March 30, 2009

Reid’s Nuclear Option Hypocrisy

The headline from Majority Leader Reid’s breakfast with reporters Friday morning was Reid’s charge that Chief Justice “John Roberts misled the Senate during his confirmation hearings by pretending to be a moderate” (Politico paraphrase). But what struck us most about the breakfast was Mr. Reid’s amazing lack of self-awareness when he railed against the proposed use of the “nuclear option” in 2005 to prevent the filibuster of President Bush’s judicial nominees, while at the same time threatening to use a similar nuclear option to pass President Obama's health-care initiative. At the breakfast,
“Mr. Reid was coy when asked whether he would try to push for major health care changes under the budget reconciliation process, which would mean it could move to a vote without having to face a Republican filibuster in the Senate. ‘That remains to be seen,’ he said.” (Washington Times)
Yet at the same breakfast, Reid described the GOP’s proposed process for ending the Democratic filibuster of judges as an attempt “to ruin our country,” adding
“the nuclear option was the most important issue I’ve ever worked on in my entire career, because if that had gone forward it would have destroyed the Senate as we know it.”
At the breakfast, Mr. Reid did promise not to use the nuclear option to prevent Republicans from filibustering judicial nominees. But that’s an easy promise to make given that the GOP has never filibustered a judicial nominee.

Returning to Sen. Reid’s claim that Chief Justice Roberts misled the Senate by pretending to be a moderate, it’s important to clarify that what Roberts actually said at his September 2005 hearing was “Judges are like umpires. Umpires don't make the rules; they apply them.” Roberts’s point was that judges shouldn’t use their power to advance a particular political agenda, be it moderate, liberal, or conservative. This stands in sharp contrast to President Obama’s promise to appoint judges with “the empathy, to recognize what it's like to be a young teenage mom [or] poor, or African-American, or gay, or disabled, or old.” Given this activist judicial philosophy, which is common among Democrats, it’s no wonder that Reid and Obama view Roberts as a dangerous reactionary.

We note that Sen. Reid voted against the confirmation of John Roberts, so Reid must be talking about his less perceptive colleagues when he says that Roberts misled the Senate. Reid added Friday that “we’re stuck with [Roberts and Alito], and we’ll try to change by having some moderates in the federal courts system.” Unfortunately, Reid forgot to tell reporters why he thinks that President Obama’s activist judicial philosophy augurs the appointment of moderate judges.

This is not the first time that Sen. Reid has been confused about what a “moderate” is. Last year, he said that “out of 49 Republicans [in the Senate], we have no moderates,” except maybe for Olympia Snowe. Perhaps Reid believes that GOP senators such as Susan Collins, Arlen Specter, John McCain, Chuck Hagel, John Warner, Gordon Smith, and Richard Lugar misled the Senate by pretending to be moderate.

March 29, 2009

Homophobia-phobia at the L.A. Times

I didn't post anything in regards to Barney Frank calling Justice Scalia a "homophobe" because it was typical liberal vitriol that I didn't think deserved a response.  Liberals have a habit of accusing conservatives of being homophobic or racist, and voila, they don't have to address conservative arguments on the merits.  But now the L.A. Times has taken the baton from Frank and tried to put a politically correct gloss on his argument.  In the first paragraph they show that they agree with Frank even if they don't condone his actions.
Rep. Barney Frank (D-Mass.) has been widely criticized for referring in a recent interview to "that homophobe Antonin Scalia," an injudicious exercise in name-calling that obscures Frank's larger and more valid point: that the opinions of the tart-tongued Supreme Court justice leave little doubt of his utter lack of sympathy for gays and lesbians. 
As we have pointed out in regards to Obama's ideal judge: it is not the role of the judiciary to have sympathy to anyone in front of the court.  Their job is to interpret the law as it is written regardless of the party involved.  This is the reason lady justice is pictured with a blindfold over her eyes.  Justice is blind, not sympathetic.  The Times clearly doesn't agree with this view of justice as they dismiss Scalia's view, the correct view, of the gay rights agenda.
Scalia's defenders argue that he has never actually denounced homosexuality or expressed such hostility. In fact, in his dissent in a 1996 decision striking down an anti-gay referendum in Colorado, Scalia wrote: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." Scalia says he objects to pro-gay-rights decisions for the reasons he rejects Roe vs. Wade: His colleagues are legislating from the bench. (emphasis added)
Failing to address the merits of this view, the Times expresses its displeasure that "Scalia has little enthusiasm for expanding gay rights."  This is the Times PC way of calling him a homophobe.  The Times editorial board goes on to cement the idea that they think judges should interpret the law based on feeling and empathy rather than textual interpretation in their closing paragraph.
How Scalia feels about gays and lesbians is not just an academic question. The courts are increasingly emerging as the arbiters of the gay-marriage dispute, and we suspect it won't be too long before the issue reaches the high court. With passages like these in the law books, Frank has reason to be concerned, and he didn't need to call Scalia a homophobe to make his point.
What the Times fails to point out is that it doesn't matter what any judge thinks about homosexuals.  The only thing that matters is the law that is being interpreted.  The Times has no time for such textual roadblocks, which they show by leaving their readers in the dark on some important constitutional information that Ed Morrissey points out in the original link.
The Supreme Court has no basis for intervening in what is a policy dispute.  The Constitution does not have any language that requires the federal government to recognize gay marriage, or to force states to do the same.   Regardless of Scalia’s personal biases or lack thereof, the matter belongs to the states and to the legislative branch.

