A commenter to an earlier post wondered whether the relatively low rate of Senate confirmation of Bush appellate nominations in the past two years can be explained, in part, because Bush nominees were confirmed more rapidly (in comparison to prior administrations) earlier in his term. The short answer is "no."

For comprehensive statistics on judicial confirmations from 1977 through February 2004, one can consult this CRS report. For judicial confirmations since then, one can look at the website of the Office of Legal Policy, which has data on confirmations during the 108th and 109th Congresses. For the current Congress, one can consult the data maintained by the Administrative Office of the U.S. Courts here.

Consulting these sources, here is what one finds. President Carter had 56 appellate nominees confirmed. President Reagan had 83 appellate nominees confirmed over two terms (for an average of 41.5/term). President Bush (41) had 42 confirmed. President Clinton had 65 confirmed (an average of 32.5 term). President Bush (43) had 35 confirmed during his first term, and has had 24 confirmed since, for a total of 59. This data shows a clear, and fairly consistent, downward trend over the past thirty years.

One also sees a downward trend in the confirmation percentage of appellate appointees. These figures from the CRS reports are as follows: Carter - 91.8%; Reagan - 81.4%; Bush(41) - 77.8%; Clinton: 56.5%.

The confirmation percentage for President Bush's first term through 12/9/2003 was a measly 32.3%. Since then, it has improved. By my calculation, the confirmation rate for appellate nominees during Bush's first term was a respectable 67% and it has been 56% thus far in his second term, for an overall average of 62%. One factor that aided this percentage was the "Gang of 14" deal, that set aside the filibuster of several Bush nominees. The other was the slow rate at which the Bush Administration has made appellate appointments. In any event, it is worth noting that while President Bush has seen fewer appellate nominees confirmed to the bench than his predecessors, the percentage of his appellate nominees confirmed is slightly higher than that of President Clinton.

For my part, I would like to see more of President Bush's nominees confirmed, particularly Peter Keisler (D.C. Circuit), Robert Conrad (4th Circuit), and Rod Rosenstein (4th Circuit), all of whom are extremely well-qualified nominees deserving of confirmation (and two of whom are actively supported by the Washington Post, which has also called for quick action on Conrad). I would also like to see an end to the downward trend in appellate judicial confirmations and needless obstruction by either party, and I hope that the next occupant of the Oval Office -- whether Obama or McCain -- sees any and all qualified appellate nominees considered and confirmed without undue delay.

The Club for Growth's Pat Toomey explains why his organization is opposing the re-election of Congressman Don Young (R-AK).

Over his 35 years in Congress, Mr. Young made himself into the most powerful Republican on the House Transportation Committee. But instead of using his power to steer Republicans down a principled, conservative track, he helped derail the GOP train in 2006.

Mr. Young spends taxpayer money so wastefully he could make a liberal Democrat blush. As chairman of the Transportation Committee (from 2001 to 2007), Mr. Young was directly responsible for one of the biggest boondoggles of the Republican majority – the 2005 highway bill. With a price tag of $296 billion, the highway bill contained a record 6,371 pork projects. . . .

During his time in Congress, Mr. Young has come to represent the worst of a Republican Party that became too comfortable in power. In 1995, a Republican majority passed a budget that actually cut spending. Today, only 40 Republicans out of 248 GOP senators and representatives have sworn off earmarks, despite overwhelming support for earmark reform among the party's base and the general public.

Just 12 years ago, the Republican Caucus, including Mr. Young, voted for a bill to phase out farm subsidies. Three weeks ago, Mr. Young and many of those same members voted for a farm bill that exemplifies everything the GOP once stood against. Somewhere between then and now, many congressional Republicans abandoned their former commitment to limited government, fiscal discipline and economic freedom.

I wish Toomey luck in unseating Congressman Young.

On Monday I will appear on a panel at AEI in Washington, D.C. to discuss the legal and other implications of the Interior Department's decision to list the polar bear as a "threatened" species under the Endangered Species Act. Joining me on the panel will be Bryan Arroyo, Assistant Director for the Endangered Species Program for the Fish & Wildlife Service. AEI's Ken Green will moderate. Details about the event are here.

