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Friday, August 26, 2005

Finally, a Reply to Helvidius on Stare Decisis and Roe

Some time ago, Helvidius, you posed for us an interesting query on an issue sure to be raised again and again during the Roberts confirmation cakewalk (interesting history for that term). I have been slow to respond mostly due to a lack of personal virtue, but also because a somewhat virtuous part of me decided to try to think long and hard about stare decisis in our system.

But since our recent dispute in the comments over at De Novo demonstrates that you and I diverge widely on that anyway, I'll just go for a more modest response here on Roe. I'm inclined to agree with the Frankfurter analysis that stare decisis is generally a matter of policy. Thus, one policy reason in its favor is that it promotes certain important values bound up in the rule of law--stability and predictability perhaps chief among them, and creates a resistance to the parallel vices of judicial caprice, rule by whim, and so forth. On the other hand, to say that stare decisis is a matter of policy means that it should be strongest for judges where policy arguments tend to matter most--let's take easy cases like statutory interpretations where bureaucratic practices are at stake. They could be Chevron cases but not necessarily. In such cases, where a legislature can in any event cure the misinterpretation, the interests of predictability, stability, and efficiency are all served by stare decisis, without much by way of strong countervailing interest, since even fundamental errors can be corrected by legislation.

But Constitutional cases naturally pose a different problem, as the damage cannot so easily be cured when they are wrongly decided. They do so even more when they implicate fundamental rights, such as life, liberty and property (those old fashioned fundamental rights that the framers named--we could throw in speech, exercise of religion, and others). When would we ever want to stick with getting fundamental rights wrong as a matter of law because of a policy preference for sticking with the prior decision? I think the answer most people would give is never. That's the answer they would give for Plessy v. Ferguson, and they should. That's the answer they would give for Dred Scott, and they should. Whether they are to be corrected by judicial overturning or constitutional amendment is less important for the moment than that they cried out to be overturned.

Roe is a case that clearly implicates such issues. But both Roe and Casey simply beg the crucial question: acknowledging that the status of the foetus is fundamental to the cases, and acknowledging that neither science nor the text, structure, or history of the Constitution settle the issue, they punt, and declare, after all the Constitution does settle the issue against the foetus in perpetuity. Let's take Roe first:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.


Now, those brave jurists in Casey, who wanted to save us from a jurisprudence of doubt:

Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. [emphasis added]


Except of course they have arrived at an answer, and it cannot be challenged. Given the robust (though unique, as we saw in Lawrence) view of stare decisis advanced by the court in Casey, it is hard to see what would permit the overturning of Roe. But that logic is so tortured it would take days to demonstrate the many ways. One is irresistable, however. As we have discussed here before, and as is plain in any event, one invokes stare decisis when a prior decision is on shaky ground. If it were not, there would now be no bother about why to continue to follow it. So let us see this gem from Casey:

No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.


Well, of course not. The whole point is that this opinion's authors needed endless verbiage to establish a stare decisis defense for Roe because it had no doctrinal footings to begin with! Further, Casey itself all but abandons everything but the holding of Roe, and so it does what it claims has not been done--leaves Roe, as a matter of legal reasoning, behind as a sort of shell of a survivor of obsolete constitutional thinking. It's delicious that the same opinion claims that another important reason for the court to hold as it holds is to maintain the Court's credibility. Work for you?

Now, if the reason we are asked to stick to such a decision is policy and not law, I say no way. The life question is the whole shootin' match, folks. It can't be dodged, yet settled in one direction, and then defended by stare decisis. As Justice Scalia put it:

The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its "balancing" is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is, of course, no way to determine that as a legal matter; it is, in fact, a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.


