Newly Expanded 'Hate Crimes' Legislation Presupposes Thought and is a Federal Power Grab

Not only does the current expansion of Hate Crimes legislation signed into law by President Obama on Wednesday, October 28th, allow for the prosecution of individuals based upon a presumption of their thoughts at the time of a crime, it also expands the powers of the Federal government. In signing the bill, Obama vowed to “help protect our citizens from violence based on what they look like, who they love, how they pray or who they are.”

But in so doing, Obama has acted to broaden the powers of the federal government into an area of enforcement that already exists under state civil and criminal laws thereby contributing to the erosion of state and local roles in governance, and ultimately removing power from the individual (see here for more on Constitutional powers and the federal vs. state governments).

Brookings' New Study on Judicial Nominations

Last Friday Brookings Institute published a study entitled Judicial Nominations in the Bush and Obama Administrations' First Nine Months by Russel Wheeler. In this article Mr. Wheeler focuses on four areas where you can compare Bush and Obama: Nominations, Hearings, Confirmations and Characteristics. He goes point by point comparing Bush to Obama and, in the end, there are two things that he decides are significant. The first is the lack of Obama nominees. Compared to President Bush, Obama is taking a very long time to nominate judges. The second is that, while the Senate Judiciary Committee may be quick to vote on nominees, the full Senate is taking its time in scheduling conformation votes.

Holder at it Again

Via the Weekly Standard.

President Obama isn't taking kindly to a television ad that criticizes his opposition to a popular scholarship program for poor children, and his administration wants the ad pulled.

Former D.C. Councilmember Kevin Chavous of D.C. Children First said October 16 that U.S. Attorney General Eric Holder had recently approached him and told him to kill the ad. ...

"I saw [Holder] at an event," said Chavous. "He did ask me in front of others to pull the ad. My response was, 'No, and I tell you what, if the president does the right thing, not only will we pull it but we will celebrate him.' " (emphasis added)

I am beginning to see a pattern with this administration...

Another Example that Obama DOJ is not Above Playing Politics

This reminder comes courtesy of Bench Memos. Whelan takes issue with Holder's explanation for the delay in appointing U.S. Attorneys. Holder contends that, unlike the Bush Administration, they are looking for the “best people”—“people who are highly qualified, who understand what immense power they will be given as United States attorneys, who understand that they are to enforce the law in an impartial, nonpolitical way.” But what about the facts?

That explanation seems difficult to reconcile with—to cite one example that a reader has brought to my attention—President Obama’s nomination of Nicholas Klinefeldt to be U.S. Attorney for the Southern District of Iowa.

Klinefeldt’s professional qualifications hardly render him “highly qualified”: He’s an associate at a Des Moines law firm and all of 35 years old. He’s tried one federal criminal case and three to five small-claims matters.

What is most clearly “highly qualified” about Klinefeldt are his political connections: counsel for the Iowa Democratic Party from fall 2006 to March 2009 (the latter date presumably being the time he applied to become U.S. Attorney); state counsel to the 2008 Obama presidential campaign; and formerly a staff assistant to Senator Tom Harkin and field organizer for one of Harkin’s re-election campaigns. (I’ve drawn this information from this MainJustice.com page (registration required).)

As Whelan notes, some of this is perfectly legitimate and to be expected, but Obama has repeatedly claimed he is going to change the way Washington works, which has been true so far as he meant to make it more politicized.

Liberals See Themselves as only Defenders of Civil Rights and Justice; Still Don't Understand Legal Philosophy of the Right

Once again we have the left wing media not understanding the right, whether conservative or libertarian. The Wall Street Journal's law blog recently discussed Paul Clements supposed flirtation with liberalism. What is so flirtatious about Clement's conduct?

So, how’s he faring in private practice? The NLJ reports that Clement landed two Supreme Court arguments this term ─ not too shabby ─ and one hug from a client. His secret, so far, has been to embrace left-leaning causes, of all things.

In the first case, argued Oct. 14, he represented a Children’s Rights group that is pushing for enhanced legal fees following a victory in a 2005 civil rights case. (Here’s an LB post on the case.)

In a case to be argued Nov. 4 he will represent men wrongly convicted in the murder of a retired Iowa police officer. In June, NLJ reports, Clement traveled to Omaha, Nebraska to pitch his services pro bono to Curtis McGhee Jr. and Terry Harrington, who were found guilty of murder in 1977 but are now suing their Iowa prosecutors for falsifying evidence. The men were so impressed by his pitch that they ended the meeting with a hug, which Clement calls a “definite first.”