The Bank Bailout is Unconstitutional

That is the opinion of George Will expressed in an Op-Ed published in today's Washington Post.  This argument isn't new, but Will points to the "non-delegation doctrine" whereas others have focused on the Commerce Clause, Equal Protection Clause, or Due Process Clause.  Will's claim is that Congress delegated their legislative authority to the Executive unconstitutionally. 

FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates "the nondelegation doctrine." Although the text does not spell it out, the Constitution's logic and structure -- particularly the separation of powers -- imply limits on the size and kind of discretion that Congress may confer on the executive branch.

The Vesting Clause of Article I says, "All legislative powers herein granted shall be vested in" Congress. All. Therefore, none shall be vested elsewhere.

Will proposes a hypothetical to make his point.

Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says that the president shall define the statute's meaning with regulations that define and promote goodness and niceness and specify penalties for violations.

Surely this would be incompatible with the Vesting Clause. Where would the Goodness and Niceness Act really be written? In Congress? No, in the executive branch. Lawson says that nothing in the Constitution's enumeration of powers authorizes Congress to enact such a statute. The only power conferred on Congress by the commerce clause is to regulate. The Goodness and Niceness Act does not itself regulate, it just identifies a regulator.

The Constitution empowers Congress to make laws "necessary and proper" for carrying into execution federal purposes. But if gargantuan grants of discretion are necessary, are the purposes proper? Indeed, such designs should be considered presumptively improper. What, then, about the Goodness and Niceness Act, which, as Lawson says, delegates all practical decision-making power to the president? What about EESA?

These articles are interesting, and as one opposed to the bailouts, they add to my arguments against them.  But I don't see the issue ever coming before a court.  I am not sure who would have standing to challenge such a law, and the articles don't purport to provide an answer to that question.  My main hope is that once TARP II inevitably comes around, these constitutional arguments can give legal teeth to public bailout fatigue adding another hurdle to he administration's attempt to pass legislation.

March 27, 2009

Obama Administration Thinks it’s Acceptable to Ban Books about Politicians – Depending on Who Pays for Them

When Hillary Clinton was still a presidential candidate claiming she dodged sniper fire in Bosnia, a conservative nonprofit group called Citizens United put together a little film called “Hillary: The Movie.” The FEC felt that this film, especially since it was being advertised and distributed during the presidential campaign, was in violation of the so-called Bipartisan Campaign Finance Act, or, as it is more popularly known, McCain-Feingold. Citizens United understandably felt that the FEC and McCain-Feingold itself was in violation of something called the First Amendment. Unfortunately, a federal district court upheld the FEC’s ruling, but now the Supreme Court has a chance to correct the error.

During oral arguments before the Supreme Court Deputy Solicitor General Malcolm Stewart argued that not only films and television ads could be banned by the law, but also books and websites as well. Upon hearing this Justice Alito seemed a bit stunned. From the Wall Street Journal:

"That's pretty incredible," said Justice Samuel Alito. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" Yes, Mr. Stewart said, if a corporation or union were paying for it. It would be possible to "prohibit the publication of the book using the corporate treasury funds."

As the piece points out:

“…McCain-Feingold is a blunt instrument that gives federal bureaucrats the power to decide what kind of campaign advertising is allowed during an election. If "Hillary: the Movie" isn't allowed, then Michael Moore's documentaries should be banned, and newspaper endorsements would also be suspect despite a specific carve-out in the law. If newspapers didn't have that carve-out, then maybe so many editors wouldn't cheerlead for this kind of law.”

