Souter to Retire

NPR is reporting that Justice Souter will retire following the conclusion of the current term.

"NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the court's current term.

The court has completed hearing oral arguments for the year and will be issuing rulings and opinions until the end of June.

Souter is expected to remain on the bench until a successor has been chosen and confirmed, which may or may not be accomplished before the court reconvenes in October."

Souter Still Hasn't Hired Law Clerks for Fall Term

Does this mean that he is going to retire at the end of this term?  Souter is often late to hire, but this is really late even for him.  The AP provides some alternatives:

"The justice always has been the last to hire, Ward said, because he likes to gauge how people do as clerks for lower federal court judges. Yet other justices are hiring earlier and earlier. Some even have made offers to lawyers for the middle of 2010.

'So it may very well be that Souter is waiting longer out of frustration with the process,' Ward said.

Also possible is that Souter has not finished his hiring, but has sworn the others to secrecy until he's done. This is the Supreme Court, after all, which has resisted cameras and other intrusions.

Less likely, but not inconceivable is that the rough economy is affecting even the top of the legal profession and that Souter's current crop of clerks will be around for another term. Or another justice will leave this summer and Souter already has agreed to employ his colleague's clerks."

Speculation about a Justice's retirement is always tricky, but Souter seems to be sending some very strong signals that he will be stepping down at the end of the current term.

Specter's Switch and Judges

As the ranking minority member of the Senate Judiciary Committee at the time of his switch, there has been ample discussion of what Specter's switch means for Obama's judicial nominees.  So far Specter has said all the right things about remaining independent and not being a guaranteed vote.  This all sounds well and good, but as Nate Silver reports it may not remain true.

"When Congressmen have changed parties in the past, this has generally been accompanied by relatively material changes in their voting patterns ... All of the party-switchers moved toward the direction of their (new) party caucus after making the change, although with somewhat varying degrees of magnitude."

Hopefully any switch in Specter's voting patterns will not encroach into the arena of judicial nominees.  While the Democrats have the numbers to confirm just about anyone Obama nominates, Specter has a great opportunity to ensure that a thorough and fair debate is conducted for each and every nominee.  As the BLT points out:

"The party switch would make a difference for an Obama nominee if Specter, as a member of the president’s party, were to feel a greater obligation to help end debate and bring a nomination to a vote. He did not indicate today whether he would be more likely to do so."

Hopefully Specter will err on the side of thoroughness and continue to,as he said, "counsel the chairman to have adequate time to prepare."  It remains to be seen.

Justice Kennedy to be Deciding Vote in Voting Rights Case

Oral argument was heard yesterday in the case of Austin Municipal Utility District v. Holder.  Based on oral argument a consensus has emerged that Kennedy will once again be the swing vote.  As the Wall Street Journal reports, Justice Kennedy seems most concerned with issues of State sovereignty.

Justice Kennedy seemed most troubled by the formula used to place areas under Section 5, which relies on decades-old data regarding literacy tests and other pretexts once used to suppress minority votes. He questioned why certain states, primarily in the South, remain under Section 5 while others that could have equal or greater problems of racial disparity face no preclearance requirement.

"Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other," Justice Kennedy said.

The other Justices seemed to also be aware of this and structured their questions more for his benefit than their own.

In a 1997 case, Justice Kennedy had written that congressional remedies had to be "congruent" and "proportional" to the rights at issue. Justice David Souter stressed the lengthy evidence that Congress amassed before its 2006 renewal, including hundreds of actions over 20 years to enforce Voting Rights Act protections. ...

Citing the "congruent and proportional" formula, Chief Justice John Roberts said that only 1/20th of 1% of preclearance requests are denied.

"That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the 15th Amendment," he said, citing the 1870 Amendment barring racial discrimination in voting and granting Congress power to enforce it.

What remains to be seen is whether Kennedy will take sides or stake out some middle ground that eases the burden on targeted municipalities. 