Ilya Shapiro at Cato takes down this supposed transformation of Clement. In a post titled "Defending Civil Rights and Suing Rogue Prosecutors Is Left-Wing Lawyering?" Shapiro writes:

Is this another case of a conservative lawyer “growing” in office or “drifting” to the left, seduced by the cocktail parties and press attention of the Washington elite?

Hardly. The two cases that prompted this gnashing of teeth (or cautious optimism, depending on where the commentator resides on the political spectrum) are Perdue v. Kenny A. and Pottowattamie County v. McGhee. In Kenny A., Clement represented a group of public interest attorneys who won a big case on behalf of mistreated foster children and argued that they should be entitled to the enhanced fees the trial court awarded them for exceptional performance. In McGhee, Clement’s clients are two men who were framed by overzealous prosecutors and served 25 years in prison for crimes they didn’t commit — the convictions for which were based on the prosecutors’ fabricated evidence.

To say that these are left-wing positions is to consider the Left to be the only possible champion of justice and constitutional rights, and to paint the non-Left as standing for limitless, unaccountable governmental power. Neither of these positions is accurate, to say the least.

I commented on a similar phenomenon during the Sotomayor hearings.

What is interesting is how little liberals actually know about conservative judicial philosophy and how they come off as a result. This is embodied by Sen. Shumer's opening remarks.

In his introductory comments at Monday's hearing on prospective Supreme Court justice Sonia Sotamayor, Sen. Chuck Schumer (D-NY) boasted that over the course of her career, the nominee "ruled for the government in 83% of immigration cases, in 92% of criminal cases." This apparently is a plus. ...

Mother Jones correspondent Stephanie Mencimer's summary of the hearings thus far is a bit over the top, but not by much:

Republicans would accuse Sotomayor of being a soft-hearted minority, and she would parry with examples from her 17-year judicial career where she'd been as mean or meaner than any white guy on the bench.

This shows that all Schumer and the Democrats know is a results oriented judicial philosophy. There is no thought to principles of interpretation or a limited role for the judiciary, just results.

And all good results just happen to be liberal results, natch.

Clarence Thomas to Other Supreme Court Justices: Hush!

Via Reason.

Thomas - who hasn't asked a lawyer a question during arguments in nearly four years - said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments. ...

Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court.

"All nine of us are in the same building," he said. "If we want to sway each other we know where we are. We don't need oral arguments to do that. It doesn't make any sense to me."

Steny Hoyer Apparently Unaware of 16th Amendment

In discussing whether Congress has the power to mandate health insurance Hoyer had an odd response:

Hoyer, speaking to reporters at his weekly press briefing on Tuesday, was asked by CNSNews.com where in the Constitution was Congress granted the power to mandate that a person must by a health insurance policy. Hoyer said that, in providing for the general welfare, Congress had “broad authority.”

“Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end,” Hoyer said. “The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.”

Hoyer compared a health insurance mandate to the government’s power to levy taxes, saying “we mandate other things as well, like paying taxes.”

Perhaps Hoyer is unaware of a little thing called the 16th Amendment which reads:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

I guess this means Hoyer thinks Congress must pass an amendment to mandate insurance?

Department of Getting Democrats Elected

Good thing President Bush is gone so that we no longer have the politicization of the Department of Justice. Oh, wait...

"Voters in this small city decided overwhelmingly last year to do away with the party affiliation of candidates in local elections, but the Obama administration recently overruled the electorate and decided that equal rights for black voters cannot be achieved without the Democratic Party.

The Justice Department's ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their "candidates of choice" - identified by the department as those who are Democrats and almost exclusively black.

The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters' right to elect the candidates they want."

UPDATE: More on the subject from Hans A. von Spakovsky back in September.

"The attorneys in the Voting Section also increasingly use the Voting Rights Act as primarily a political bludgeon to protect and enhance the electoral successes of the Democratic party. Thus, in the Kinston objection letter, the Department stated that “it is the partisan makeup of the general electorate” that allows the winner of the Democratic primary to win in the general election. But of course, the VRA is supposed to protect voters, not majority parties. The fact that blacks are a controlling majority in the city is essentially deemed irrelevant.

Disturbingly, the Civil Rights Division attorneys’ action rests on the presumption that blacks simply cannot be trusted to make their own decisions as to which individual candidates to support, and will be presumed to vote against their own self-interest unless candidates on the ballot have the “right” party label. This approach to enforcement stands the Voting Rights Act on its head and is anathema to all of our constitutional requirements for fair elections."

