic imposition of their idiosyncratic harmful personal morality upon the American people.

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October 16, 2013

Fox News piece: Obama, other Democrats all wrong about Republican obstruction of judicial nominees

My newest piece at Fox News starts this way:
The Senate Judiciary committee will vote on either Wednesday or Thursday whether to confirm Robert Wilkins, President Obama’s nominee to the prestigious D.C. Circuit Court of Appeals --  the court often referred to after the Supreme Court as the “second highest court” in the country. 
President Obama has spared little rhetoric in threatening Republicans should they dare defeat or delay Wilkins’ nomination. When Wilkins was nominated in June, Obama accused Republicans of being “cynically” engaging in “unprecedented”obstruction of judicial nominations. 
Democrats claim that any fair consideration would guarantee Wilkins’ quick confirmation. After all, as they point out, Wilkins was quickly confirmed as a District Court judge in 2010 “without opposition.” 
But it might not be such smooth sailing, for after getting on the bench, Wilkins has made a number of controversial rulings -- recently striking down Texas' voter photo ID law and upholding aggregate campaign finance donation limits
The president and other Democrats complain that Obama’s nominees are suffering the most difficult confirmations ever. Many newspaper articles agree, such as in theNew York TimesUSA Today , and the Congressional Research Service
But, these numbers are fundamentally flawed. . . .
Continue here.

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October 15, 2013

Racial Preferences at High Court Today

Statement of CFJ President Curt Levey on the racial preferences case before the U.S. Supreme Court today:
(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Jennifer Gratz and Barbara Grutter in the University of Michigan cases in which the Supreme Court partially upheld race-based admissions, triggering the Michigan ban on racial preferences at issue in today’s case.)

In a talk to students last week, Supreme Court Justice Anthony Kennedy discussed the 1954 Brown v. Board of Education decision that outlawed racial segregation.  As reported by the Wall Street Journal, Kennedy described his reaction when that landmark ruling was handed down:
“I thought, ‘Injustice is over! No more discrimination!’” he said. Yet he then assumed his sister would have a career as either a nurse or a secretary. “The nature of injustice is you can’t see it in your own times,” Justice Kennedy said.
We hope that Justice Kennedy keeps that maxim about injustice in mind when deciding the important racial preferences case being heard by the Supreme Court today.  The case, Schuette v. Coalition to Defend Affirmative Action, is on appeal from the Sixth Circuit’s 8-7 decision last November striking down Michigan’s voter-approved ban on racial and gender preferences in admissions to public colleges and universities. 
Before Brown v. Board, Americans were so accustomed to segregation that many were blinded to its injustice.  Similarly today, many Americans are lulled by the pervasiveness and political correctness of affirmative action  into pretending that it does not involve discrimination. 
But make no mistake, the race-base admissions system at the University of Michigan that led to litigation and eventually a voter-approved ban involved huge, explicit preferences.  White and Asian applicants were subjected to a 20-point handicap, equivalent to the difference between an A and B average.
The Supreme Court’s liberal Justices subscribe to a theory of “benign discrimination,” in which discrimination at the University of Michigan and elsewhere is subject to less constitutional scrutiny because it favors so-called disadvantaged minorities, such as African Americans.  Putting aside the problem of lumping President Obama’s children together with inner city youth, the theory of “benign discrimination” is deeply disturbing precisely because of the truth elucidated by Justice Kennedy.  In every age, some forms of discrimination are fashionable and thus viewed as benign, blinding society to the injustice involved.  Constitutional theories that exempt popular discrimination from strict scrutiny should hardly be reassuring to those who value the Constitution’s role in protecting groups that are out of favor.
Reflecting the fashionableness of racial preferences among the nation’s intellectual elite, a majority of the Sixth Circuit stretched the law and logic to come up with a rationale for striking down Michigan’s preferences ban.  In one of the most outrageous examples of judicial activism in recent years, the Sixth Circuit claimed that the ban violates the U.S. Constitution’s Equal Protection Clause because it makes it more difficult for minorities to use the “political process” to attain preferential treatment in admissions.  In other words, the court said that requiring equal treatment regardless of race is a violation of equal protection.
In truth, it is not the voters of Michigan but the Sixth Circuit that distorted the political process by disenfranchising the state’s citizens on the question of whether their state should use race in admissions.  In 2006, the ban was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an overwhelming margin.
If the Supreme Court were to adopt the Sixth Circuit’s twisted logic, racial preferences would be forced upon the people of Michigan and other states, like California, where voters have passed similar bans.  We are hopeful that, instead, Justice Kennedy and his colleagues will keep democratic principles, equal protection and common sense in mind and help the Sixth Circuit to see the injustice in its decision.