Fair Weather Federalists

In studying for my Criminal Law final I ran across a delicious nugget in a concurrence authored by Justice Stevens, with whom Souter and Ginsburg joined.  The case was United States v. Oakland Cannabis Buyers' Cooperation. 

"The overbroad language of the Court's opinion is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union. ... particularly in situations in which the citizens of a State have chosen to 'serve as a laboratory' in the trial of 'novel social and economic experiments without the risk to the rest of the country.'"

The lesson from the Left: when you like the policy, federalism is great; when you don't, create a constitutional right.

Impact of Specter’s Party Switch

In the last 24 hours, the Committee for Justice has received a lot of queries about Sen. Specter’s switch to the Democratic Party. Here are some of the questions, along with the answers of CFJ Executive Director Curt Levey.

Q: Will Sen. Specter’s voting record on nominees change much?

We’d be surprised to see a substantial change. We were glad to hear Sen. Specter’s promise that he will continue to be an independent voice and vote, and that he will not be a dependable 60th vote on cloture. Just this morning at the White House, Specter reiterated that on the issues where he “traditionally differs from the Democrats” -- which have included judicial and Justice Department nominees – he will continue to differ. Specter has already said that he will continue to oppose the Obama legal nominee that is of greatest concern, namely Dawn Johnsen, who was named to head the Justice Department’s Office of Legal Counsel.

We and many others will do our best to hold Sen. Specter to the promises he made in the last 24 hours, as well as to the promises he made earlier this year. The latter includes use of the filibuster if Judiciary Chairman Leahy refuses to honor the traditional requirement that both home state senators consent before a district or circuit court nominee can get a hearing. It also includes Sen. Specter’s demand that Leahy not rush nominees through the Judiciary Committee and his call for the President to renominate three unconfirmed Bush appeals court nominees with bipartisan support – Peter Keisler, Judge Glen Conrad, and Judge Paul Diamond.

What’s most likely to ensure that Sen. Specter sticks to his promises, rather than drifting to the left, is his awareness that he needs to worry about his Republican opponent in the 2010 election rather than about winning a Democratic primary. After all, President Obama, Senate Majority Leader Reid, and Pennsylvania Governor Rendell have all pledged their support in the primary.

Q: How does the loss of the filibuster threat affect the judges issue?

First, keep in mind that Senate Democrats are not at 60 seats yet. The legal battle between Norm Coleman and Al Franken needs to run its course. We call on Minnesota Gov. Tim Pawlenty to ensure that something as momentous as a filibuster-proof majority in the U.S. Senate has a stamp of legitimacy from the Minnesota Supreme Court and, should they become involved, the federal courts.

That said, 60 Democratic senators will not always be sufficient to prevent a filibuster. Sen. Specter and at least a few red state Democrats will be open to voting against cloture should Republicans decide to filibuster Obama’s most extreme nominees. Specter and Democrat Ben Nelson of Nebraska have already lined up against Dawn Johnsen. Frankly, it’s CFJ’s job to remind red and purple state Democrats that the values of nominees like Johnsen are radically different than those of the folks who sent them to Washington. The good news about the 2008 election is that are now more red state Democrats to target, and Specter is now in a position to rally them.

Q: Will having a new ranking Republican on the Judiciary Committee affect the judges battle?

Having a new Ranking member is likely to be a plus. Arlen Specter worked hard to maintain a cordial relationship with Chairman Leahy, but his civility was not always reciprocated by Leahy, especially when it came to judicial nominees. The shameful treatment of D.C. Circuit nominee Peter Keisler, who went two years without a committee vote under Leahy despite repeated requests by Specter, is just one example. Sadly, getting under Leahy’s famously thin skin seems to be more effective than civility, so we believe it’s time to try a more confrontational approach.

Several of the Judiciary Committee Republicans in contention to become Ranking Member are capable of standing up to Sen. Leahy, but Sen. Sessions of Alabama is perhaps the most likely pick because he is not ranking on another committee, nor is he part of the leadership. Sessions would be an excellent choice. He totally gets the judges issue, has a brilliant legal mind and a commitment to principle, and exhibits calm but firm resolve.