On Wednesday morning I led a session on “Federalism and the Roberts Court,” in which we considered the likely trajectory of the Court’s federalism jurisprudence. Efforts to reinvigorate the judicial safeguards of federalism were a hallmark of the Rehnquist Court’s jurisprudence. A slim majority of the Court sought to advance this cause in two areas: Enumerated Powers (commerce clause, Section 5 of the 14th Amendment) and State Sovereignty (sovereign immunity and commandeering). Further, these cases tended to split along traditional ideological lines.

These issues – enumerated powers and state sovereignty – have been largely absent from the jurisprudence of the Roberts Court thus far. While such traditional federalism concerns were quite evident in some prominent cases (e.g. Gonzales v. Oregon, Rapanos), such concerns merely served to narrow the Court’s statutory interpretations, and the justices largely avoided any consideration of the underlying constitutional questions.

This far, the action has shifted to questions of preemption and the dormant commerce clause. The latter area, in particular, seems ripe for change as the Court’s recent decisions in this area (e.g. United Haulers, Ky. Dept. of Revenue v. Davis) suggest the Court may be ready to simplify or even scale back its enforcement of commerce clause limits on state regulatory authority. Also interesting is that the Roberts Court’s cases in these areas have not broken down along traditional ideological lines. Consider, for instance, the divisions in Watters v. Wachovia Bank, a preemption case in which Roberts and Alito split, and Kennedy’s dissenting votes in the dormant commerce cases. In short, the early returns suggest that federalism in the Roberts Court could be quite different than federalism in the Rehnquist Court.

Will this pattern continue, or will the Court return to the federalism battlegrounds of the Rehnquist years. Given the small size of the Court’s docket, it may not mean much that it has yet to hear a significant enumerated powers or state sovereignty case. Such cases could still be waiting in the wings and a more traditional ideological split in preemption or dormant commerce clause cases could yet emerge.

This morning’s plenary considered “Regime Politics and the Roberts Court.” Moderated by Stephen Griffin (Tulane), the panel featured Pamela Karlan (Stanford), Thomas Keck (Syracuse), and Neil Siegel (Duke). As Griffin explained, the aim of “regime politics” analyses in political science is to explain constitutional doctrine by reference to the governing partisan coalition of which the Court may be a part. In this regard, such analyses seek to situate the Court in the broader context of American politics, political regimes, and governing coalitions. While Justices may reflect the Presidents that nominated them, and the time at which they were nominated, they may also respond to broader political changes and social movements.

The June ABA Journal cover story focuses on the confirmation "logjam" that has left four vacancies on the U.S. Court of Appeals for the Fourth Circuit -- three of which are classified as "judicial emergencies" and one of which has been open for almost 15 years. (There were five vacancies when the article went to press, but Steven Agee was recently confirmed --the first confirmation to the Fourth Circuit since 2003.) Given there are 15 seats on the Fourth Circuit, the court is operating at less than 75 percent strength.

As the article makes clear, Senators from both parties have contributed to the obstruction of fourth Circuit nominees for some time. Senator Jesse Helms, in particular, kept one North Carolina seat open for over six years during the Clinton Administration because Senate Democrats had refused to confirm his protege Terrence Boyle to the court when nominated by the first President Bush. Senator John Edwards returned the favor when President Bush was elected, blocking Boyle's confirmation as payback. And since then things have only gotten worse. The political fights over judicial nominations have steadily escalated over the past twenty years, and there is no sign it will let up soon.

The reason the nomination logjam has lasted this long is that judicial retirements have turned what was once the nation’s most reliably conservative appellate court into one split evenly—between judges appointed by Democratic presidents and those appointed by Republicans.

With the circuit’s ideological direction hanging in the balance, there’s been near-paralysis in Washington. The president has nominated reliably conservative lawyers to fill most of the vacancies, and the Democrat-controlled Senate has failed to act on most of the nominations. Meanwhile, the work of the circuit grinds on, with fewer and fewer judges to shoulder the burden.