Obama Should Oppose Court Packing Scheme

Before turning to the 2009 Federal Judgeship Act, we note a rare instance of agreement between the Committee for Justice’s Curt Levey and Nan Aron of the Alliance for Justice. Saturday’s National Journal Magazine reported that

“Regardless of whose seat is being filled, advocates on both ends of the ideological spectrum predict a bruising fight if a [Supreme Court] vacancy occurs next year. ‘It will be a big battle for a number of reasons,’ said Curt Levey … ‘One is just the very fact that it is an election year. Two is that when the president was at the height of his popularity, Republicans were only willing to fight so hard on Sotomayor.’ … Nan Aron, president of the liberal Alliance for Justice, contends that ‘Judging from the way in which Republicans are treating the president's nominees so far, they will mount an all-out battle to defeat whomever is sent to the Senate by the president.’”

Now on to the Judgeship Act (S.1653 & H.R.3662), which is being pushed by Sen. Patrick Leahy and was the subject of recent hearings in his Judiciary Committee. The bill would create more than sixty new federal judgeships, a dozen of them on the U.S. Courts of Appeal, which serve as the final word on most legal issues. Each new judgeship would costs the nation about a million dollars a year in salary, rent, security, clerks, and the like.

In an editorial on Monday, the Wall Street Journal noted the crass partisanship and hypocrisy behind the bill. An earlier version of the bill in the last Congress had bipartisan support because the new judgeships were explicitly delayed until after an intervening presidential election and inauguration, thus favoring neither party. In contrast, the 60-plus new vacancies created by Leahy’s bill and its House equivalent could all be filled immediately by President Obama. The large Democratic majority in the Senate would then rubber stamp virtually all of Obama’s 60-plus picks.

Lest anyone imagine that Sen. Leahy and the Democrats are motivated by a real judge shortage requiring immediate action – rather than by a desire to pack the courts – the Journal points out that President Obama has named only 16 nominees to fill the 94 current vacancies on the federal bench. And even if 94 vacancies were deemed to be a problem, how would creating more vacancies address the problem? Finally, many of the 94 vacancies exist only because Sen. Leahy denied hearings and votes to so many of President Bush’s judicial nominees in the last Congress.

The only fair thing to do is to amend the proposed Judgeship Act to delay the creation of new judgeships until after the next presidential election / inauguration, as in the previous version of the bill. That would not only make the bill’s effects non-partisan, but would also depoliticize the determination of how many new judgeships are needed and where they’re needed. Unfortunately, Chairman Leahy has already announced that he is “unmoved” by requests that the bill be made less partisan and political. Absent a change in Leahy’s position – unlikely given his long history of hyper-partisanship – we agree with the Wall Street Journal that “Republicans should do everything in their power to stop” the bill. On the judges front, there is no more important priority for Senate and House Republicans.

However, we note that the ultimate responsibility for saying no to this partisan bill lies with President Obama, who was elected on a promise to transcend partisanship. The President claims to have tried to keep that promise on a variety of issues, but no such claim regarding the judiciary will be plausible if Obama supports a judgeship bill that allows him to fill every one of the 60-plus new seats on the bench. That’s about as self-serving as Congress voting itself an immediate pay raise, which is forbidden by the 27th Amendment. The President can ensure that he is never asked to sign such a court-packing scheme by signaling immediately to Leahy and House Democrats that he wants a bipartisan judgeship bill.

The last time a president and Congress of the same party got together to create a partisan windfall of new judgeships, Jimmy Carter was President. The result included ten new seats on the Court of Appeals for the Ninth Circuit. With a Democrat-controlled Senate willing to rubber stamp Carter’s judicial picks, the Ninth Circuit took a turn to the far left. It remains there to this day, illustrating a potential for abuse that is sure to be exploited if Leahy’s partisan bill becomes law.

If President Obama is genuinely worried about there being too few judges on the federal bench, he has the opportunity to fill some vacancies in a hurry by nominating attorneys who have already been vetted both privately and publicly and who are guaranteed to get broad bipartisan support and quick confirmation. In the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. There’s no reason why Obama shouldn’t seize the opportunity for quick confirmations by duplicating President Bush’s gesture and renominating some of the unconfirmed Bush nominees stonewalled by Sen. Leahy.

The 2nd Amendment, Incorporation, and the Return of Economic Liberty

The McDonald case, which has received much attention on this blog, offers the Court the opportunity to revive the Privileges and Immunities clause of the Fourteenth Amendment. This clause has largely been read out of the Constitution, forcing the Due Process and Equal Protection clauses to fill the void. Reviving the clause could spur the return of economic liberty.