That said, we are not amongst those who are glad to see Sen. Specter leave the party. We will always admire and appreciate his leadership in securing the confirmations of Supreme Court Justices Roberts and Alito. Specter’s candor about switching parties to enhance his prospects for reelection was refreshing and reminds us of his many fine personal qualities. His focus on reelection is good news in that it must mean that he expects to recover fully from a recent recurrence of cancer, and we wish him continued good health.

Q: What impact do the GOP’s declining numbers in the Senate, including Specter’s party switch, have on the prospects for maintaining a center-right majority on the Supreme Court?

The five center-right Justices are all unlikely to retire in the next four years, so the answer largely depends on who wins the next few presidential elections. The next time a GOP President fills a Supreme Court vacancy, he will likely be able to count on the support of various red and purple state Democrats. That will probably be enough for confirmation if there are 40 or more Republicans in the Senate at the time, which is likely given that nearly three-quarters of the Senators up for reelection in 2012 will be Democrats.

In any case, it’s hard to draw any conclusions from Sen. Specter’s party switch. It was precipitated by the change in party registration of two hundred thousand GOP voters in Pennsylvania in the lead up to the Clinton-Obama primary last spring. The desire of Pennsylvanians to vote in that exciting primary had grave consequences for Specter, but it’s hardly evidence of a permanent realignment in Pennsylvania, no less across the nation.

Consider the many pundits who, just four years ago, said that Democrats had little chance of becoming a majority party because they were only competing in half the nation. That should remind us all of the perils of speculating about 2012 and beyond.

Bybee Defends Signing of Interrogation Memos

Amid recent reports that he regretted signing the interrogation memos, Judge Jay Bybee has released a statement standing by his previous decisions.  The New York Times has the report.

 “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

This will certainly enrage the left even further.  The Times has already called for his impeachment so this statement just throws gasoline on the fire.  The call has been to go after Bybee and the other lawyers that wrote the opinion, but I have yet to hear how they plan to prosecute the lawyers who merely gave advice without prosecuting the people who actually approved and performed the enhanced interrogations.  I mean prosecutorial discretion provides pretty broad leeway, but this just seems beyond the pale.  Also, any investigation is likely to implicate Nancy Pelosi's role in approving such measures in 2002, which I am sure the Democratic party would like to avoid.  Additionally, with Cheney requesting a full release of the results of the enhanced interrogation techniques and now Bybee standing by his decision I suspect the Obama administration is ready for this headache to go away.  He has said it is up to Eric Holder to determine whether prosecution is warranted, and with a new CBS/NYT poll showing that 51% oppose an investigation I suspect it will quietly go away.  

Most importantly, this is a prime example of what happens when one attempts to play politics with national security.  To say that it turns into a cluster fark is starting to seem like an understatement.

Specter to Switch Parties

"HUMAN EVENTS has learned from staff sources that Sen. Arlen Specter (R-Pa) is about to announce his switch to the Democratic Party."

The Voting Rights Act in the Age of Obama

This week the Supreme Court will hear oral argument in Northwest Austin Municipal Utility District No. 1 v. Holder.  The case calls upon the Court to decide whether Section 5 of the Voting Rights Act of 1965 is constitutional.  That provision requires selected jurisdictions to get approval from the DOJ to when they want to make any change to any practice related to voting.  Roger Clegg provides three reasons why Section 5 fails the relevant legal standard.

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).

Related to the legal arguments is how the election of a black president should influence the court.  Andy Liptak points to the inevitable question: "Is a law rooted in the age of Jim Crow still needed in the Obama era?"  Even liberals are unsure how to treat Obama's election when it comes to issues related to race.

Ellen D. Katz is a liberal law professor and a big fan of the Voting Rights Act of 1965, which she calls the most effective civil rights legislation in American history. “It’s sacred,” she said. “It’s holy.”