October 08, 2013

CFJ Fights for Free Speech at High Court

Today the Supreme Court hears oral argument in the biggest campaign finance case since Citizens United, and the Committee for Justice has weighed in on the side of free speech.  CFJ’s amicus brief in today’s case, McCutcheon v. FEC, supports the Republican National Committee and campaign donor Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold.
Most observers believe the Court will strike down the aggregate limits at issue, which restrict the total amount of political contributions a donor can make over a two-year election cycle.  For example, a donor must comply not only with McCain-Feingold’s base limits – such as a $2600 per-candidate limit in each election – but also an aggregate or combined limit of $48,600 on contributions to all federal candidates over the election cycle. As a result, the contributor is limited to supporting no more than nine candidates if he gives each one $2600 for both the primary and general election.
CFJ president Curt Levey explained that “it is hard enough to square McCain-Feingold’s limits on per-candidate contributions with the First Amendment, but it is even harder to justify the aggregate limits, which serve no significant interest – constitutionally valid or otherwise – when added on top of the individual limits.”
Levey emphasized that “striking down the aggregate limits would be both important in its own right and a critical first step towards ending the Court’s second-class treatment of political contributions under the First Amendment.”
CFJ’s brief also focuses on the perverse effect of the aggregate limits, which serve to direct the flow of money away from candidates and political parties and towards entities, such as Super PACs and 501(c)(4) organizations – like Citizens United – that engage in independent expenditures.  In other words, said Levey, “the aggregate limits diminish the voice of people and organizations with an interest in moderation, compromise and consensus and amplify the message of those with narrower interests and often less moderate views. “
This effect, added Levey, “is completely counter to the public’s nearly unanimous desire for more political compromise and less hyper-politicization of campaigns.  As a 501(c)(4) organization, the Committee for Justice is well aware that (c)(4)’s and Super PACs cannot serve the unique and important consensus-building role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”
CFJ’s McCutcheon brief also focuses on the perception of corruption, the countering of which is one of the purported interests served by McCain-Feingold and relied on to defend its constitutionality.  CFJ’s brief details how public opinion surveys going back decades demonstrate that the aggregate limits do not and cannot diminish the public perception of corruption.  In fact, the surveys show that public distrust in the government is caused by factors other than campaign spending.
Moreover, if the per-candidate ceiling already serves the only interests identified by the Supreme Court as sufficient to justify contribution limits, as McCain-Feingold’s defenders assert, then the aggregate limits can add nothing more – except to ensure that no donor engages in too much political speech, an interest the Court has rejected.
Mr. Levey emphasized that CFJ’s McCutcheon brief is “part of CFJ’s larger mission of battling judicial activism.  Prior to the Roberts Court, the Supreme Court functioned more as legislators than judges when it came to campaign finance cases, bending the First Amendment to accommodate the push for more and more restrictions on campaign contributions.  The result was a politically convenient but constitutionally groundless interpretation of the First Amendment that allows the government to treat campaign contributions as a lesser form of speech.  We are very hopeful that the Supreme Court will take an important step in McCutcheon towards ending this constitutional wrong.”
CFJ’s brief was authored by Emory Law School’s Supreme Court Advocacy Project and CFJ President Curt Levey.  A copy of CFJ’s brief is available upon request.

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September 24, 2013

Dumbing Down the Courts

Committee for Justice president Curt Levey and noted economist and author John Lott Jr. will discuss Lott’s new book, Dumbing Down the Courts, in a conference call at noon on September 25.  The book is "a critical read for anyone who seeks to understand the judicial confirmation battles of recent decades," said former U.S. Attorney General Edwin Meese.
Lott’s book uses the largest, most detailed data set on judicial confirmations ever assembled to analyze both the reasons behind the increasingly politicized and protracted judicial confirmation process and the factors that determine a nominee’s chances for confirmation. Subtitled How Politics Keeps the Smartest Judges off the Bench, Lott’s book reveals that the brightest nominees have a reduced chance of being confirmed.
Mr. Levey will comment on the book based on his eight years at the center of judicial confirmation battles as general counsel and then head of the Committee for Justice.  Following remarks by Lott and Levey, the floor will be opened to questions from callers.  The dial-in number is 888-752-3232.  The call is part of the Federalist Society’s teleforum program.

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September 16, 2013

Obama’s Law Enforcement Priorities

Here is a graphic example of how the media protects federal judges by not reporting their outrages. On July 19, in U.S. v. Strong, a First Circuit majority upheld the seven-day jail sentence of Ronald Strong, a 50-year-old in prematurely poor health. 13 medications for heart and kidney problems produced a sudden uncontrollable attack of diarrhea in a federal courthouse, with a significant mess in a small one-person bathroom.  
While the case of Nidal Hasan, caught red-handed committing mass murder at Fort Hood, dragged on for four years, with many more years of appeals likely, Strong was charged by an Obama-appointed prosecutor within three days – three days! – with willfully damaging federal property, creating a hazard and creating a nuisance. He was found guilty within 113 days and lost his appeal within two years – before the Hasan trial even began.