Hopefully, the Supreme Court will take this opportunity to simply declare McCain-Feingold unconstitutional.

March 23, 2009

Andrew Cohen's Anti-Scalia Farce

Andrew Cohen of CBS News' Court Watch has a blistering response to Justice Scalia's interview that I highlighted here.  In the forty some odd minutes of the interview, Scalia discusses religion once.  It was in response to a direct question in which he said, “As far as I know, there is only one element of my faith that has anything to do with my being a judge…. ‘Thou shalt not lie.’"  Somehow this one line leads Cohen to the belief that he "never understood until now just how deeply Justice Scalia’s legal philosophies and tactics are dictated by his religious fervor."  That might be the most ever gleaned from 'thou shalt not lie.'  Framing Scalia in this light allows Cohen to dismiss him as a "deeply devout idealogue."  There are plenty of things to take umbrage with in this article, but I want to focus on one line in particular.

In describing originalist legal theory Cohen writes,
"This is the jurisprudence of the self-righteous; where faith in the omniscience of the Constitution’s founders dwarfs all of the evidence we now have that the rich, white, often-slave-owning men who negotiated the terms of the document (and the Bill of Rights) were just as prone to vice, self-interest, and poor judgment as their political successors."
First, describing a champion of judicial restraint as self-righteous seems to be a bit of an oxymoron.  This is especially true because Cohen notes above that,
"This is, indeed, the lament of Originaliasts; too many appointed judges, and not enough elected legislators, get (or usurp) the final call on contentious issues. It’s a philosophy that exalts politicians at the expense of judges; a theory that, even Scalia concedes, presumes that democracy works far better than it actually does."
So let me get this straight.  The "jurisprudence of the self-righteous" thinks that contentious issues should be decided by the will of the people and not a majority of the bench.  Oh the self-righteousness!  It would seem that Cohen's view is far more self-righteous, for he wants judges -- excuse me "change agents" -- to be the final arbiter of contentious issues even where they overturn the will of the people.  All because they presumably have some moral superiority to the citizenry. 

Second, Originalists don't believe the omniscience of the founders trumps "evidence we now have that the rich, white, often-slave-owning men who negotiated the terms of the document (and the Bill of Rights) were just as prone to vice, self-interest, and poor judgment as their political successors."  What Cohen seems to miss or likely to ignore is that there is a process to correct all the boogeyman situations that he mentions including the missteps of the founders: the amendment process.  This process allows for these "contentious issues" to be hotly debated in public and compromise reached instead of decided on the whim of the "change agents."

Cohen's article just comes off as petty and clearly shows that he has an axe to grind.  He forces the interview into his pre-conceived notion despite the interview's unwillingness to fit.  His repeated use of boogeymen such as Jim Crow and Brown v. Board of Education remind me of the time Whoopi Goldberg asked John McCain if she had to worry about becoming a slave again.  It is just a cheap scare tactic. 

Watch the entire five-part interview and compare Scalia's words to the article.  It will seem like Cohen watched a completely different interview.

Peter Robinson, who conducted the interview, responds here.

Re: Is The AIG "Super Tax" Unconstitutional?

President Obama has his doubts.  
"As a general proposition, you don't want to be passing laws that are just targeting a handful of individuals. You want to pass laws that have some broad applicability," [Obama] said in an interview broadcast Sunday. "And as a general proposition, I think you certainly don't want to use the tax punish people."
I have my doubts that Obama would veto any "super tax" legislation that comes to his desk.  He has shown a propensity thus far to defer to the Democratic Congress without question.  But above all, Obama seems to be mostly concerned with being popular.  With the populist outrage at the AIG bonuses and Obama's slipping poll numbers, it is hard to imagine he would veto the bill because he believes it is unconstitutional and risk a further hit in the polls.  

More coverage of the constitutionality of the AIG "super tax" here.

March 21, 2009

Say What?

As a second year law student, I may be relatively new to this game, but this line from Jeff Amestoy's Washington Post Op-Ed really sent me for a loop.
Yet, as difficult as the likely outcome of the case will be for those of us who support gay marriage, the court's rationale will almost certainly strengthen a fundamental tenet of the progressive movement: the right of ordinary citizens to maintain authority over their state constitutions.
Someone alert the Federalist Society that they are a "progressive" organization now.  Amestoy continues his analysis in a way that seems particularly anti-progressive.