Stare decisis makes sense for fundamental constitutional issues like the administrative state or even desegregation because by now there is no serious public dispute about either of these. There is lots of disagreement in theory about how big the federal government ought to be, but elections are able to change that, if people were serious about it. Some even think that's what Republicans in Congress have run on for the last 35 years--but they have, without any prodding from the Supremes, expanded government apace. The country seems to have headed there, and there does not seem to be a live legislative or judicial controversy about it. In this sense, we can in retrospect recognize the economic changes of the New Deal and the Administrative State as a Constitutional Moment of the Ackermanian (?) sort. We can do so as a descriptive matter, beyond reasonable dispute I think (the kind of relatively bright line a judge can use) without endorsing the "moment" theory as a normative view of interpretation (thereby inviting judges to get out the divining rods or read chicken entrails to determine if were "having a moment" right now). Similarly, the Civil Rights era would seem to have achieved such a status--there is no serious public defense of segregation, even if there is the possibility of a serious discussion of the reasoning of Brown. (Other aspects of our civil rights debates, such as affirmative action, clearly remain in the hotly contested category.)

But notice that for Roe the circumstances are different: there has been a protracted and serious ongoing debate not just about the reasoning of Roe but about the status of the unborn child. It is why the New York Times has opposed foetal homicide laws, because at the end of the day protecting the right to "choose" only matters when what's being chosen is the end of the life of the foetus. That is, the Times is consistently worried that if people notice that we treat people who kill unborn children as murderers, that might make us think that abortion was...oh, I'd best not say it. I'll give that to the Times editorialists, they are not completely stupid. But I digress.

As I noted above, Roe is about a fundamental individual right wherein the court refused to explain decisively on scientific or constitutional grounds that it could not exist. Nevertheless, it pronounced that right perpetually trumped (Stenberg having put the final stake in the heart of the trimester system with the total triumph of the "health of the mother" standard) by the right to choose. Such a question-begging analysis about an indisputably important issue can hardly be allowed to stand on the grounds of stare decisis. Similarly, if Bowers had been wrongly decided, it would have been wrong about a serious right. And it should therefore have been overturned. Now, I think that Bowers, as a matter of Constitutional law, was correctly decided, and that the anti-sodomy laws would have fallen of their own weight (even in Texas) anyway. Thus, we may be near a Constitutional moment I think on "bedroom" regulation, one that in fact favors Lawrence, but that is nowhere near covering Roe, however much people might like to lump people's interest in saving foetal life in with their purported interest in banning contraception (thus putting Roe into the libertarian camp of Griswold). (And let me repeat, I don't think Lawrence was either necessary or proper as a matter of law, and I don't recommend the Justices look for Constitutional moments in the first instance. Rather, I'm saying that to look back at the massive societal shift that was the move to the Administrative state and not be willing to upend it now as a court is much more defensible, and for that the "constitutional moment" framework might be helpful.)

The problem with that, to repeat and wrap up, is that Roe is unlike these other decisions in that it refuses to settle a particular question of individual right persuasively (by its own lights), and thus uses the Constitution to deny a discrete and insular minority (the unborn) with a persistent group of advocates (pro-life legislators) the right to have their case heard and even won in the legislature. No respectable doctrine of stare decisis can be used to claim that such a dodge on such a fundamental issue is required by law to stand.

[Blogger's note: I reserve the right to amend this post without significant notation, as I have blurted it out freeform in about 45 minutes without breathing, and under heavy emotional disturbance after rereading the majority opinion in Casey.]

Continue Reading "Finally, a Reply to Helvidius on Stare Decisis and Roe" . . .

Thursday, August 25, 2005

Penumbrae, Ghosts and Other Liberal Weapons: Or, Plain ol' Shameful Innuendo

One expects the scurrilous and indefensible from the likes of NARAL's anti-Roberts campaign. But need we also expect it from the Knight Professor of Constitutional Law and the First Amendment at The Yale Law School? I'm afraid so.

Here, Prof. Jack Balkin decides, on the flimsiest of grounds, to raise the possibility that John Roberts might "have been a hitherto unknown part of the Iran-Contra scandal." That would of course be grounds for opposing him. But as you can plainly see from the only "evidence" behind this speculation, there is no evidence behind this speculation. I shared these thoughts with Prof. Balkin in his comments, but I'll repeat them here for the sake of those readers who might think I'm a little unfair with the liberal professoriate from time to time.

The article says this:

There are three reasons the papers were withheld under federal records laws, according to Archives officials. They include preliminary judgments by archivists that information in them would improperly invade a person's privacy (such as revealing a Social Security number), jeopardize law enforcement operations or potentially harm national security.