In my view, it was prosecutorial abuse to even bring such a case and judicial abuse to uphold the conviction.

The essence of the devastating dissent (22) by Judge Torruella, a Reagan appointee, which should be read fully, was that the government had violated the very law it used to prosecute Strong, and he lacked the required criminal intent in dealing with what was, after all, a wholly unexpected accident.

By contrast, I contend that the majority judges, appointed by Clinton and Obama,

were clearly out to get Strong. To declare that he had been "willful," they resorted to rank speculation rather than proof.  Without demonstrating any causal connections, they (1) asserted that he had received "implied notice" of the regulation the government itself was required, but failed, to observe to assure actual notice; (2) cited his loss of a Social Security case; and (3) if that were not enough, found that he "may have" -- "may have"?! -- acted willfully because of the delay in his being given access to the bathroom.  
        Can any honest person believe that activist liberal judges would ever accept "may have" as proof in a murder case?
Finally, this case punctuates the critical importance of the presidents who appoint prosecutors and judges.

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August 22, 2013

Term Limits for Federal Judges?

I was asked what I thought of abolishing lifetime federal judicial appointments. This is a revised excerpt from my response:
Documented lack of federal judicial integrity has vitiated the very basis used to justify life tenure in the first place. ­­­­­­­­­­­­­­­However, although many remedies for judicial abuse have been proposed, none can now be adopted.
First, the federal judiciary is the last best hope of democracy’s losers. They are not going to give that up without a fight. Policies that cannot be adopted democratically are repeatedly imposed by judges – usually by stealth and unnoticed like noiseless and invisible thieves and worms, to paraphrase Thomas Jefferson. Yes, there are widely reported fiats such as on abortion and, recently, gay marriage. But these are the exception; in any event, most “journalists” focus on whether they like the results rather than on whether the results follow the Constitution or abuse judicial power.
Far more typical has been the gradual almost total neutering of the death penalty.
Second, although often unable to impose unpopular policies legitimately, democracy’s losers are strong enough to preserve judicial subversion of representative government. The Constitution, requiring extraordinary majorities, makes it far easier to block than to adopt amendments (except, of course, when the Supreme Court itself easily usurps amending requirements with reckless abandon).
Third, the Supreme Court is protected by the media. Unreported judicial outrages are limitless. In my view, the public would not tolerate rampant judicial abuse if actually informed.
Reform is now impossible. Unless overwhelming public support can be generated by exposing judicial lawlessness, in understandable language, to the disinfectant of enormous sunlight, it will only be an academic exercise in futility to muse about reform proposals.

June 27, 2013

DOMA: What Supremes Were Really Thinking

In the wake of yesterday’s decision (US v. Windsor) striking down the federal definition of marriage in the Defense of Marriage Act, legal experts are having a hard time making sense of what Justice Scalia called the “disappearing trail[s] of … legalistic argle-bargle” in the majority opinion.  Instead, we are left to guess what Justice Kennedy and his four colleagues were thinking when they wrote or joined the opinion.  Here’s our best guess at what those five Justices were really thinking when they struck down DOMA (quotes are from the majority opinion):
What the Supreme Court said yesterday:  “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”
What the Supreme Court was really thinking:  We don’t agree with DOMA, so the Congress that enacted it – and President Clinton, who signed it – must have been mean and homophobic.
****
Supreme Court:  “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”
Really thinking:  We’re sorry for going off on a tangent about federalism.  Please ignore the previous seven pages of this opinion.
****
Supreme Court:  New York’s recognition of same-sex marriage “reflects … its evolving understanding of the meaning of equality.”
Really thinking:  Our understanding of the meaning of equality will continue to evolve until it requires us to mandate recognition of same-sex marriage in all 50 states.
****
Supreme Court:  DOMA is an “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage.”
Really thinking:  It is implausible to claim that there’s no precedent for DOMA’s definition of marriage, so we have to settle for calling the statute unusual.
****
Supreme Court:  The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure [same-sex couples].”
Really thinking:  No discussion or analysis of the legitimate purposes put forth by DOMA’s supporters is necessary, because we already told you the supporters are mean and homophobic.
****
Supreme Court:  “New York was responding to the initiative of those who sought a voice in shaping the destiny of their own times … Private, consensual sexual intimacy between two adult persons of the same sex … can form but one element in a personal bond that is more enduring.” (internal quotation marks omitted)
Really thinking:  We may not excel at legal reasoning but, if any publishers are listening, we would be great at writing self-help books.
****
Supreme Court:  “The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”
Really thinking:  If you want to get fussy about precedent, maybe DOMA doesn’t really violate the Fifth Amendment's liberty interest.  But would you believe us if we told you that DOMA violates equal protection?
****
Supreme Court:  “While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”
Really thinking:  Law students, don’t worry if you don’t understand this.  We don’t either.
****
Supreme Court:  DOMA “humiliates tens of thousands of children now being raised by same-sex couples.”
Really thinking:  We’re telling you that kids look to federal law when determining whether to be embarrassed by their parents, and you are going to have to take our word for it because we’re the Supreme Court.
****
Supreme Court: “Responsibilities, as well as rights, enhance the dignity and integrity of the person.”
Really thinking:  This rhetoric doesn’t add anything to our legal analysis, but it works great when you want kids to do their chores.
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Supreme Court:  “This opinion and its holding are confined to those lawful marriages [recognized by the states].”
Really thinking:  There would be no reason for us to say this if the logic of the opinion really limited its holding to lawful marriages.  We would be stating the obvious.
****
Supreme Court:  “The power the Constitution grants [to Congress] it also restrains.”
Really thinking:  We don’t think this principle applies to the Supreme Court’s power, as we make clear with this DOMA decision.