When Theodore Roosevelt, the Progressive candidate for president in 1912, proposed the recall of state court decisions to enable "the people themselves" to decide constitutional issues, he was responding to our democracy's inherent tension between judicial authority and democratic legitimacy. And when Larry Kramer, the preeminent progressive scholar of "popular constitutionalism," criticized William Rehnquist's Supreme Court, he noted, "The Supreme Court is not the highest authority in the land on constitutional law. We are."(emphasis added)

Unfortunately for supporters of gay marriage, the most pronounced demonstration of popular constitutionalism in recent years has been the adverse response of voters to judicial decisions advancing the constitutional claims of same-sex couples. The idea that judicial authority is not ultimate constitutional authority can be particularly unsettling when citizens choose to amend their state constitutions to limit rather than expand rights.

In fact, the current status of the same-sex marriage issue in our society is largely the product of a critical distinction between state constitutional law and federal constitutional law. Simply put, state constitutional interpretation is not reserved exclusively for judges.

 My first response: huh?  This is the exact argument that has been propagated by conservatives throughout the same-sex marriage battle as a response to activist judicial decisions such as the original California decision.  Let the people decide!

The delicious irony comes from a 1999 case presided over by then Vermont Supreme Court Chief Justice Jeff Amestoy called Baker v. Vermont.  Amestoy also wrote the majority opinion.  The unanimous decision found that  existing prohibitions on same sex marriages were a violation of the Vermont Constitution.  The decision forced the Vermont Legislature to either allow same-sex marriage or to come up with an equitable alternative.  So much for "the right of ordinary citizens to maintain authority over their state constitutions."

Since the Civil Rights movement, the courts have been the primary focus of "progressive" advocates.  One has to look no further than their crown jewel, 
Roe v. Wade, to see this.  

What this Op-Ed shows is that "progressives" want it all ways.  They want the Supreme Court to make up rights and advance their "progressive" agenda.  In lieu of that, they want the State courts to do the same.  As a last resort, they hope the people will buy into their "progressive" agenda to amend State Constitutions.  I guess this Op-Ed takes it even one step farther, in that absent any of the above, they will just claim victory for some sort of "progressive" ideal.  Hopefully I am not alone in wishing that, in the future, they are forced to merely claim victory more often than not.

Is The AIG "Super Tax" Unconstitutional?

The uproar over the $218 million in bonuses that AIG handed out to its executives has driven the House to push through a bill that would tax those bonuses at 90%.  But is this an unconstitutional bill of attainder?  Article 1, Section 9 of the U.S. Constitution states, 
No bill of attainder or ex post facto Law shall be passed.
What exactly constitutes a "bill of attainder" does not seem clear from the case law.  The basic question is whether the legislature has targeted an identifiable group of people for punishment, which usurps the judicial function.  An ex post facto law adds a punishment for past conduct after-the fact.

The L.A. Times's  David Savage has a lengthy write-up that suggests it will be difficult for AIG to win in potential litigation.  
"But [AIG] are not likely to win a court challenge if the legislation becomes law, because courts have given legislatures broad leeway to raise and lower taxes without running afoul of the Constitution, legal experts said Thursday.

"'The courts are very reluctant to strike down tax legislation,' said Edward McCaffery, a tax expert at the USC Gould School of Law. 'I think a tax this high and this targeted raises some difficult questions, but at the end of the day, I would bet a constitutional challenge would not work.'"

And as for the issue of the legislature not targeting an identifiable class,
"The tax legislation that the House passed Thursday did not name names. And it was broadened beyond AIG.

The 90% tax rate applies to people who will earn more than $250,000 in adjusted gross income in 2009 and who get bonuses from a company that received more than $5 billion in bailout money. Included are employees of Fannie Mae and Freddie Mac.