Since Democratic Party leaders are feeling confident about their prospects for retaking the White House this fall, chances that any nominees beyond Agee will be confirmed before Bush leaves office in January range from slim to none, most experts say. And if the next president is a Democrat, his or her nominees could remake the 4th Circuit into a more moderate appeals court for a generation or more.

Despite the judicial shortage, the 4th circuit continues to dispose of cases quicker than almost any other circuit. But it does so while granting oral argument in fewer cases than its counterparts, and by issuing fewer substantive opinions explaining its decisions.

In 2006, the 4th had an average disposition time per appeal of 91⁄2 months, which tied the 11th Circuit as the quickest in the nation. The 9th Circuit had the slowest, at nearly 16 months. The national average was slightly longer than 12 months.

Judges in the 4th Circuit also consistently rank as among the hardest-working in the federal appeals courts. In fiscal year 2006, 679 appeals per active judge were terminated on the merits. Only the Atlanta-based 11th Circuit, with 877, and the New Orleans-based 5th Cir­cuit, with 836, ranked higher. The D.C. Circuit had the fewest, at 173. The national average was 539.

But the 4th Circuit granted oral argument in less than 12 percent of its cases in 2006, far and away the smallest percentage of any circuit in the country. The average for all circuits was nearly 26 percent. That same year, the circuit also issued the lowest percentage of published opinions, at just over 6 percent. The average for all circuits was just under 16 percent.

Chief Judge Karen J. Williams, a 1992 appointee of the first President Bush, says the court is making the best of a bad situation.

The circuit has been able to stay current with its workload so far without suffering any loss in quality—in part by relying on its senior judges, and by inviting trial judges in the 4th Circuit and senior judges from other circuits to sit by designation, she says.

But she also says it won’t be able to do so indefinitely. “While we can continue to get our work done in a timely manner for the near future, over time the vacancies on our court, if not filled, may begin to have an adverse effect,” she says.

Today, D’Ambrosio v. Bagley, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit split over an interesting question in a capital habeas case: Where a habeas petitioner makes a Brady claim that the government suppressed or withheld mitigating evidence, when does the government “expressly waive” its defense that the petitioner failed to exhaust the Brady claim in state court? In this case, a divided panel held that the government’s conspicuous failure to raise such a claim could constitute an “express” waiver, even though the waiver was never made explicit. On this basis, the court upheld the district court’s grant of death-row inmate Joe D’Ambrosio’s habeas petition. Judge Rogers wrote the opinion of the court, joined by Judge Gibbons. Chief Judge Boggs dissented in part.

Here is how Judge Rogers summarized the case in his majority opinion:

Joe D’Ambrosio was convicted of murdering Anthony Klann in 1988. After D’Ambrosio discovered evidence that the prosecution had withheld during his trial, he amended his then-pending habeas petition to add a Brady claim. The district court granted the writ. On appeal, the warden argues, for the first time, that D’Ambrosio failed to exhaust his Brady claim and should be required to return to state court to relitigate the claim there. Although D’Ambrosio’s Brady claim was not presented to a state court, we do not dismiss his petition because the warden expressly waived the exhaustion requirement.

The warden expressly waived the exhaustion requirement because her counsel’s conduct during the district court proceedings manifested a clear and unambiguous intent to waive the requirement. In response to D’Ambrosio’s motion to amend his habeas petition in order to add the Brady claim, the warden stated that she took no position on the motion, but requested the opportunity to file a response if the district court granted the motion to amend. On October 25, 2002, the warden filed a motion to expand the record to include evidence that the warden argued undermined D’Ambrosio’s Brady claim. On November 25, 2002, the district court granted both motions. Importantly, with respect to D’Ambrosio’s motion to amend his habeas petition, the district court stated that its understanding was that the warden would not argue that the Brady claim was unexhausted . . . .