But Professor Katz is torn about what the Supreme Court should do in a case asking it to strike down a central part of the law. She cannot shake the feeling that the election of the nation’s first black president has changed everything.

“This election was momentous,” said Professor Katz, who teaches voting rights and legal history at the University of Michigan, “and it arguably presents the moment when Congress should close out this regime.”

How the Court treats Obama's election in this context may foreshadow how the Court will deal with other matters such as racial preferences going forward.

What an Ingenious Idea

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Justice Breyer's School Boy Tale

How about a little humor courtesy of Justice Breyer.  It came today during oral argument in the case of Safford United School District #1 v. Redding.  The issue in the case is "whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy."  Justice Breyer got a bit tripped up during one of his infamous stream-of-consciousness hypotheticals.

"Breyer was attempting to put a hypothetical question to the girl’s lawyer about how common it is for students to be partially undressed while at school, such as when they are changing for gym class.  But, as the transcript shows, it all went a bit wrong.

“So what am I supposed to do? In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear.”

He stopped in his tracks as the entire courtroom dissolved into laughter. Then he attempted to dig himself out:

“Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know.”

Whether or not the question was purely hypothetical remains unknown."

White House Refuses to Accept Inter-Agency Memo Declaring Detainess Too Dangerous to Release in U.S.

Once again the White House is refusing to accept a report that doesn't agree with their prferred policy ends.  We saw this with AG Holder's rejection of a DOJ memo declaring the D.C. voting rights bill unconstitutional.  Well, they are at it again.

"Reviewing the Uighurs detention, the inter-agency panel found that they weren’t the ignorant, innocent goatherds the White House believed them to be.  The committee determined they were too dangerous to release because they were members of the ETIM terrorist group, the “East Turkistan Islamic Movement,” and because their presence at the al-Queda training camp was no accident.  There is now no ETIM terrorist cell in the United States:  there will be one if these Uighurs are released into the United States.

According to Defense Department sources, the White House legal office has told the inter-agency review group to re-do their findings to come up with the opposite answer." (emphasis added)"

This type of opinion shopping makes us less safe.  Instead of properly weighing national security concerns, the White House seems intent on enacting policies that, despite their constitutionality or harm, allow them to score political points.  

Paul Mirengoff asks some questions that logically flow from the White House's rejection of the Uighur memo.

Would anyone be surprised if, indeed, the Obama administration is overruling the intelligence community in order to implement preconceived policy preferences? Would anyone be surprised if those policy preferences include erring on the side of aiding suspected terrorists (to "repair our image," of course) rather than protecting the United States?

Between the release of the "torture memos" and the refusal of the Uighur findings, no one should be surprised any longer.

NYT: Impeach Bybee; What About Pelosi?

The New York Times ran an Editorial on Sunday calling for the Impeach of 9th Circuit Judge Jay Bybee, who served as Assistant Attorney General under bush when the memos were written.  

"These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it."

What about Nancy Pelosi and the other congressmen who were briefed on the techniques contained in the memos?  It takes no courage for the NYT to call out these Bush administration lawyers or to suggest putting Gonzales, Rumsfeld, or Cheney on the stand.  If they are truly horrified by the memos and not just looking to score political points, then they should target everyone who knew about the memos and the enhanced interrogation techniques contained in them including the Speaker of the House, Nancy Pelosi.  Now let's turn to what Pelosi knew and when.

"In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

'The briefer was specifically asked if the methods were tough enough,' said a U.S. official who witnessed the exchange."

As the Director National Inteligence Dennis Blaire put it: "“Those methods, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing.”  Apparently on a bright sunny day in September of 2002 they didn't seem so "graphic and disturbing" to Pelosi and company.  As the post article block quoted above went on to say,

"'Among those being briefed, there was a pretty full understanding of what the CIA was doing,' said [Porter] Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. 'And the reaction in the room was not just approval, but encouragement.'"(emphasis added)

Where is the Times in calling out these legislators?  If Bybee is "unfit for a job that requires legal judgment and respect for the Constitution," shouldn't Pelosi be equally unfit for her job as Speaker of the House, which certainly requires respect for the Constitution?  I highly doubt the Times will see it that way.  