Under the ordinary course of business, archivists black out individual words or sentences before releasing a document. In this case, National Archives official Sharon Fawcett said, the rush to release a large volume of documents quickly did not allow enough time for surgical redactions -- so the entire page was pulled.

The White House involvement in this process is unclear. Fawcett said White House officials are allowed to offer input during the review process, but she would not discuss their involvement. Senior White House officials said administration lawyers typically examine the documents after the archivists complete the initial review, and they insisted they have not asked for any papers to be withheld that archivists did not first flag.


It's not clear how this translates into "The Democrats obviously want to know what is in those files; the Bush Administration doesn't want anyone to know" (the words are Balkin's, the emphasis is mine).

But, if one chooses to adopt that assumption, it permits one to speculate, without any foundation, that Judge Roberts might have abetted the breaking of laws while he was in the White House, as you do here.

Is there a level at which spouting this sort of innuendo seems inappropriate? Couldn't we wait until something more damning than this article comes out before raising the specter of participation in a major scandal?

I know my answers to these questions, and I'm afraid we now know Professor Balkin's as well.

Continue Reading "Penumbrae, Ghosts and Other Liberal Weapons: Or, Plain ol' Shameful Innuendo" . . .

Wednesday, August 24, 2005

Breyer and Ely?

Jim Lindgren posts an excerpt and review of the WSJ's story on Justice Breyer's new book. Lindgren thinks that it sounds a lot like Ely's Democracy and Distrust. Here are the two pieces he wants to equate:

From the WSJ:
By contrast [with Justice Scalia's book on interpretation], Justice Breyer's "Active Liberty" contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the "real world" consequences of the decisions they render.

. . .

A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government.
From a review of Ely's book in 1980:
Ely's theory of judicial review focuses on allowing everyone equal input in the representative part of the government and free participation in the political process. If the government is a fair representation of the beliefs of the nation, the Supreme Court does not need to make value judgments with one exception, which is the other half of the theory. The Court must not allow the majority to take advantage of the minority. Ely admits that both of these require certain value judgments by the Court; however, the values of fair representation and protecting minorities were invoked by the Founding Fathers. For example, James Madison wrote in The Fe[de]ralist no. 51, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."
I of course haven't read the book, but I don't buy the comparison. First, Ely's views are based on a construction of the Constitution where the 9th Amendment and the Privileges and Immunities Clause actually vested power in the judiciary to expand rights. I have seen no similar textual/structural justification from Justice Breyer in his opinions. Secondly, Ely's view of the Constitution is all about including "out" groups so that they have fair participation in the political process. Justice Breyer's pragmatism is more of a "equal partner" model of judicial review where the judiciary is an active participant in the development of law. This was most clearly evident in his Booker opinion.

In any event, I'm excited for the book. It's hard to see any logic or theory in Justice Breyer's jurisprudence, but I guess we'll see.

Continue Reading "Breyer and Ely?" . . .

The Breaking Point

Linda Greenhouse published this piece in the NYT on Thursday lauding Justice Stevens for his dutiful adherence to the Constitution in spite of his personal views. I think that's probably true of Kelo, less likely true of Raich, but nonsense in Roper. Past terms yield a wealth of cases where Justice Stevens has followed his "Desire," rather than what Greenhouse terms his judicial "Duty."

While it seems weird to be lauding Justice Stevens of all people for his commitment to some sort of formalism, it is certainly true that every judge at least sometimes comes to conclusions with which he or she doesn't completely agree. Even Roper could be defended as not going as far as the Justice would like to go, even though the actual holding was far more Desire than Duty.

What does this tell us about the measure of "Duty" that judges like Justice Stevens employ in their decisions? While every judge begins with some commitment to the actual Constitution, every judge has a breaking point, a point at which a judge abandons an honest inquiry into what the Constitution requires him or her to hold, and finds a way to come to the "right" and "moral" conclusion.

What is most telling about Ms. Greenhouse's piece is that Justice Stevens' not adhering to his own policy preferences is somehow novel.

Continue Reading "The Breaking Point" . . .