This is an extraordinary case in which the district court stated that it understood exhaustion to be a non-issue and that the warden would not later assert it, the warden failed to correct what the district court clearly viewed as the warden’s position during the almost four years of litigation before that court, and the warden went on to state to the district court that D’Ambrosio’s claims would be untimely in the state courts (thereby confirming the district court’s understanding). We are aware of no binding authority that says that such conduct by the State is not an express waiver of the exhaustion requirement.

Another interesting aspect of D’Ambrosio is the non-ideological split it produced. As I’ve been noting in a series of posts, the sixth Circuit appears to be quite ideologically divided on habeas matters, particularly in death penalty cases. Particularly in divided cases, “liberal” judges vote to grant habeas petitions and “conservative” judges vote to deny. In this case, however, all three judges on the panel – Boggs, Gibbons, and Rogers – would generally be considered “conservative, and two of the three voted to affirm the district court’s grant of habeas relief.

This morning’s plenary panel is on executive power. Moderated by conference chair Mark Tushnet, it features the line-up of Kathleen Clark (WashU), Joseph Margulies (Northwestern), Sai Prakash (USD), and Adrian Vermeule (Harvard). Tushnet opens with the observation that the law of executive power seems to “come in waves.” There was “Nixon Law” (impeachment, exec privilege, war powers), then “Clinton Law” (impeachment, privilege, and immunity), and now “Bush Law” (war powers, secrecy).

Kathleen Clark addressed “Accountability Mechanisms and National Security Secrecy.” In short, her claim is that assertions of national security secrecy undermine political accountability mechanisms within the separation of powers. From this perspective, secrecy not only serves to advance executive functions, but also to insulate the executive branch from oversight by other branches and the public at large.

Clark provided a useful typology of accountability mechanisms based upon how they were created and where they are situated, ranging from those that are wholly internal to the executive branch (such as the Office of Legal Counsel opinions, the Office of Professional Responsibility, etc.), Congressional accountability mechanisms (oversight hearings, legislative protection for whistleblowers etc.), judicial accountability mechanisms (Bivens actions, etc.), and those that are external to the government (media, elections, etc.). In each of these cases, Clark observed, assertions of secrecy can undermine, if not wholly disarm, the accountability mechanisms.

Clark’s presentation highlighted an interesting tension between secrecy and accountability. Without question, secrecy in national security and other matters is sometimes essential (though downplayed by clark). There are some things governments must do under cover. Yet Clark is certainly correct when actions (and their justifications) are kept secret, even formal accountability mechanisms may cease to function. Striking the right balance is particularly difficult. To focus on an example Clark used as a case study – NSA surveillance – some degree of secrecy is necessary to ensure the effectiveness of certain types of surveillance activities. At the same time, the high degree of secrecy about this particular program made it particularly difficult for Congress (let alone the public) to ensure that Executive Branch was complying with relevant statutory and constitutional constraints. Even if one believes that the Bush Administration’s surveillance initiatives were necessary for national security, allowing the executive branch to initiate and engage in such activities in virtually complete secrecy reduces the likelihood that such activities will be conducted in a responsible fashion and deactivates the political checks that ultimately constrain overbroad assertions of executive power.

Sai Prakash spoke on the theory of the unitary executive in the Bush Adminsitration. Where many argue the Bush Administration has been too aggressive in asserting the theory of the unitary executive, Prakash’s view is that the Administration has paid “too little” attention to the theory of the unitary executive. This theory, Prakash hastened to add, has “nothing to do” with many the Bush Administration’s assertions of executive power. As he explained, the theory says little if anything about war powers, foreign affairs or the executive’s ability to disregard congressional enactments. Rather, the theory of the unitary executive is almost exclusively concerned with “law execution.” In other words, it is about the executive branch as a unified whole under the control of the President, and says little about the scope of the executive power or even the executive branch’s ability to contravene Congressional command.