Since the tax-rate change would apply only to income in 2009, it cannot be attacked in court as a retroactive tax."
Harvard's Lawrence Tribe agrees with the TIme's conclusion.  He brings experience from arguing one of the most important bill of attainder cases in SBC Communications v. FCC.  Tribe points to legislative drafting being the key to working around the bill of attainder issue.
"It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge. 
Such a tax would presumably be leveled on the basis of some criterion sufficiently general to avoid classification as a measure targeting solely a closed class of identified and named individuals. The fact that the individuals subject to the tax in its retroactive application would in principle be readily identifiable would not suffice to doom the tax either from a bill of attainder perspective or from a due process perspective. Moreover, the fact that the aim of such a tax would be manifestly regulatory and fiscal rather than punitive and condemnatory, and that the tax would be part of a measure that would be prospective as well as retroactive in its operation, would serve to blunt the force of any bill of attainder challenge. Finally, such a tax would be devoid of the sting of political retribution and would not partake of the classic "trial by legislature" that the attainder ban was designed to avoid. 
All things considered, I believe it very likely that Congress could design a fully constitutional means of clawing back into the federal treasury all amounts paid (or to be paid in the future) in the form of retention bonuses from federal funds disbursed either by the Federal Reserve Board pursuant to legislative authorization tracing to the 1930s or by the Treasury pursuant to the most recently enacted federal bailout and stimulus measures."

Others disagree.  They focus on the legislative intent, which would seem to any reasonable observer targeted directly at AIG and these particular bonuses.  The Times quotes UNLV tax professor Steve Johnson, who believes that, "Courts sometimes look to the motivation of the legislature, and this looks like an intention to punish. It could also be viewed as government confiscation."  David Kravitz, a former O'Connor law clerk, picks up on this same theme over at Blue Mass Group.
"Someone challenging the super-tax shouldn't have any trouble finding evidence that the folks in Congress are interested in punishing AIG's bonus recipients, even setting aside Senator Grassley's call for them to commit suicide.  And though there are cases that declare taxes as non-punitive, a 100% (or close to it) tax might be a different thing -- especially with the current Supreme Court.  It's not a slam-dunk either way, but the argument that a 100% tax on pretty much anything is punitive seems pretty strong to me."

I think the legislative intent folks have a pretty good point.  The legislation seems particularly targeted at AIG and the recent bonuses.  This may present a new issue because most bill of attainder cases arise in the criminal context, and as discussed above, taxes are not generally thought of as punishment.

I also question whether any AIG employees would entertain brining a challenge.  They are already living in fear as the death threats pour in.  They may just want the issue to go away.

On a legislative note, Senate Republicans have blocked the bill in the Senate to let some of the outrage simmer down and to think through many of these Constitutional issues.

Update: Are we becoming a "banana republic?"

March 20, 2009

Scalia on Why Originalists Have Lost So Much Ground

This is one part of a five part interview conducted by Peter Robinson.  They are sort of long, but I encourage you to at least watch this one.

The other four parts can be found here.

March 19, 2009

Something Doesn't Add Up

David Hamilton was appointed by President Clinton despite a rating of "not qualified."  During his time on an Indiana District Court he was involved in numerous controversies including a particularly stunning rebuke from the Seventh Circuit Court that he would join.
"For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court inKarlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate."
But what of Hamilton's qualifications now?  Well on the same day that Obama restores the ABA to its pre-Bush role, the ABA issued its rating of Hamilton, and ... allakha-hopenchange he is now magically "well qualified."

Here are the ABA's standards.  Knock yourself out.

March 18, 2009

ABA Bias; WH Confirms Judicial Activism Pledge

“[A] soon-to-be-released study by political scientists concludes what conservative groups have long charged: The [ABA] ratings [of judicial nominees] are biased against potential conservative nominees.”
The study by political scientists at three Georgia universities, reported on in today’s National Law Journal, is based on examination of all federal appeals court nominees from 1985 to 2008. Specifically, the study found that
“Nominees appointed by Democratic presidents are more likely to receive higher ABA ratings than nominees appointed by Republican presidents. The more conservative the nominee, the less likely he or she will receive a high ABA rating.”
That’s embarrassing news for President Obama in light of yesterday’s announcement that he has given the ABA a key role in determining who he nominates to the federal courts, a practice discontinued by President George W. Bush. 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.

Apparently, the President feels no embarrassment about promoting judicial activism. During the presidential campaign, Obama raised eyebrows and controversy with his surprisingly candid remarks advocating an activist judicial philosophy in which “the critical ingredient is supplied by what is in the judge's heart,” and with his complementary pledge to appoint judges with “the empathy, to recognize what it's like to be a young teenage mom [or] poor, or African-American, or gay, or disabled, or old.” Yesterday, White House Press Secretary Robert Gibbs confirmed that “the president is standing by his controversial pledge,” in the words of the Legal Times.