Tuesday, August 16, 2005

More on the Kelo Dissent and SDP

I'm sure by now everyone has read Jack Balkin's attempt at likening the Kelo dissent to Dred Scott. He tries a little number where he argues that since the Public Use Clause so clearly doesn't limit private takings, Justice O'Connor (joined by Scalia, Rehnquist and Thomas) is clearly protecting substantive due process. This argument is silly, even for a Balkin post.

He first posits a reading of the Fifth Amendment that limits its protection to takings for public use, meaning that any takings for private use are not even covered:
The Public Use Clause regulates private to public transfers for public use, but note that it says nothing about takings for private use. That is because this category is already dealt with in the first limitation on eminent domain, the Due Process Clause, which prohibits private to private transfers.
To be sure, this is not a terrible argument. It is certainly one reading of the Fifth Amendment, which, like any other reading, has very little "legislative history" support to explain what the clause was meant to mean. That the Court has historically always seen the clause as some sort of limit on the nature of permissible takings probably makes this, in the end, unpersuasive. But this is not Balkin's problem.

He then argues that since Kelo was obviously not a Public Use case, but a Due Process case, Justice O'Connor was, like Taney in Dred Scott, protecting unenumerated rights. Nevermind that O'Connor nowhere mentions reliance on the Due Process Clause, that the case was briefed and argued on the Public Use Clause, and that the Court has always framed the issue in Public Use terms. He notes another seeming paradox:
Nobody accused Justice O'Connor of engaging in substantive due process, and amusingly, Justices Scalia and Thomas, who don't usually recognize unenumerated rights, joined her opinion.
Does he think that Scalia and Thomas were somehow tricked or that he is "outing" them as closet SDP-adherents? It's going to take more than this to prove these two as hypocrites. (See, e.g., BMW v. Gore; State Farm v. Campbell).

Now I think that Justice O'Connor is wrong. But to say that since she was wrong with the Public Use argument, she must be relying on unenumerated rights is to equate misinterpreting a constitutional provision with a judicial philosophy that sees no need for a constitutional provision. Balkin allows no room for misinterpretation, and would interpret every holding by the Court under the Equal Protection Clause, the First Amendment, the Fourth Amendment, etc., with which he disagrees as obviously Due Process violations. Nevermind the text of the opinions; Professor Balkin is responsible for interpreting the actual support for the Court's holdings.

Continue Reading "More on the Kelo Dissent and SDP" . . .

Monday, August 08, 2005

Good and Bad Arguments for a Constrained Judiciary

I found myself this morning on the train defending a part of Larry Tribe's comment in Scalia's A Matter of Interpretation to a fellow federalist attorney. This was such an interesting experience that I figured it would be fun to relate.

A Matter of Interpretation is Justice Scalia's short essay defending textualism. He discusses statutory interpretation and briefly comments on constitutional interpretation. He includes responses to his essay from Gordon Wood, Larry Tribe, Mary Anne Glendon, and Ronald Dworkin. He then responds to their critiques in turn.

Larry Tribe's comment takes issue with Scalia's version of originalism in constitutional interpretation. Although admitting not to have an all-encompassing theory of his own, he seeks to break with both Scalia and Dworkin in offering a conception of interpretation that treats some provisions of the Constitution as "aspirational" in nature rather than static. After a few of the usual ad hominem attacks and claims of judicial hypocrisy, he finally gets to saying that since the text of the Constitution doesn't explicitly call for an original intent approach, it is equally plausible to view such things as freedom of speech, cruel and unusual punishment, and due process as principles that were not meant to remain tied to the founding period, but to expand as society progresses to attain the fullness of human aspirations. This, of course, is committed to the judiciary to implement.

My federalist friend was willing to concede that these provisions should be viewed this way, but refused to accept that it was then for the judiciary to fulfill these aspirations. Even if the framers intended these rights to expand, it should be the popularly elected legislature that leads the charge, not the countermajoritarian judiciary.

This, however, misunderstands Marbury. Justice Scalia's response in his book is that he disagrees that the amendments were meant to be aspirational.[1] Look to the rhetoric of the Declaration of Independence for aspiration, not to the mechanical structure of government in the Constitution. And, Justice Scalia continued, if the rights were meant to be aspirational, then Marbury is wrong that the judiciary is charged with interpreting the scope of those rights. Marshall would not have been so strong in his language if he had known these rights to be aspirational. Such a reading is problematic now and it would have been problematic then.