In practice, Prakash argued, much of what occurs within the executive branch occurs independent of meaningful Presidential oversight. In some instances we actually have “multiple, plural executive counsels,” rather than single chief executive because of the existence of independent agencies, such as the FCC and SEC, that are able to operate without executive oversight. As a consequence, the President does not “take care” that the laws within these agencies’ control are executed. For those concerned about a “unitary executive,” this is of greater concern than whether the executive has the authority to act unilaterally with regard to national security or foreign affairs. (Perhaps, as Clark suggested in comments, the Bush Administration has sought to follow a “unilateral executive” model, rather than a “unitary executive” model.)

Joseph Margulies discussed the Bush administration’s detention policies and their relation to the architecture of executive power. Margulies argued that the Bush Administration’s policies on detention are largely unchanged from 2001 and 2002, despite extensive criticism and a (near) consensus that its policies are wrong-headed if not also illegal. One aim of Margulies’ talk was to explore why the policies are so resistant to change if they lack legitimacy or support.

Margulies suggested that criticism of the Bush Administration’s detention policies is universal, but I think he overstates his case. There is no question that academic criticism of the Administration’s detention policies is (almost) universal. A similar consensus appears to exist abroad (at least in public). Some aspects of the Administration’s policies have also been challenged from within the executive branch and by the courts, including the Supreme Court. Yet on the political right there remains substantial support for the executive branch’s unilateral authority to detain enemy combatants as unlawful combatants and military adversaries. Many individuals, within the administration and without, believe that such measures are necessary for the security of the nation, and must be pursued even in the face of substantial opposition.

Margulies explanation for the present situation is that there is a dominant cultural and political narrative that existing policies are “flawed” and should be criticized. This makes it necessary for political elites to disclaim existing policies. Yet there is relatively little public concern for detention policies. That is, the average voter is far more concerned about other issues, so the political consequences of maintaining existing policies are virtually nonexistent. So political elites can condemn existing policies, but need not do anything to change them. One implication of this, Margulies suggests, is that it can be particularly difficult to control or discipline unpopular exertions of executive power absent electoral change.

Adrian Vermeule sought to look forward to the next administration, and consider how a President McCain or Obama will approach executive power. Drawing on theoretical and empirical research in the political science literature, Vermeule noting the prevalence and importance of “cross-over policy-making” – the tendency for left-wing presidents to supply right-wing policies and vice-versa. As explained by Vermeule, there is a tendency for Presidents to successfully advance policies that appear contrary to their ideological orientation. One reason such efforts are successful is because voters, lacking information, find executive claims to be more credible when they are contrary to the executive’s stated ideological preference. So, for instance, the public is more suspicious of hawkish policies from a hawkish president than from a dovish president, and vice-versa. This is self-limiting, as a right-wing president who moved too far to the left will lose his reputation as a”right-wing” president, but is nonetheless significant.

What does this mean for the next Administration? Perhaps, Vermeule suggested, this means that a President Obama would “engage in some symbolic civil-libertarian policies” on high-profile issues, but could also maintain or expand some Bush Administration national security and counterterror policies more successfully than a President McCain. Just as “only Nixon could go to China,” only a President Obama could escalate existing policies, and perhaps only a President McCain could withdraw from Iraq or negotiate with Iran. This asymmetry in political constraints means (in technical terms) that the mode and the mean of presidential policies are likely to diverge. In lay terms, while the majority of a President Obama’s policies are likely to be liberal, his ability to advance very liberal policies is truncated; he has more room to move to the right than to the left. Consider the Bush Administration: While definitely advancing “right-wing” policies on most issues, there are key areas in which the Bush Administration has moved farther to the “left” than would have a Democratic President (e.g. No Child Left Behind, Medicare Drug Benefit, federal spending). Looking forward, this means that on a handful of issues, it is likely that Obama could advance quite right-wing policies. The difficulty, of course, is that it can be difficult to know where a given President is likely to advance policies contrary to his ideological orientation.

Via Richard Winger's Ballot Access News comes this interesting story.

Perennial candidate Bob Kelleher won an upset victory in Montana’s Republican U.S. Senate primary early Wednesday, . . .