While discussing yesterday’s nomination of Judge David Hamilton to the Seventh Circuit at his daily press briefing, Gibbs was asked whether Obama’s pledge “wouldn’t butt up against having to work within the rule of law.” Gibbs reiterated the President’s position that
“there are cases that judges … see that requires on [sic] — regardless of which [ideological] label you pick … that your own empathy and value system leads you to make a conclusion one way or the other.”
While Gibbs tries to paint Obama’s empathy-based judicial philosophy as something that cuts across political ideology, today’s Washington Post reminds us that liberals and conservatives are deeply split on the issue:
“Conservatives … ridiculed Obama's interest in the ‘empathy’ demonstrated by a prospective nominee, saying that it has nothing to do with a judge's work of interpreting statutes and the Constitution. ‘Who's to say who you are supposed to be empathetic toward?’ said Curt Levey, executive director of the Committee for Justice. … Liberal activists defended Obama's standard, calling it central to the role of courts in society. ‘What he is signaling, which is very important, is an acknowledgment of the importance of having judges who understand how the law affects everyday Americans,’ said Nan Aron, president of the Alliance for Justice.”
We remind Ms. Aron and the President that federal judges take an oath in which they swear to “administer justice without respect to persons, and do equal right to the poor and to the rich.” No American should have to walk into the courtroom and worry about whether the judge considers him an “everyday American” worthy of empathy.

We also note that Obama’s position is at odds with that of Attorney General Eric Holder who, in response to a written question from Sen. Arlen Specter, said that
“It is important for judges, as for all public servants, to bring to their jobs an ability to understand the life experiences of the people who appear before them, but judges should make their decisions based only on the facts presented and the applicable law.” (emphasis added)
Despite Obama’s desire to appoint activist judges, we held out some hope in our March 11 e-mail that the “pragmatic, bipartisan” side of Obama would win out when it came to selecting federal judges. Sadly, yesterday’s selection of Judge David Hamilton – Obama’s first judicial nominee – points in the opposite direction. An examination of Hamilton’s record as a U.S. District Court Judge – including rulings on religion, abortion, sex offenders and suppression of evidence – indicates that he has a penchant for judicial activism While not disqualifying, Hamilton’s leadership role in the Indiana branch of the ACLU – an organization known for its activist judicial philosophy – is also cause for concern.

Just the other day, Democratic legal superstar and former Solicitor General Walter Dellinger conceded that “the judicial philosophy issue breaks in favor of conservatives across the country.” Obama’s choice of Judge Hamilton as his first judicial nominee and “the White House tout[ing] him as the type of moderate who could cool the nation's long-simmering judicial battles” (Washington Post) indicate that, at best, the President is out of touch with the country’s negative view of judicial activism. At worst, the sales pitch for Hamilton is just another example of the White House’s proclivity for bipartisan but disingenuous rhetoric.

Obama Makes First Judicial Appointment

President Obama has announced the nomination of U.S. District Judge David Hamilton to the Seventh Circuit.  Hamilton was appointed by President Clinton in 1994 despite a "not qualified" rating by the ABA.  He was deemed "not qualified" apparently because his background was almost purely political where he spent time as vice president for litigation of the Indiana branch of the ACLU among other political positions.

In addition to his far-left political activism, Hamilton's tenure on the bench in Indiana was filled with controversy as the Washington Post points out.

"Hamilton has been involved in several controversial cases. In 2005, he ruled that the daily invocation of the Indiana House too often referred to Jesus Christ and a Christian god, in violation of the Constitution, which forbids the government to show preference for any religious denomination. The decision was overturned on appeal on technical grounds.

In 2003, Hamilton struck down part of an Indiana law requiring abortion clinics to give women information about alternatives to abortion in the presence of a physician or nurse. The information had to be given to women 18 hours before the procedure, requiring them to make two visits to the doctor's office to obtain the procedure. That decision was also overturned on appeal."

Despite these positions the New York Times seems intent to carry the Administration's water on this by running an article titled, "Moderate Is Said to Be Pick for Court."  If this is the type of judge that the Times views as a moderate, no wonder it sees our nation as one "saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims."

Ed Whelan is as confused as I as to what makes Hamilton a "moderate."

It’s far from clear what justifies the article’s characterization of Hamilton as a “moderate” (or, as the article oddly puts it, as “represent[ing] some of his state’s traditionally moderate strain”—how does one represent some of a strain?).  Was it perhaps Hamilton’s service as vice president for litigation, and as a board member, of the Indiana branch of the ACLU?  Or maybe Hamilton’s extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion?  That obstruction elicited this strong statement (emphasis added) from the Seventh Circuit panel majority that overturned Hamilton:


For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court inKarlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate.