We need Marbury because we need cases like Lopez, Morrison, City of Boerne, et al. The judiciary has a vital role to play in the protection of "Our Federalism," and the disdain for the recent activism by the judiciary should not infect our arguments with an absolute distaste for the independence of the judiciary. The goal is cabining the judicial power to that which has been popularly given, not the taking away of it altogether.

So Tribe's argument fails because the amendments were not meant to be aspirational, and that the mechanism for change, absent a provision in the amendment or statute, is further legislation, not judicial creation. But we must accept that if he were right and the amendments were aspirational, Marbury gives it to the judiciary to do the aspiring. To do otherwise is to throw the baby out with the bathwater, as it were.



[1] One point that neither discuss is the difference between the 14th Amendment and all the rest in terms of aspiration. I think Ely's arguments in Democracy and Distrust are formidable that the equal protection clause was not meant to be static. The Court's treatment of the clause evidences this as well as it has gone far beyond equal rights for blacks.

Continue Reading "Good and Bad Arguments for a Constrained Judiciary" . . .

Wednesday, August 03, 2005

Clinton's Appointments, The Mainstream, & cetera...

Much has been made, especially by liberal commentators and politicians such as Sen. Charles Schumer, of how balanced President Clinton was in his judicial appointments. A corollary of this, implicitly or explicitly, is that President Bush ought to but has not sought to be so "conciliatory." There is a fair point that President Clinton did not promise his supporters to put people on the Court who would behave like William Brennan, or like Thurgood Marshall, whereas Pres. Bush repeatedly suggested that Justices Scalia and Thomas were his model justices. But of course, the fact that Antonin Scalia and Clarence Thomas are the most "conservative" members of this court does not mean that they are in any interesting way the judicial (but conservative) equivalents of Brennan and Marshall.

More importantly, I think it should be noted that President Clinton got elected because he recognized that for a Democrat to win the White House he needed to run to the right. He needed to reject the "Massachusetts Liberalism" that had gotten Dukakis into trouble and that has fallen out of favor with the national electorate since at least 1972 (President Carter did not run as a particularly liberal fellow in either of his election campaigns).

Thus, it is more than a little strange to hear Senators like Ted Kennedy and Chuck Schumer opine as often and as stridently as they do about the importance of nominees who are within "the mainstream," or to extol President Clinton's nominations as if they were the products of virtue rather then politics. Of course, it is also possible, and I think likely, that President Clinton, who taught Constitutional law and had a lot of generally moderate instincts, recognized just how wacky was the jurisprudence of Justices like Brennan and Marshall. So I will buy that Clinton did not, by and large, appoint terribly left wing people to the judiciary. But I do not accept that he did so because virtue demanded it: he did so because the mainstream is well to the "right" of Senators Schumer and Kennedy, and he was well to the right of them most of the time as well.

Continue Reading "Clinton's Appointments, The Mainstream, & cetera..." . . .

Tuesday, August 02, 2005

Recess Appointments and The Constitution

On Monday, President Bush nominated/installed John Bolton as Ambassador to the United Nations and on Tuesday, nominated/installed Peter Cyril Wyche Flory to be assistant secretary of defense for international security policy. In both cases, the President made the appointments pursuant to his authority under Article II, Section 2, Clause 3 of the United States Constitution. Does that clause in fact give the President the authority to install Bolton and Flory in this way, at this time? Interestingly, the Supreme Court has yet to definitively rule on the scope of the President's power under Article II, Section 2, Clause 3, though a number of circuit courts have passed on the question and upheld presidential recess appointments.

The clause, commonly known as the Recess Appointments Clause, states: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The term "Vacancies" refers to the offices listed in the preceding clause: "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Dispensing with the easier element first, it seems clear that these men were the type of officers contemplated by the framers as being able to appointed under this clause. The more difficult question is whether the appointments are for the types of vacancies contemplated and within the time frame contemplated.