Kelleher, an 85-year-old attorney from Butte, will challenge Democrat incumbent Max Baucus in November. Baucus is a five-term U.S. senator who had more than $6 million in the bank in May and has raised more than $10 million since he was last re-elected in 2002.

Kelleher, who has run for office in the state at least 13 times, has not filed any campaign finance reports, meaning he has not raised or spent more than $5,000 in the race.

The new nominee’s views are far from the mainstream Republican party in Montana. He has run as both a Democratic and a Green Party candidate, and he has advocated more gun control. . . .

Kirk Bushman, an industrial facilities designer from Billings, and former Montana House Majority Leader Michael Lange were thought to be the front-runners in the Republican primary. But with 96 percent of precincts reporting at 1 a.m. Wednesday, Kelleher had a wide lead over both of them with 36 percent of the vote. Lange had 23 percent, and Bushman had 21 percent.

There is some speculation that Kelleher won simply because, having run for office so many times before, he had high name recognition among primary voters in a crowded field.

The Senate has confirmed President Bush's appellate judicial nominees at an amazingly slow rate. Despite pledges to confirm three additional nominees before Memorial Day, the Senate has only confirmed two nominees all year, while numerous well-qualified nominees sit and wait. By comparison, a Republican Senate confirmed eight of President Clinton's appellate nominees during his last year in office. Since January 2007, the Senate has confirmed eight appellate nominees, whereas a Republican Senate confirmed fifteen during President Clinton's last two year.

It's certainly possible that the Senate rush several nominees through over the summer, but even with such an effort, this Congress will stand out for its snail-like pace. So it should be no surprise that Republicans are upset. Senator Mitch McConnell, in particular, has had enough.

At the beginning of this Congress, the Majority said it would meet or exceed the average of 17 circuit court nominees that have been confirmed in prior Congresses; yet it has only confirmed eight circuit court judges thus far. More disturbing, the Chairman of the Committee recently threatened to shut down the confirmation process completely, an action that would break yet another historical precedent.

The Majority said it would treat Republican senate delegations fairly; yet for months, the Democratic Majority has only worked on circuit court nominees from states with a Democratic senator.

The Majority said it would do its ‘utmost,’ said it would do ‘everything’ possible, said it would do ‘everything within its power’ to confirm three more circuit court nominees by the Memorial Day recess; yet it only confirmed one nominee. Moreover, it appears the Majority did not seriously attempt to honor its commitment. Indeed, since that deadline passed almost two weeks ago, the Democratic Majority has still failed to confirm more circuit court nominees.

The Democratic Majority has refused to honor its commitments. It apparently believes that commitments do not matter in the United States Senate, and that actions do not have consequences.

As longtime readers know, I also worry that the unprecedented intransigence risks further exacerbation of political conflict over judicial nominations. While I do not expect Republican Senators to filibuster or otherwise obstruct a President Obama's nominees — and I will not support such efforts — such tactics appear increasingly likely. This is unfortunate. What we need at this point is not more nominations conflict, but a gradual de-politicization of the nomination process so that Presidents of either party can select the most qualified nominees who share their jurisprudential vision. I believe the Senate should have rapidly confirmed President Bush's nominees, and I hope (even if in vain) that the Senate will do the same for President Obama or McCain.

UPDATE: I won't rehash it all here, but I've posted extensively on the history of judicial nomination fights before. I summarized these posts (and provided links) in this post: "Judicial Nomination Fights -- Past and Present."

This is the first of a few posts summarizing some of the plenary panels from the AALS mid-year Conference on Constitutional Law, currently underway in Cleveland, Ohio.

The opening plenary panel focused on “The Changing Roberts Court.” Moderated by Lori Ringhand (UGeorgia), the panel featured Eric Segall (Georgia State), Erwin Chemerinsky (Duke/UCIrvine), and Lee Epstein (Northwestern). Soon-to-be-Dean Chemerinsky led off noting that every GOP presidential candidate for the past 40 years has sought to shift the Supreme Court through the nomination of conservative jurists. Such efforts have had little effect, Chemerinsky observed, until now. With the confirmation of Chief Justice Roberts and Justice Alito, he suggested, there is now a fairly reliable conservative majority on the court as, on most issues, Justice Kennedy appears to be “anchored” to the conservative majority.