Update: Ed Morrissey applies a similar logic to the release that Obama may pursue legal charges against the authors of the "torture memos."

"Obama can open the door to prosecutions, but who will he prosecute?  He’ll find it difficult to go after the interrogators, who relied on some strange opinions from the normally-binding Office of Legal Counsel.  The prosecution can try undermining that by claiming it as a Nuremberg defense, but this wasn’t Nazi Germany and the OLC exists to give this kind of legal direction.  Interrogators relied on those interpretations in good faith.

That leaves George Tenet and the OLC attorneys, but they didn’t conduct the torture, and the OLC didn’t order the interrogations, either.  They responded to a request from the CIA to opine on the legality of the procedures.  Holder can prosecute Tenet, but then he’d also have to file charges against several members of Congress who were briefed on the procedures and never objected — including current Speaker Nancy Pelosi.  If Tenet would get prosecuted for ordering the interrogation techniques, then Pelosi and others would have to get prosecuted for being accessories in not taking action to stop them."

Filibustering Presidential Nominees

There has been rising speculation of the potential use of the filibuster in regards to Dawn Johnson and Harold Koh.  Walter Dellinger takes to the pages of the Wall Street Journal to remind the GOP of its previous stance against the use of the filibuster and to lay out his case for why it shouldn't be used, particularly against nominees who serve the president.

"In the past, Republican senators have publicly asserted that it is either "unacceptable" or "unconstitutional" to filibuster an up-or-down vote of a nominee submitted by the president for Senate "advice and consent." I cannot believe they would now abandon that principle.

...

I have disagreed with filibusters of executive-branch nominees whether done by Democrats or Republicans. But Democrats have at least been consistent in maintaining, under presidents of both parties, that filibusters were permissible. Those who would now filibuster the nominations of Mr. Koh and Ms. Johnsen would engage in activity that they recently condemned in stark terms."

I happen to agree with Dellinger on the use of the filibuster for nominees that serve the president, but his hypocrisy argument falls flat.  As far as I am concerned the GOP made its case against the use of the filibuster throughout the Bush administration and lost.  As Dellinger notes:

"Many Democrats have in the past defended filibustering executive-branch nominees. Democrats filibustered Mr. Bush's nomination of John Bolton to the United Nations post, and blocked his nominations of Eugene Scalia and Otto Reich by delaying votes. Some judicial candidates, like Miguel Estrada, were also subject to actual or threatened filibusters. Judicial candidates, however, present different considerations. Unlike judges, executive-branch nominees work for the president, and he should have greater discretion in deciding who serves in his administration."

The Democrats' argument seems to have taken the day.  I see no reason for the GOP to self-handicap its efforts to oppose those nominees of President Obama it deems particularly offensive.  For the Democrats to somehow criticize the GOP use of the filibuster reeks of the same hypocrisy Dellinger attempts to dole out to the GOP.  The New York Times has previously attempted this same "for me but not for thee" approach to the filibuster, but for me it just rings hollow.

Surprise, Surprise NYT Thinks ABA Not Liberal Enough

Curt reported on a study showing the ABA has a liberal bias and why the CFJ opposes their role in the judicial nomination process.

The Committee for Justice opposes this pre-nomination role for the ABA, both because of the conflict of interest it creates and the ABA’s ideological bias. The ABA’s ratings of judicial nominees already play a substantial role in the Senate’s confirmation of nominees, but those ratings can hardly be considered objective if the ABA played a role in the selection of the nominees.

The New York Times, however, is not convinced by this study.  Shocker!  Identifying liberal bias in another might force the Times to look in the mirror, which they will never do.

As the A.B.A. resumes this role, a new study suggests that it may have a liberal bias. There is little support for this claim. Indeed, there are signs that the group has been cowed by conservative critics in recent years into approving less-than-qualified nominees. The A.B.A. needs to ensure that its evaluators make assessments based on the nominees’ merits, not on political pressure.