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June 25, 2013

Court Ends Profiling of Southern States

Statement of Committee for Justice president Curt Levey on today’s Supreme Court decision in Shelby County v. Holder concerning the Voting Rights Act:

The Committee for Justice applauds the Supreme Court’s decision ending the federal government’s irrational discrimination against southern states based on an outdated, 50 year old formula.  While there was a rational basis for targeting southern states (plus Alaska) when the preclearance formula was written 50 years ago, continuing to do so until today amounted to geographic profiling based on outdated stereotypes.  Decisions based on such irrational stereotypes are the essence of impermissible discrimination.

Although there is already plenty of howling about this decision, this is not a Court that is unsympathetic to voting rights. Just last week, the Supreme Court, by a 7-2 vote, struck down an Arizona law demanding proof of citizenship from people registering to vote.  Moreover, even today’s decision took a narrow, cautious approach.  The Justices did not strike down Section 5 of the Voting Rights Act, just the formula used to implement it. And the heart of the Act, Section 2, remains intact.  The overreaction to the decision simply underscores the courage it took for the Supreme Court to right this wrong and end geographic profiling.

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June 24, 2013

End of the Road for Racial Preferences?

Statement of Committee for Justice president Curt Levey on today’s Supreme Court’s decision in Fisher v. University of Texas narrowing the use of race in admissions:

(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases – Grutter and Gratz – in which the Supreme Court last addressed the use of race-based admissions in higher education.)

We applaud the Supreme Court’s decision today that race may not be used as a factor in admissions where “workable race-neutral alternatives would produce the educational benefits of diversity.”  The decision means a diminished role for race and an increased emphasis on socioeconomic disadvantage in admissions.

The Supreme Court remanded the case for consideration of whether its standard was met by the University of Texas at Austin.  But that does not subtract from the importance of the new standard, which universities will ignore at their own peril given the Court’s lopsided vote – the 7-1 decision was joined by all of the liberal Justices except for Ginsburg (Kagan was recused) – and the opinion’s clear language.

The Supreme Court made clear that when evaluating a university’s claim that race-neutral alternatives (such as Texas’s Top Ten Percent Plan Texas) are insufficient to produce a diverse student body, “the University receives no deference." The less rigorous standard that resulted from some interpretations of Grutter, where good faith consideration of race-neutral alternatives was sufficient and judicial deference to schools was generous, is gone.  As the Court said today:
"Consideration … is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race." (internal quote marks omitted)

Most importantly from a practical standpoint, today’s decision shifts the burden of proof to universities: "[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

Today’s decision servers as a final warning to universities that the Supreme Court is serious about racial preferences being defensible only when race-neutral alternatives fail.  The next time a university that has not rigorously met this standard comes before the Court, it can expect to lose.  In that sense, today’s decision is reminiscent of the Supreme Court’s 2009 decision in Northwest Austin Municipal Utility District v. Holder, in which the Court by a similar majority (8-1) warned Congress that it needed to amend the constitutionally dubious preclearance coverage formula of the Voting Rights Act.  After four years of Congress ignoring the warning, the Supreme Court is likely to strike the formula down later this week in Shelby County v. Holder.