Chemerinsky’s thesis, as he described it, is that the Roberts Court should really be called the “Reagan Court,” because the unifying element of the Court’s conservative leanings is not a commitment to any particular conservative judicial doctrine (e.g. originalism), but a commitment to the political and ideological positions espoused by conservative Republicans in the 1980s. Further, Chemerinsky argued, the Court is not particularly “minimalist” or restrained in its approach, particularly when Justice Kennedy joins the conservative bloc. According to Chemerinsky, the Court’s opinion in cases like Parents Involved and Garcetti v. Ceballos are evidence of a conservative majority that is quite willing to push a conservative agenda quite aggressively, often with little regard for precedent. I think Chemerinsky overstates his case (see my take on last term here) and, as he readily acknowledged, the current term has not produced the same sort of results (at least not yet).

In calling the Court the “Reagan Court,” Chemerinsky explained, he means that (so long as Kennedy is willing) this is a court majority that consistently sides with the government over individuals when individual liberties or civil rights are at stake. As example, Chemerinsky points to the school desegregation, abortion, and religion cases. Yet this is a difficult position to square with cases like Wisconsin Right to Life, in which the conservative justices sided with the ability of non-profit groups and independent voices to challenge incumbent politicians and government regulators.

Another thing that makes this the “Reagan Court,” Chemerinsky explained is its pro-business orientation. This is “the most pro-business Supreme Court since 1937.” Yet as we have discussed before on this blog, this charge misrepresents the nature of the Roberts’ Court’s business docket. For instance, Chemerinsky cites the Court’s antitrust decisions (e.g. Leegin) – a subject he admitted he “know[s] nothing about” – for this proposition, yet this is a pro-consumer, anti-competitor decision. It’s an anti-regulation decision, to be sure, but that does not make it a “pro-business” court.

Finally, Chemerinsky said this is the “Reagan Court” because it consistently “favors executive power over separation of powers.” Certainly here Chemerinsky’s claim is quite strong. The Reagan Justice Department advanced fairly aggressive notions of executive power (although not always as aggressive as those of the current administration) and the conservative majority is certainly sympathetic to such arguments, particularly in the national security context. Here, however, it is worth noting that Justice Kennedy has been less “anchored” to the four conservative justices in this area than in many others and in lower profile, administrative law cases (such as Mass v. EPA) the Court has been anything but deferential to the executive branch.

Eric Segall was next, and argued that the “Roberts Court” should be called the “Kennedy Court,” as he is the “key swing vote,” and the only thing standing in the way of overturning numerous precedents of the Warren and Burger Courts, particularly in the context of individual liberties and criminal procedure. As Segall noted (as have many before), Justice Kennedy is the swing vote in a high percentage of cases particularly those divided on ideological grounds. While this term is shaping up quite differently, last term Justice Kennedy was almost never in dissent. Further, in many key areas, Justice Kennedy has authored the majority opinion for the Court. In many ways, Segall notes, Justice Kennedy is far more influential and powerful on the current Court than was Justice O’Connor. Insofar as Justice Kennedy has appeared to be less influential in the current term, Segall suggested, this is because the Court has (thus far) decided fewer “divisive” cases (defining “divisive” as 5-4 decisions split on ideological lines).