The eleventh circuit recently, in Evans v. Stephens, addressed the constitutionality of Judge Bill Pryor's appointment by the President during an intra-session recess and found the appoint constitutional. In addition, The Second and Ninth Circuits have also decided that the Recess Appointments Clause reaches appointments to Article III courts. See United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). In looking at the Bolton appointment, I would suggest that for two key reasons, the appointment is beyond the scope of the original meaning and purpose of the appointments clause. First, a textual reading of the clause suggests that it was intended to deal with cases where a vacancy arose during a long recess where there was no intent of Congress to return before another session. The vacancies that can be filled are ones that, by the text, happen during the recess. This suggests the framers wanted to limit the clause to cases where Congress had never had the chance to even contemplate the existence of a vacancy, not where they made a (perhaps) conscious decision to leave the post vacant while they recessed. Second, the clause is probably best understood as applying not to intra-session recesses, but to inter-session recesses where Congress was not returning. I say this because the remedy, a commission for the entire session, would otherwise be far greater than the problem at hand. Why, if the clause was also meant to include intra-session recesses, did the Commission not run until the Senate had a chance to act on the nomination consistent with the more natural appointment process. If we accept that, as Hamilton said it was in the Federalist, the Recess Appointments Clause was a gap-filler, intended to deal with the sometimes impractical nature of the Appointments clause, then the clause is more properly limited to inter-session appointments. Otherwise, the session-long commission, which might be given upon only a day recess, seems entirely disproportionate. Common sense history might also suggest a narrower understanding, given that the framers were likely more concerned with politicians being out of Washington for good, which given the difficulty of travel and the shortness of sessions, was almost definitely more likely to happen during an inter-session recess.

I will not endeavor here to attempt to fully canvas the original literature, nor to entirely convince the reader that this narrower reading of the Recess Appointments Clause is correct. I would however suggest that the interested reader peruse the different opinions in Evans. A close reading suggests that Judge Barkett in dissent, usually no originalist, has the better of the originalist, textualist and purposivist arguments as opposed to the majority. The majority is lukewarm at best in its attempt to justify its decision as an originalist interpretation. They instead seem fully satisfied to rest their decision though on a Midwest Oil, Frankfurtian "historical gloss" argument, and in so doing, they might reach the right conclusion for today's modern government. It is beyond the scope of this post to attempt to address whether we should read a historical gloss onto provisions of the Constitution. However, I would suggest that a close reading of the Recess Appointments clause suggests that perhaps it is being interpreted too broadly as a matter of original meaning, and perhaps it is time for the Supreme Court to settle the question once and for all.

Continue Reading "Recess Appointments and The Constitution" . . .

Monday, August 01, 2005

Fantastic Debate

sponsored by the LA Times. Others have pointed it out, but see here for pieces by Epstein, Sunstein, Kmiec, and Chemerinksy, among others, on the Roberts nomination.

Continue Reading "Fantastic Debate" . . .

This Advice and Consent is Silly

I just watched this video by Joe Biden on confirmations and advice and consent. I expected some discussion about the Senate's role in the confirmation process, but was disappointed to hear more screaming about the constitution in exile and how awful the world would be had Judge Bork been confirmed.

Biden likes to work a little trick in these kinds of speeches by talking about how the non-delegation doctrine and the activist, conservative view of the commerce clause threatens to undermine modern government. He talks about how important and foundational Griswold is to the American people, and how the undemocratic Right is undermining American values. As if it is these, and not Roe and Lawrence, that is mobilizing the majority of the country to remake the Court.

"I believe with every fiber of my being that the Constitution protects a Zone of Privacy."Well, no matter how many people believe it with however many fibers, the jurisprudential issue remains that such a right actually isn't in the Constitution, regardless of how badly people want it to be. What followed was the parade of horribles that I remember hearing in con law. This means that the government could mandate limits on the number of children, force women to have abortions, and on and on and on. Apparently since the Constitution doesn't forbid these things, we should all be very worried that they will follow quickly on the heels of Judge Roberts' confirmation. The Left has still failed to explain to us how we can forge a Constitution that will prevent every conceivable harm without creating an uncontrollable judicial power, but they sure like to talk about the hypotheticals.

Maybe rather than more propaganda, one of these guys should put forward a coherent view of the role of the Senate's advice and consent in this process. But I'm skeptical.