While today’s decision will not eliminate race-based admissions in the short-term, it will very likely curtail it precisely because race-neutral plans – such as Texas’s Top Ten Percent and similar alternatives that focus on socioeconomic and educational disadvantage rather than race – have been so successful in achieving diverse student bodies. As Committee for Justice president Curt Levey said nine years ago in a law review article following the Grutter and Gratz decisions:
“[S]chools that have already achieved diversity through race-neutral means will have a very hard time defending a return to race-based policies. …  [B]y UT-Austin President Larry Faulkner's own report, black and Hispanic enrollment recovered fully and minority academic performance increased at his flagship college after race-neutral methods were substituted for race-based admissions following Hopwood v. Texas. Faulkner may soon have to explain to a court why he decided to reintroduce race despite this success.”

In the longer term, we are hopeful that today’s decision presages the end of the road for admission systems that explicitly take race into account.  The Fisher decision is just a step – albeit an important one – along that road. No one can say how fast the end will come or how much more litigation will be required but, after today, the handwriting is on the wall for the decline of race-based admissions.

Ironically, the Supreme Court’s decision to remand the case rather than strike down Texas’s admission system  may hasten the demise of race-based admissions. By ensuring that the lawsuit against the University of Texas continues to be litigated – possibly going back up to the Supreme Court at some point -- the decision keeps the issue of racial preferences in the public eye.  That cannot be good news for advocates of racial preferences, because all indications are that Americans overwhelmingly oppose such preferences, as indicated both by the passage of anti-preference ballot initiatives in the blue states of Michigan, California and Washington and by numerous opinion surveys.  For example, a 2009 Quinnipiac University Poll found that Americans by a two-to-one margin “oppose affirmative action programs that give preferences to [blacks or Hispanics] in hiring, promotions and college admissions” (61% opposed and 33% supported preferences for blacks; 29% supported preferences for Hispanics).

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June 14, 2013

Supreme Court’s Fragile Majority

Former New York Times Supreme Court reporter Linda Greenhouse speculated in a column this week that the Supreme Court’s conservative Justices are “in a hurry,” as evinced by the Court’s choice of cases – specifically, two involving affirmative action (Fisher v. Univ. of TX and Schuette v. Coalition to Defend Affirmative Action) and one religion (Greece v. Galloway).  The reason for the hurry, she believes, “can be found in the faint but resonant drumbeat of conservative concern about the stability of the Roberts Court’s narrow conservative majority.”

We share Greenhouse’s observation that
“Most uninformed commentary on the future of the Supreme Court … has focused on Justice Ruth Bader Ginsburg, who just passed her 80th birthday … obscur[ing] the fact that the conservative justices are growing old at exactly the same rate.”

In fact, Greenhouse cites Committee for Justice president Curt Levey’s March 2013 op-ed as an example of the “faint but resonant” concern about one of the five center-right Justices leaving the bench:
“Curt Levey, a prominent conservative commentator, took the occasion of Justice Scalia’s birthday to observe, in a Fox News op-ed, that it was entirely likely that at least one of the five conservative justices would leave the bench during the remainder of the Obama presidency. The result, he warned apocalyptically, was ‘a Warren Court redux,’ one that would erase ‘all the strides conservatives have made since the Reagan era in containing judicial activism.’”

We are pleased that Greenhouse is bringing attention to the fragility of the Roberts Court’s center-right majority; there’s nothing to be gained from conservatives lulling themselves into a false sense of security. And we don’t disagree with her characterization of the theme of Levey’s op-ed as “be afraid, be very afraid” (see here for ten good reasons to fear a liberal Supreme Court majority). However, we take issue with Greenhouse’s claim that
“[Levey’s] account of exactly what the court under Chief Justice Earl Warren can be blamed for left a bit to be desired. ‘The Warren Court brought us Roe v. Wade,’ he asserted. In fact, it was the Supreme Court under Chief Justice Warren E. Burger that issued the 1973 abortion decision, with a 7-to-2 majority opinion joined by three of President Richard M. Nixon’s four appointees.”

The problem with Greenhouse’s claim is that it omits context by quoting only a fragment of the following sentence in the Fox News op-ed:
“Named for but outlasting Chief Justice Earl Warren, the Warren Court brought us Roe v. Wade and most of the other judicial excesses decried by conservatives.” (emphasis added)

In other words, Levey explains that “Warren Court” is shorthand for an era of liberal judicial activism on the Supreme Court that OUTLASTED Chief Justice Warren (the length constraints of an op-ed prevented a more detailed explanation).  The era persisted because of Nixon’s inconsistent Supreme Court appointments, which included Warren Burger, arguably ending only after Justices Scalia and Thomas joined the Court.