What proof does the Times put forth to refute this study?  As I have noted before, you will just have to trust them.  In support of their claim that the ABA has cowed to conservatives they offer one example: Leslie Southwick.  Jonathan Adler shows why the Times' reasoning is lacking.

The ABA gave Southwick a unanimous "well-qualified" rating when President Bush nominated him to the U.S. Court of Appeals for the Fifth Circuit (for which Southwick was eventually confirmed, 59-38). Given Southwick's extensive experience -- a stint at DoJ and over a decade on a state appellate court -- the high rating was understandable. Why does the NYT think Southwick was one of Bush's "most deeply flawed nominees"? Because of two cases in which he joined objectionable majority opinions -- two out of the over 7,000 in which Southwick participated as a judge. Even assuming Southwick was wrong in those two cases -- and the NYT makes no effort to describe the legal issues and arguments in the two cases -- two erroneous decisions in over a decade hardly makes a judge "less-than qualified" (something my conservative friends may want to keep in mind when it comes to Obama nominees with extensive lower or state court experience).

The Times closes with a piece of rich hypocrisy.  

The group’s screeners should evaluate the Obama nominees based on their qualifications, judicial temperament and views of the law — without imposing any ideological litmus tests.

If only the Times would follow their own advice and report on judicial nominees "without imposing any ideological litmus test."  I won't be holding my breath for that to happen.  On all things judges, the Times coverage reeks of partisan hackery that isn't likely to end soon.

Why Ginsburg's Reasoning for Citing Foreign Legal Decision is Wrong

The New York Times ran an article on Saturday that aired Justice Ginsburg's defense to the use of foreign law by American judges.  I want to highlight one passage in particular.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” she said, describing the question presented in the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’ ”

The message of the decision, Justice Ginsburg said, was “that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity.” Then she asked, “Now why should I not read that opinion and be affected by its tremendous persuasive value?”

At the Volokh Conspiracy, David Bernstein takes apart Justice Ginsburg's reasoning above and describes why it is not her job to issue a ruling based on a moral judgment about the law.

I don't know that Ginsburg is accurately describing Israel's law, which as I understand it allows the use of "moderate physical pressure" in exigent circumtances. (Also, an aside, the Israeli Supreme Court is a rather dubious institution. It has arrogated to itself the power to determine the constitutionality of various very important government policies, including with regard to questions of national security, despite the fact that Israel has no constitution. That Barak, a leading advocate of this constitutional coup, is so widely admired by American liberal constitutionalists likely says something significant, and to me not very positive, about their view of the proper role of the judiciary.)

Regardless, there is very good reason that Justice Ginsburg shouldn't be affected by Justice Barak's opinion, as described by Ginsburg, and that's its reliance on moral judgment rather than law. It's not Justice Ginsburg's job to decide whether allowing the use of torture is a lesser evil, or whether it should be banned because it means "we come to look like that enemy in our disregard for human dignity." Such determinations are for the elected branches to make in establishing the law, and Justice Ginsburg's job is to apply the law they have made, not to make up rules that comport with the values she has adopted after thinking very hard about the learned decisions of judges in other countries. Justice Ginsburg is free to be personally persuaded on the moral issue by Justice Barak, but this should have no effect on her vote on any case involving the legality of torture.

Update:  DrewM at AOS has more.

Let me just say why I think this is a bad and more importantly, a dangerous idea. What it really amounts to is a judge looking for a way to pretty up his or her personal opinion. Since they can't find any precedent or support in America's legal traditions they have to go in search of one.

It would be far more honest for Ginsburg, Breyer or Kennedy just to say, "this is what I think and I'm on the Court so you can't stop me from making it the law". Alas, that would never do. Instead they drape their policy preferences in the warm blanket of 'learned colleagues' who represent sophisticated places like Europe. It's not a naked power grab, they will say. It's simply bringing the US into the family of right thinking nations.