Or perhaps Hamilton’s inventive invocation of substantive due process to suppress evidence of a criminal defendant’s possession of cocaine, a ruling that, alas, was unanimously reversed by the Seventh Circuit?


With “moderates” like Hamilton, imagine what Obama’s “liberal” nominees will look like.

If Obama was hoping to make the partisan judicial battles a thing of the past, this appointment certainly starts him off on the wrong foot.

Needless to say, I patiently await Obama to answer the bipartisan tone set by President Bush at the beginning of his administration.

March 17, 2009

The Great Liberal/Conservative Divide on Equal Opportunity

A pair of recent Op-Eds highlight the divide between Liberals and Conservatives on race and equal opportunity.  In one of the most insightful articles I have read on the divide between conservatism and minorities, Shelby Steele lays out the foundation of the problem.

"When redemption became a term of power, "redemptive liberalism" was born -- a new activist liberalism that gave itself a "redemptive" profile by focusing on social engineering rather than liberalism's classic focus on individual freedom. In the '60s there was no time to allow individual freedom to render up the social good. Redemptive liberalism would proactively engineer the good. Name a good like "integration," and then engineer it into being through a draconian regimen of school busing. If the busing did profound damage to public education in America, it gave liberals the right to say, "At least we did something!" In other words, we are activistsagainst America's old sin of segregation. Activism is moral authority in redemptive liberalism.

But conservatism sees moral authority more in a discipline of principles than in activism. It sees ideas of the good like "diversity" as mere pretext for the social engineering that always leads to unintended and oppressive consequences. Conservatism would enforce the principles that ensure individual freedom, and then allow "the good" to happen by "invisible hand."

And here is conservatism's great problem with minorities. In an era when even failed moral activism is redemptive -- and thus a source of moral authority and power -- conservatism stands flat-footed with only discipline to offer. It has only an invisible hand to compete with the activism of the left. So conservatism has no way to show itself redeemed of America's bigoted past, no way like the Great Society to engineer a grand display of its innocence, and no way to show deference to minorities for the oppression they endured. Thus it seems to be in league with that oppression.

Added to this, American minorities of color -- especially blacks -- are often born into grievance-focused identities. The idea of grievance will seem to define them in some eternal way, and it will link them atavistically to a community of loved ones. To separate from grievance -- to say simply that one is no longer racially aggrieved -- will surely feel like an act of betrayal that threatens to cut one off from community, family and history. So, paradoxically, a certain chauvinism develops around one's sense of grievance. Today the feeling of being aggrieved by American bigotry is far more a matter of identity than of actual aggrievement.

And this identity calls minorities to an anticonservative orientation to American politics. It makes for an almost ancestral resistance to conservatism. One's identity of grievance is flattered by the moral activism of the left and offended by the invisible hand of the right. Minorities feel they were saved from oppression by the left's activism, not by the right's discipline. The truth doesn't matter much here (in fact it took both activism and principle, civil war and social movement, to end this oppression). But activism indicates moral anguish in whites, and so it constitutes the witness minorities crave. They feel seen, understood. With the invisible hand the special case of their suffering doesn't count for much, and they go without witness."

Picking up on this theme of the liberal view of "opportunity," George Will discusses the resent decision in Bartlett v. Strickland that reigned in racial gerrymandering.  At issue was a North Carolina voting district that divided two counties.  North Carolina was attempting to achieve a "majority minority" voting block to ensure the election of a minority.  Will notes,

"In 1982, the act was amended (Section 2) to say that a violation occurs if nominating and electing processes "are not equally open to participation" by minority voters in that they "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Note that there is no mention of "vote dilution."

But the amended VRA has been construed as follows: Equal "participation" of and "opportunity" for minorities means their ability to elect candidates of their choice, and that must mean minority candidates. Otherwise there has been illegal dilution of the minority vote. Such repellant reasoning expresses two tenets of liberalism's racial fatalism: identity politics (your political identity is your race, gender, ethnicity or sexual orientation) and categorical representation (members of an identity cohort can be understood, empathized with and represented only by members of that cohort)"

Bartlett represents a typical example of the left's idea of equal opportunity.  It isn't about equality or opportunity.  It is about one thing: the appearance of doing something, which they believe only comes through contrived results.  It doesn't even matter whether these results lead to a positive outcome.  As Steele said, it is about doing something, anything.