We say “arguably” because progressives like Greenhouse would contend that it is inaccurate to call a Court with four Nixon appointees “liberal,” and some conservatives would say that the era of liberal activism on the Supreme Court has yet to end.  In fact, many conservatives will be saying that loudly by month’s end if the Court’s decision on the Defense of Marriage Act goes the way we expect.

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Should the Best Justices Publicly Praise the Worst?


On television, Justices Thomas and Scalia “lavishly” praise colleagues whom Curt Levey suggests are nightmarish. My latest article explains and documents why oral public accolades by the best justices for the worst are not only unwarranted but refuted by their own written opinions.
 
Repeatedly in writing, Justices Thomas and Scalia have questioned the integrity of their colleagues; and accused them of arrogance, lawlessness, license, illegitimate abuse of power, basing decisions on no more than their own personal values, contempt for the Constitution, sowing confusion rather than providing clarity, hypocritically pretending to defend the weak against the powerful while actually favoring the powerful at the expense of the weak, protecting inconsequential expression while disdaining the heart of the first amendment, poisonous and pernicious racism and sexism, belief in black inferiority, jeopardizing the lives of good innocent people in order to save the lives of the most vicious and depraved, placing the welfare of terrorists above the lives of soldiers combatting them, mandating infanticide (the barbaric killing of human children), and numerous other sins.
 
These are very strange criteria for “good … honest … fabulous” justices. 
 
If it is unrealistic to expect Thomas and Scalia to criticize sharply in public those with whom they must work, cordial interpersonal working relationships surely do not require going to the opposite extreme. Even if it would be inappropriate to be publicly negative about other justices, there is no reason to give lay people the impression that rabid leftist judicial ideologues are fantastic rather than destructive. Facing the grave threat of losing even the current sometime constitutionalist Supreme Court majority, this can only lend legitimacy to and encourage the judicial arrogance, dishonesty and abuse of power against which Scalia and Thomas repeatedly have protested in writing.

If total calamity is to be averted, conservatives must effectively educate the public about dangers posed by extremist liberal judicial activism. Robert Bork was defeated by vicious lies. Leftist fanatics should be defeated by the little-known media-buried truth. 

My article provides an easily understood review of the Scalia-Thomas catalog of shocking truths.

See SSRN or here (with links), and here (without links).
 
 

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June 05, 2013

IRS: Why Obama Should Read the Papers

Last summer, CFJ president Curt Levey wrote about the IRS’s targeting of Tea Party groups – and, more generally, about the Nixonian attempts by the Obama Administration and its allies to silence conservative critics – after Senate GOP Leader Mitch McConnell spoke out about the problem. In an op-ed this week at Breitbart.com, Levey looks back at last summer’s articles and his interview with Sen. McConnell as a reminder that the IRS scandal and related wrongdoing could not have come as a surprise to anyone inside or outside the White House who was following the news.

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June 04, 2013

Why Obama Wants to Pack the DC Circuit

Statement of Committee for Justice president Curt Levey on President Obama’s announcement today of three nominations to the DC Circuit:

President Obama’s high-profile announcement today of three DC Circuit nominees – left-wing law professor Cornelia Pillard, U.S. District Court Judge Robert Wilkins and appellate attorney Patricia Ann Millett – is intended to provoke a fight with Senate Republicans rather than to address any need for additional judges on the Circuit.  A battle over these nominees is inevitable, both because the DC Circuit already has more judges than it needs and because nominees to this Circuit – the most powerful court in the nation after the Supreme Court – are subject to a higher level of scrutiny. 

Senate Democrats raised the already high bar to confirmation of DC Circuit nominees when they blocked two stellar Bush nominees to the Circuit, Miguel Estrada and Peter Keisler, and kept President Bush’s other four nominees to the Circuit waiting between one and three years.  Obama appeared to concede as much today when he said “Democrats weren’t completely blameless when I was in the Senate.” Left unsaid was the fact that there would not be three vacancies on the DC Circuit now if not for the Democrats’ obstruction of Estrada and Keisler.

After more than four years of relative disinterest in lower court nominees – Obama has not lobbied for any of them nor appeared alongside them before today – why is the President suddenly so concerned about the DC Circuit?  While we cannot read Obama’s mind, we can rule out any possibility that he is genuinely worried that the DC Circuit doesn’t have enough judges.  Despite there being two DC Circuit vacancies since he took office, Obama waited 20 months to make his first nomination to the Circuit and three and a half years to make his second.

That’s because Obama was well aware that the DC Circuit has more than enough judges.  The Circuit’s eight active judges and six senior judges are the equivalent of eleven full-time judges, which is precisely the capacity specified by the 2008 statute that reduced the court’s judges from 12 to 11 due to a low workload. Five years later, the DC Circuit’s workload remains the lowest of any of the 12 circuit courts.