Isn't it funny how they always find just the opinion they are looking for? Well it's pretty easy when the world is your market place. Interestingly though, they tend to be rather selective about the courts they cite. On abortion or the death penalty (and a late addition...matters involving gay rights) it's always European courts. Why not South America, Asia or even Islamic courts? Oh because then if you are an activist, liberal justice you don't get the results you like*. I'm sure it's just a coincidence that the most persuasive foreign opinions just happen to match their own preferences. How fortunate for them.

Ten Questions for Harold Koh

Harold Koh's nomination as Legal Advisor to the State Department has sparked a heated debate between those with a more internationalist or transnationalist legal perspective and those with, what I will call, an American exceptionalist perspective. (You can find a more detailed discussion of Koh's views and possible ramifications here.) Julian Ku at Opinio Juris tries to tone down the rhetoric and spark a substantive debate by offering 10 questions that should be asked of Koh at his confirmation hearing.

1)  The Senate may consider three important treaties in the near future:  The UN Convention on the Law of the Sea, the Convention for the Elimination of Discrimination Against Women, and the Convention on the Rights of the Child.  Do you believe that it is legal and appropriate for the U.S. government to attach statements of “non-self-execution” to these treaties such as those that were attached to the International Convention on Civil and Political Rights? Would you be willing to defend the domestic legality of such provisions in U.S. litigation? 

 

2)  You have argued in your writings that transnational legal processes can and should be used to develop and eventually “bring international law home” to have binding force within the U.S. legal system.  Do you think it is appropriate as Legal Advisor to support such efforts to use litigation to incorporate international legal norms within U.S. law? 

 

3)  The U.S. government has filed statements of interest on behalf of foreign governments, such as Indonesia and South Africa, objecting to the lawsuits brought against them or against multinational corporations who allegedly were complicit in their human rights abuses.  Do you approve of the use of such statements, such as the ones that were filed by the Legal Advisor on behalf of South Africa?  What binding force do you think they should have on the courts? What standards will you use to choose whether or not to recommend filing such a statement?

 

4)  You have written vigorously in defense of the view that customary international law has the status of federal common law within the U.S. legal system.  Do you therefore also believe that the President has the power to invoke CIL to preempt state law, as some scholars have suggested?

 

5)  You have argued for a “Constitutional Charming Betsy Canon” that would guide courts in the interpretation of the U.S. Constitution.  Does this mean that you believe courts should, whenever possible, interpret the Constitution to conform with international law and foreign law?   

 

6) One your predecessors, William Taft, argued that the 2003 invasion of Iraq was legal under international law and offered a number of legal opinions to that effect during his tenure.  Do you agree with his interpretation of international law governing the use of force in Iraq? 

 

7) According to newspaper reports, the U.S. government has been engaged in the use of covert military attacks in at least seven different countries, as part of the “global war on terrorism.”  These attacks have included missile attacks in Yemen, Syria, and Pakistan.  Such attacks, by U.S. Special Forces, were authorized by President Bush.  Do you believe these attacks are lawful, under U.S. and international law?

 

8 ) Do you believe the United States acted lawfully when it attacked Serbia during the 1999 Kosovo conflict despite the lack of any congressional authorization or authorization from the United Nations? 

 

9) To the extent that U.S. forces detain individuals associated or part of Al Qaeda, in Guantanamo or Afghanistan, do you believe that such individuals are entitled to the protection of international human rights law as well as, or instead of, the laws of war? 

 

10)   Recently, universal jurisdiction has been invoked in Spain to potentially prosecute six officials from the Bush administration for giving legal advice that allegedly sanctioned torture.  Universal jurisdiction has also been the basis for or potential prosecutions of Israeli officials involved in military operations in the Gaza Strip. Given your past advocacy of transnational legal processes and the invocation of universal jurisdiction  in the United States under the Alien Tort Statute, do you believe it is appropriate for Spain to open that investigation into U.S. officials?  At what point would it be appropriate for the United States to protest such an investigation?