"[T]he Court's reasoning in applying the Second Amendment to the states could have implications far beyond the right to arms. If it cites the Privileges or Immunities Clause instead of (or in addition to) the usual rationale for incorporation, the 14th Amendment's Due Process Clause, it can prepare the ground for a renaissance of economic liberty. ...

The right to weapons was one of the liberties frequently cited by the 14th Amendment's backers, since disarmed blacks were defenseless against attacks by Klansmen and local officials. As reflected in post-Civil War legislation that the amendment was intended to reinforce, its supporters also were concerned about economic liberty: the right to own and exchange property, make and enforce contracts, and work in the occupation of one's choice -- all freedoms the Southern states tried to deny former slaves.

Despite this context, in 1872 the Supreme Court declared that the "privileges or immunities of citizens" included only those rights that were created by the Constitution (such as the right to petition the federal government), not the pre-existing rights the Constitution was designed to protect. The Court therefore upheld a slaughterhouse monopoly created by the state of Louisiana, an infringement of economic liberty that the three dissenting justices saw as a violation of the Privileges or Immunities Clause.

Those privileges or immunities, the dissenters said, include "the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons." That view reflects the original understanding of the 14th Amendment, which holds great promise as a bulwark against arbitrary interference with economic freedom. The Supreme Court should seize this opportunity to revive it."

Update: For those interested in this subject, the Georgetown Law Federalist Society is hosting an event on October 22 to discuss this very topic. Lunch is usually provided.

Date: Thursday, October 22nd
Time & Place: Noon in McDonough 156
Speaker: Clark Neily, Senior Counsel at the Institute for Justice
Topic: Economic Liberties and the 2nd Amendment

McDonald and Incorporation

Here is a podcast from David Kopel, Research Director of the Independence Institute, on McDonald and the doctrine of incorporation.

Why Skydivers Would Be Better Off Without Parachutes

On the heels of the Supreme Court's decision to grant cert in McDonald v. Chicage comes a study from the University of Pennsylvania that finds "possessing a gun is strongly associated with getting shot." Jacob Sollum, of Reason Magazine, does a good job taking apart this sudy with the help of a similarly idotic analogy.

"Since "guns did not protect those who possessed them," they conclude, "people should rethink their possession of guns." This is like noting that possessing a parachute is strongly associated with being injured while jumping from a plane, then concluding that skydivers would be better off unemcumbered by safety equipment designed to slow their descent. ...

The one explanation the researchers don't mention is the one that will occur first to defenders of the right to armed self-defense: Maybe people who anticipate violent confrontations—such as drug dealers, frequently robbed bodega owners, and women with angry ex-boyfriends—are especially likely to possess guns, just as people who jump out of airplanes are especially likely to possess parachutes."

As the issue enters the domain of the courts, expect increasing emphasis to be placed on studies trying to undermine the individual right to bear arms.

For a more detailed analysis of the study see Eugene Volokh's post here.

For Supreme Court, Guns are the New Abortion

Today, the Supreme Court began what will likely be its last term with the current lineup of Justices. Eighty nine year old Justice Stevens recently telegraphed his intentions when he hired only one clerk – the number allotted to a retired Justice – for the 2010-11 term. And Justice Ginsburg is battling the deadliest of all cancers, pancreatic cancer.

It’s no secret that the Committee for Justice would be more comfortable if a president other than Barack Obama were to replace Justices Stevens and Ginsburg, but it appears very unlikely that either Justice will be on the Court when the next presidential election is held. The real question is whether there will be one or two Supreme Court vacancies in the months before the 2010 midterm elections.

With the impending vacancies in mind, CFJ Executive Director Curt Levey has penned a piece exploring why “guns are the new abortion” in the politics of Supreme Court appointments. The piece, which appears at FOXNews.com today, explains that in the wake of the Sotomayor confirmation battle

“The political dynamics of nominating and confirming judges has been forever altered. Abortion rears its head in virtually every Supreme Court or hotly contested lower court confirmation contest. Gun rights will now do the same, especially as the explosion of Second Amendment litigation guarantees that more and more judicial nominees will have relevant rulings, briefs, articles, and speeches to scrutinize and debate.

“Abortion opponents have been the most influential part of the coalition opposing liberal judges and judicial activism. But the new, gun-owning gorilla in the room matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators. And there’s no comparable countervailing force on the other side. ...

“In the end, the payoff for gun rights advocates may be found as much in the selection of judges as in the confirmation process. . . . Expect Obama and his Democratic successors to borrow a page from Republican presidents, who have shied away from nominating outspoken opponents of abortion for the past two decades.”