Segall’s view is that “there are two Justice Kennedy’s serving on the Supreme Court.” The first is a fairly traditional justice, a moderately conservative justice who is a “formalist” in that his opinions “pay lip service to the traditional approaches to constitutional interpretation.” The other Justice Kennedy, Segall noted, is the “romantic” Justice Kennedy, who grounds his opinions in sweeping first principles and focuses on the policy implications of his decisions. This latter Justice Kennedy is the one who “infuriates Justice Scalia and other members of the right wing” with his flowery language, citations to foreign sources of law, and failure to ground decisions on text, original meaning, precedent or tradition. According to Segall, this Justice Kennedy is refreshingly “transparent,” because he openly acknowledges that many decisions cannot be decided without recourse to philosophical principles or policy preferences. In cases such as Lawrence v. Texas or even U.S. Term Limits v. Thornton, he relies upon meta-principles and eschews “hiding behind indeterminate legal sources.” Indeed, some of these decisions don’t even read like Supreme Court opinions, but ruminations on political principle. In Segall’s view, Justice Kennedy is more consistent than many presume, in that his preference for more traditional or romantic approaches to decisions is rather stable, but it also keeps him in the middle for many important cases. So, Segall concluded, “in order to understand the Court, we’re going to have to understand the man.”

Lee Epstein offered a slightly different view: “The Roberts Court So Far: Why Conservatives Should Continue to Yearn, and Liberals Should Continue to Fear.” In her view, the Roberts Court is more of a continuation of the “Republican Court” that was ushered in by President Nixon’s appointments beginning in 1969 than the beginning of a new conservative or Reaganite judicial era.

Unlike the other panelists, Epstein’s approach was more quantitative, focusing more on the larger trends than on individual doctrinal developments or individual high-profile cases. From this perspective, Epstein argued, that the Court began to tilt in a “conservative” direction beginning in 1969, and has remained fairly conservative since. Based on the overall percentage of cases decided in a “liberal” or “conservative” way, the Court was reliably liberal during the Warren Court, and has been fairly reliable since. Similarly, she notes, there has been relatively little change in the ideology of the median justice on the Court over the past few decades.

While Justice Kennedy is slightly to the right of Justice O’Connor on some issues, there are other instances where he was to her left, and joined with the liberal justices to form majorities while she was still on the Court (see, e.g., Roper v. Simmons. Another interesting observation is that while Justice Alito is more “conservative” than Justice O’Connor, this effect has been offset by Justice Breyer’s slight migration to the left in recent years, resulting in relatively little change in the Court’s overall ideological balance. Moreover, Epstein cast doubt on claims that key cases from last term would have come out differently had O’Connor remained on the Court.

This week the Senate is debating S.3036, the Lieberman-Warner Climate Security Act. A key feature of the bill is the creation of a cap-and-trade system for carbon dioxide emissions. Basically, the government will cap aggregate carbon dioxide emissions and allocate tradeable emission credits (or "allowances") to firms. The point of such a regime is to reduce the cost of emissions control by encouraging the greatest reductions from those firms that can reduce their emissions at lowest cost. Assuming the transaction costs of the trading regime are relatively low, firms with comparatively high emission control costs could purchase credits from firms with comparatively lower control costs.

A key issue in setting up any cap-and-trade is how to allocate the credits. One way is to "grandfather" existing firms, and allocate credits in proportion to current or past emissions. Another way (typically favored by economists) is to auction off the credits. This is one of the ways credits will be allocated under S. 3036. Specifically, carbon allowances will be auctioned off and the government will use the proceeds to invest in low-carbon technologies and attempt to offset energy price increases caused by the imposition of a carbon cap.

If enacted, S.3036 would generate substantial revenue for the federal government. This prompts a question from a reader: Why, then, is this not a "Bill for raising revenue" under Article I, section 7 of the Constitution (the "Origination Clause"), which requires that such bills "originate" in the House of Representatives? Good question, I thought. I don't teach this issue in my Constitutional Law class, and I'm a bit rusty on legislative procedure.

A super-quick (and superficial) web search reveals an answer: Bills that are primarily for other, non-revenue-generating purposes, that have the incidental effect of raising revenue, don't count. So, for example, under United States v. Munoz-Flores, a bill imposing a "special assessment" on some criminals under the Victims of Crime Act of 1984 was not a "Bill for raising revenue" that needed to originate in the House. Given this holding, and the Supreme Court's general tendency to defer to Congress on such questions, it appears that an Origination Clause challenge to a climate cap-and-trade bill that originated in the Senate would not be very fruitful.

[NOTE: Post edited to fix embarrassing typo/word omission.]