President Obama’s newfound concern about DC Circuit vacancies is even harder to explain in light of the glacial pace of his judicial nominations generally, including to courts that badly need additional judges.  He has made nominations to fill only one-quarter of the 32 vacancies classified as “judicial emergencies” (none of the 32 are on the DC Circuit).  If he has any genuine concern about judicial vacancies, we suggest Obama support Sen. Grassley’s bill to shift two of the unfilled DC Circuit seats to the overworked Second and Eleventh Circuits.

We suspect the President’s sudden interest in the DC Circuit is motivated by several political factors. One, Obama is undoubtedly unhappy with several DC Circuit decisions – especially the one that found his recess appointments to the NLRB to be unconstitutional – and wants to shift the Circuit to the left by adding liberal judges to it.  Two, by provoking a filibuster showdown with Senate Republicans, Obama is providing Majority Leader Harry Reid with an excuse to use the nuclear option to permanently eliminate the minority’s right to filibuster nominees.  Three, President Obama may be making a big deal about DC Circuit nominees largely for show, hoping to blunt criticism from his allies over the glacial pace of judicial nominations.

Whatever Obama’s motivation, Senate Republicans should hold firm in the fight the President has provoked with today’s nominations.  Short of Supreme Court review, the best hope of blocking Obama’s attempts to bypass Congress with overreaching executive orders and regulations lies in the DC Circuit, which hears many of the applicable cases.  President Obama should not be allowed to tilt the Circuit, which currently has four Republican and four Democratic appointees, to the left.  

Any attempt by Obama and Reid to use this fight as an excuse for crippling the minority’s rights in the Senate must also be fiercely resisted.  If the minority’s right to filibuster nominees is lost now, it won’t be available if and when a center-right vacancy on the Supreme Court gives President Obama a chance to install a liberal majority and push the Court sharply to the left.

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June 03, 2013

DNA Decision Sets Dangerous Precedent

Statement of Committee for Justice President Curt Levey on today’s Supreme Court decision concerning collection of DNA samples:

An alarming precedent was set today when the U.S. Supreme Court decided 5-4 in Maryland v. King that the police can take DNA samples from those arrested for, but not yet convicted, of a serious offense. 

In a devastating dissent joined by three of his colleagues, Justice Scalia explained why the majority’s decision is a big step towards a dangerous loss of liberty and privacy.  “Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote, reminding us that “Nearly one-third of Americans will be arrested for some offense by age 23.”

While the Maryland statute at issue in this case does provide some safeguards, government guarantees of privacy and confidentiality are far from watertight. Consider the recent problems at the IRS, which include the agency leaking nine confidential applications of conservative non-profits to ProPublica, and leaking the tax return of the National Organization for Marriage – a pro-traditional marriage organization – to a gay rights group.

We suggest that instead of inventing privacy rights – concerning abortion and homosexuality for example – that require a long stretch from the text of the Constitution, the Supreme Court should focus on protecting the privacy rights that are clearly spelled out in the Fourth Amendment. In his dissent, Justice Scalia points out that “The Fourth Amendment lists ‘persons’ first among the entities protected against unreasonable searches and seizures.”

The majority tries to justify its decision by analogizing Maryland’s collection of DNA to the fingerprinting of arrestees for identification purposes.  However, Justice Scalia destroys that analogy by carefully demonstrating that Maryland is using DNA not to identify arrestees but to accuse them of additional crimes.  We would add that the majority’s contention that there is little difference in intrusiveness between fingerprinting and DNA collection brushes aside the fact that when the government possesses your DNA, it possesses the detailed blueprints for your entire body.

No doubt, some of CFJ’s supporters cheered today’s decision because it advances the important cause of crime solving. We are very sympathetic to that cause, but it must be pursued in a manner that complies with the Constitution’s vital limits on the power of the government.  Too often, conservatives forget that big government poses a threat to our liberties not only through out-of-control regulation, taxing and spending, but also through over-zealous crime fighting.

As Justice Scalia concedes,
“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. …  Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver's license, or attends a public school.”

We echo Justice Scalia’s points here and note that the noble cause of solving crimes must occupy a lower place in constitutional analysis because, unlike the right to be free from unreasonable searches and seizures, it is not explicitly guaranteed by the Constitution.  That could be changed by amending the Constitution, but there is little support for such an amendment.

Finally, Justice Scalia reminds us of the irony of today’s decision:
 “[T]he ironic result of the Court's error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment's protections ought to be most jealously guarded: people who are innocent of the State's accusations.”

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May 17, 2013

CFJ: Overturn Contribution Limits

This week, the Committee for Justice filed an amicus curiae brief in McCutcheon v. FEC, the next big campaign finance case before the U.S. Supreme Court.  CFJ’s brief supports the Republican National Committee and individual plaintiff Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold.  The Supreme Court will hear arguments in the case this fall.