Next month the Court will hear the case of Ricci v. Destefano (Curt previously blogged about the case here, and I covered Obama's amici here.)  It offers another look at liberal "equal opportunity."  After spending millions of dollars to ensure the test was race neutral, no African-Americans scored high enough on the test to be promoted so the results were simply thrown out.  As Stuart Taylor noted, “Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either." 

These cases set a troubling backdrop as Obama moves to nominate judges.  He wholeheartedly believes in the liberal view of "equal opportunity" achieved through judicial activism. However, even former Clinton Solicitor General Walter Dellinger realizes that "the judicial philosophy issue breaks in favor of conservatives across the country."  But we already knew that.

As I read these articles, I keep coming back to the founders belief that all men are created equal and are entitled to life, liberty, and the pursuit of happiness.  But to a liberal, you don't have those unalienable rights if you happen to live in a North Carolina "minority majority" voting district or you are not an African-American firemen in New Haven, Connecticut.  This should come as no surprise because liberal politics is identity politics. 

Steele eloquently expresses the appeal of conservatism, especially to minorities. 

"The appeal of conservatism is the mutuality it asserts between individual and political freedom, its beautiful idea of a free man in a free society. And it offers minorities the one thing they can never get from liberalism: human rather than racial dignity."

March 16, 2009

Judicial Nominees Imminent

Senate Judiciary Chairman Pat Leahy “expects the first judicial nominees to be announced before the Senate leaves for its recess on April 3,” with “hearings right after the recess," reports CQ’s Legal Beat blog. Last year, Leahy couldn’t find time to hold hearings for judicial nominees who had been waiting months or years, but apparently he’s feeling peppier in 2009.

March 13, 2009

Obama's View on Judges

Throughout the campaign Obama expressed his view that judges should place their hand on the scales of justice to achieve some whimsical, and more importantly undefinable, idea of "fairness"and "social justice."  His views echo typical attacks on conservative judges for not caring for the little guy and "feeling their pain."  I recently ran across a quote in Ayn Rand's Atlas Shrugged that puts this theory in a sobering light.
"Whenever anyone accuses some person of being 'unfeeling,' he means that that person is just."

March 11, 2009

NYT's One Way Standard for Senate Filibuster of Judicial Nominees

The New York Times editorial board has responded to the GOP letter sent to Obama in regards to the judicial nomination process.  I discussed the letter here and Curt provided CFJ's official statement on the matter here

The Times takes the GOP Senators to task for even threatening the use of the filibuster.  Jonathan Adler and Ed Whelan both return the favor in response to what Ed calls a "reckless" editorial.

As Adler notes the Times account is difficult to square with history.  
"The Times’ argument is also difficult to square with history. Senate Democrats did not simply filibuster the “least-competent, most radical” Bush nominees. While the filibuster was deployed against my least favorite Bush nominee, some of those Senate Democrats sought to block were among the most impressive and accomplished. Nominees with majority "well qualified" ratings from the ABA were stalled, while those with simply "qualified" ratings (or worse) sailed through. Senate Democrats did not filibuster Miguel Estrada because he was any more conservative or less qualified than other appellate nominees. To the contrary, he was blocked because Senate Democrats feared he might be nominated to the Supreme Court. In other cases, filibusters were explicitly used as payback for GOP failure to move Clinton nominees, consult adequately with Senate Democrats, or respect the dreaded blue slips the Times now decries as “undemocratic.” If it was okay for the Senate to filibuster Henry Saad to force the renomination of Helene White, how are the Republicans out of line now? (emphasis added)"
The Times real problem with the GOP letter is that they don't want them to have any input on judges as they make perfectly clear in the editorial.  
The nation is now saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims. Mr. Obama has to repair the damage, which will require technically able judges who can provide a counterbalance to the ideologues who control many appeals courts.
What is the Times' proof of this sweeping claim?  Well you will just have to trust them.  

The Times states that, "A filibuster can be an appropriate response when it is clear that a particular nominee would be a dangerous addition to the bench."  But it is clear that, from the Times' standpoint, only Republican nominees will ever rise to the level of a "dangerous addition."  The standard they propose for the filibuster reeks of the same partisan hackery they accuse the GOP of because, under the Times standard, only the Democrats will ever be able to rightly invoke the use of the filibuster.