The problem is that the general American public is not suited for a debate on the merits of different versions of judicial review. Voters understand rights and privileges and when the Supreme Court makes decisions that they think are right or wrong. They do not understand the intricacies of the role of judicial review in our constitutional order. It doesn't mean they're stupid; they just haven't studied law. Judge Bork's recounting of his interaction with Senator Specter during his confirmation confirms that even many senators on the judiciary committee are not capable of this debate.

What really happens, is that Senators Kennedy and Biden get an opportunity to warp and twist the views of the candidates to scare Americans. In the video I watched, Biden was trying to convince the audience that Bork wanted to repeal the gains of the civil rights movement "wholesale." What? Remember Kennedy's speech before the Bork confirmation hearings? Absolute nonsense. And since jurisprudence is something that the vast majority of voters don't understand, all the explanations from the nominee or his or her witness do not matter. While many liberals are calling for sensible discussion on this confirmation, and for a look at the judge's views and how it will impact the Court, I either do not buy their intentions, or am skeptical that such a thing would happen.

I'm fully confident in Judge Roberts' abilities for these hearings. I think he's going to sail through, and any of these tactics by Kennedy and Biden are going to be futile because Roberts isn't going to get sucked in the way Bork did. He's used to being grilled by the Justices, and these stupid little questions from the two numbskulls are going to be easy hurdles.

Moral of the story? 1) Roberts was an extremely good pick, both because of his abilities and because of his ability to get confirmed; and 2) the advice and consent created by the liberal senators is a brute scare tactic that is used to trick voters. It's hard to see how that is either advice or consent.

Continue Reading "This Advice and Consent is Silly" . . .

More on the Federalist Society and Debate

More internal dissent among ex posters. Regarding Phocion's post below, PG says, among other things:
[T]he American Civil Liberties Union asserts its sole purpose as being defense of the Bill of Rights (except for the strongest reading of the 2nd Amendment), whereas the Federalist Society, despite claims that it is only for debate, asserts certain views associated with conservatism on its own website.
I think she's missing the point.

An organization can obviously be for debate because their views are not being properly represented. Sure, the members of the organization generally ascribe to "certain views associated with conservatism," but that doesn't mean they're not primarily interested in convincing people through debate rather than misleading propaganda. Nor do those certain views tell us anything interesting because those views contain both sides of every major issue (the fascinating libertarian/conservative dynamic). This is Phocion's larger point, that since every view is represented somewhere in the Federalist Society, and are being debated, everyone should want to be involved in that debate.

The Federalist Society does not, like the ACLU, take a position that is contested if not essentially contested and dogmatically ascribe to it and litigate it for all it's worth. The Federalist Society is about recognizing the importance of ideas, and either debating them among themselves or interjecting debate into the law schools. If we are going to gain members, it is going to be through rigorous debate, not a requirement that new members agree with us.

So the distinction between the Federalist Society and some of its compadres on the Left is the method of persuasion. What we think we've learned that the Left misunderstands is that when you stop trying to convince people and try and force things upon them, your efforts don't stick, and are only good as long as your people are in charge (i.e. as long as you have a majority on the Court). If you convince people, however, then they continue to run things the way you would like. I think this is far more honest, focuses on genuine debate about issues rather than misleading propaganda.

Brown is the obvious exception, and continues to be the rallying cry for the litigating Left. Since Brown was more accurately a cause at the forefront of the civil rights movement rather than an effect of democratic legislation, we decide that we don't need to engage the public in debate, but will take our case to the courts and convince them to make the important changes.

But Brown should not be such a catalyst. Its reasoning was a sham, and could have easily been reached by an interpretivist approach and saved the legitimacy of the written constitution. And whatever value the departure from a formalist understanding of the Constitution in the context of blatant racial discrimination, issues like abortion and the use of the death penalty for murderers do not warrant such a departure.

To be fair, PG's post comes around and concludes that we need to be focusing on Roberts' jurisprudence, not his club membership. But I think Phocion's points are spot on. In my experience, the vast majority of federalist society members are in the organization to learn through the debate, have not made up their minds on every issue. And even for those issues that we are pretty convinced, it is through debating the issues that we plan on bring others to the fold.

Continue Reading "More on the Federalist Society and Debate" . . .