CFJ president Curt Levey described the brief as “part of CFJ’s continuing effort to battle judicial activism.  Prior to the Roberts Court, the Supreme Court functioned more as legislators than judges on this issue, bending the First Amendment to accommodate the push for campaign finance reform.  The result is a politically convenient but constitutionally groundless interpretation of the First Amendment that allows the government to treat campaign contributions as a lesser form of speech.”

The aggregate limits being challenged in McCutcheon restrict the total amount of political contributions a donor can make over a two-year election cycle, even if the donor’s individual contributions comply with McCain-Feingold’s base limits – for example, the $2,600 per candidate per election limit.  The aggregate limits specify that no one can give more than $48,600 to all federal candidates combined over the election cycle. Thus, the contributor is limited to supporting nine candidates if he gives each one $2600 for both the primary and general election.

Similarly, there is a two-year aggregate limit of $74,600 on contributions to non-candidate committees, such that a donor could not give $32,400 per year – the base limit – to committees for both Senate and House races (say, the NRSC and the NRCC).

Mr. Levey notes that “It is hard enough to square McCain-Feingold’s base limits with the First Amendment, but it’s even harder to justify the aggregate limits, which serve no significant interest – constitutionally valid or otherwise – when added on top of the base limits.  Striking down the aggregate limits would be both important in its own right and a critical first step towards ending the second-class treatment of political contributions under the First Amendment.”

CFJ’s brief points out that the base limits are purported to serve the only two interests – countering the occurrence or perception of quid pro quo political corruption – identified by the Court as constitutionally sufficient to justify contribution limits.  Therefore, the aggregate limits can add nothing more than ensuring that no one engages in too much political speech, an interest the Court has rejected.

CFJ’s brief goes on to focus on the perception of corruption, detailing how public opinion surveys over the last several decades demonstrate that the aggregate limits do not and cannot affect the public perception of corruption.  In fact, the surveys show that public distrust in the government is caused by factors other than campaign spending.

CFJ’s brief also focuses on the perverse effect of the aggregate limits, which serve to direct the flow of money away from candidates and political parties and towards entities, such as Super PACs and 501(c)(4) organizations, that engage in unregulated independent expenditures – in other words, away from organizations with an interest in moderation, compromise and consensus and towards groups with narrower interests and often less moderate views.

Explains CFJ’s Levey, “The resulting flow of money away from candidates and political parties and towards independent expenditure groups is completely counter to the one interest expressed almost unanimously by the public – the desire for more political compromise and less hyper-politicization of campaigns.  As a 501(c)(4) organization, the Committee for Justice is well aware that (c)(4)’s and Super PACs cannot serve the unique and important role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”

CFJ’s brief was authored by Emory Law School’s Supreme Court Advocacy Project and CFJ President Curt Levey.  A copy of CFJ’s brief is available upon request.

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May 07, 2013

The Case for Citizens United

The Citizens United v. FEC decision has drawn a lot of criticism for giving corporations rights to free speech. Some have argued for a constitutional amendment to limit corporate speech. The CATO Institute recently published a Policy Analysis by John Samples making the case against these amendments. Samples writes,
Concerns about the putative political and electoral consequences of the Citizens United decision have fostered several proposals to amend the Constitution. Most simply propose giving Congress unchecked new power over spending on political speech, power that will be certainly abused. The old and new public purposes cited for restricting political spending and speech (preventing corruption, restoring equality, and others) are not persuasive in general and do not justify the breadth of power granted under these amendments.
The core of his argument is that any perceived negative effects of the Citizens United decision are not worth expanding the rights of congress to control freedom of speech.

Attacks on Religious Freedom

The Obama administration has made serious efforts to limit free exercise of conscience and religious speech in the public square. This is the position taken by Alan Sears writing for the National Catholic Register. He chronicles the administrations anti-religious policies,
the Obama administration's many attacks on religion include allowing U.S. taxpayer  dollars to be transferred to non-governmental agencies that perform abortions abroad; defunding successful efforts to halt sex trafficking for advocates opposing abortion; discontinuing the White House tradition of sponsoring an event on National Prayer Day; ordering the Justice Department to stop defending the federal Defense of Marriage Act; and eliminating the reference to our “Creator” when quoting the Declaration of Independence. 
Further, Sears argues that the passage of healthcare reform has hurt freedom of conscience,
The attacks on religious freedom escalated with the creation of Obamacare. The administration has ordered American employers to provide employee health insurance that covers “free” contraception, sterilization and abortion-inducing drugs — or face crippling fines.