Lawprof Letter Against Roberts:
Over at The Yin Blog, lawprof Tung Yin takes a critical look at the recent letter signed by 160 law professors opposing the nomination of John Roberts. An excerpt:
The weakness of the letter, as I see it, is that it fails the basic lesson of writing: "show, don't tell." The letter tells us that Judge Roberts does not deserve to be on the Supreme Court because the letter writer does not like Roberts' views of the right to an abortion or of the scope of the Commerce Clause or other areas of con law. What the letter does not do is show us that Roberts' views are intellectually flawed, deceptive, or otherwise objectionable on any basis other than outcome.Thanks to Michael Cernovich for the link.
While I do not agree with it, I believe we will be hearing many of the points it makes from the Minority Senators. It is well written skillfully done. I believe he makes as much as possible from the positions expressed in various memos Judge Roberts has written as a young lawyer.
It would be good to get on top of this over the weekend to break it down and get a good counter. Let the battle begin.
Resumes are neither here nor there.
(*) Let's not euphemize about "privacy," since there's no constituency out there to ban contraception.
I agree that any justice who ignores the rights to privacy should be under close scrutiny (at best). However, I disagree with the notion that abortion fits under the rights to privacy. As to gay marriage and other issues, let them be settled as they may, although I think that the whole problem with gay marriage is just a matter of definition. Far from trivial, but that's where the crux of the matter is.
Maybe there should be a right to abortion or privacy in the constitution. But there sure as heck isn't one there as amended to date. As Mr. Justice Black wrote, dissenting in Griswold: Like Black, "I cannot consider the Bill of Rights to be an outworn 18th Century 'strait jacket'", and I agree with his judgement that: I do not much like this mindset which makes the constitution the swiss-army knife of a Juduciary recast as a legion of fixer-uppers, out to right every wrong, make just every injustice just; in Dahlia Lithwick's phrase, "a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound". There seems to be a general feeling among such people that if the bill of rights does not protect everything, it is worthless and useless. The rights that it protects, as Mr. Justice Black noted, are important rights. Those which it does not are matters for each state to decide. While there is some fairly good originalist literature suggesting why some or more fundamental rights may be protected by the ninth amendment (Barnett, Droddy etc.), I'm not convinced.
Sorry, but since then, this lawyer has never had much respect for law professors as a group. Some individuals, yes, but when they all get together, they pander to the most leftward common denominator of their group and the result is almost always asinine.
I am not a member of the academy, so maybe some of these names are better known that I realize within the academy, but the only one I recognized was Erwin Chemerinsky. Where are the other leading names affiliated with the Democratic Party, such as Tribe, Sunstein, Estrich, etc.? Not to mention the professors without obvious leanings toward the left?
Seems to me that the letter will just be seen as a group of very liberal professors stating that they would prefer a more liberal judge. Shocking! Will it have any impact on moderate Republicans (or even moderate Democrats) whose votes might be swayed? Doubtful.
I'm sure you could have found 160 professors from Pepperdine and the like to write a counterpart letter opposing the nomination of Ruth Ginsburg. Does anyone believe it would have made any difference? To make a difference with Roberts, you would need opposition from lots of professors who are nationally well-known and/or from prominent law schools *and* regarded as politically neutral or to the right. I haven't seen it.
Those who say that the right to privacy ought to be a litmus test, why not also make the right to property a litmus test? How about a right to make one's living as one sees fit? Breyer and Ginsburg would fail instantly on those grounds.
I think that those rights are as vital, especially in the context of American political thought, as the right to privacy is. Why not also make knowledge of basic vocabulary a prerequisite? Somehow, Justice Jackson of "neither commerce nor interstate is necessary for something to be interstate commerce"-fame got on the Court.
Look, everyone picks out their favorite hobby-horse to pound the other side over the head with. Chemerinsky likes privacy but hates property. Scalia likes property but hates privacy. Who cares?
"Even the most ardent proponents of the "rigth to privacy" don't pretend that the right is TEXTUAL, my friend. "
Actually, this is completely wrong. You seemed to be confusing two things: (1) what people think and (2) their litigation/political strategy. The ACLU and their friends don't argue about P&I Clause and the 9th Amendment because they know the usually-convservative Supreme Court wouldn't go near those clauses...and the lower courts would be even more reluctant. But most "ardent supporters" of privacy rights do recognize that the Constitution's text protects privacy. And in any event, the fact that some of them don't rely on the text doesn't mean they couldn't, so I'm not sure what you're trying to argue.
As for "penumbras," nobody argues about penumbras anymore, though conservatives love to pretend they do. Liberals make arguments about privacy as being a "liberty" textually protected by the due process clause. I know the flaws in that argument, so you don't need to tell me them. But liberals only make the flawed arguments because the Supreme Court, by butchering the P&I clause and ignoring the 9th amendment, has left them no choice.
Finally, you might not like the "nebulous" concept of right to privacy, but you have to admit that the words "privileges and immunities" are pretty nebulous themselves. Are we just going to ignore the text when we need it difficult to interpret?
I can't get on board for the suggestion that the ninth amendment creates a resevoir of justiciable rights, to be determined as the Justices see fit. As mentioned above, I've read materials that try to make an originalist case for it, I've read materials which make a living constitution case for it; and although I'll grant you that it's less prima facie preposterous to use the ninth amendment as a resevoir than, for example, the due process clause, I'm not convinced. The ninth and tenth amendments both explicate the federal structure, confirming that those rights and powers which have not been surrendered remained unchanged. Specifically, the ninth amendment declares that the bill of rights is not a complete list of the rights of the people, but rather, a list of the rights protected from the federal government's actions. All other rights are reserved to the people, save those which they might at various times choose to surrender to their state governments via state constitutions. This provision is perfectly meaningfull and important, even if it doesn't support the weight of a resevoir of unenumerated rights, which I simply don't believe it does.
Read the text. Look at the context of the time. Look at what the framers were concerned about. The Federalist argument was basically that enumerating some rights might lead to a construction that said that all that wasn't reserved is given, which is the opposite of the constitution's design, in which all that is not given is reserved. The ninth amendment says, in effect, "the following list is not an exhaustive list of all the rights of the people, but rather, those rights which are deemed so fundamental to the concept of ordered liberty that they must be protected here". Within this paradigm, "disparaging" the other rights does not mean denying that those rights are justiciable, but rather, disparaging them would mean claiming that the bill of rights was an exhaustive list of the rights of the people. Which sounds absurd to our modern ears, but when you look at the context of the time, when you look at the ratification debates that surrounded the overall schema of the Constituion, the purpose of the ninth and tenth amendment snap into sharp focus. They are federalism provisions. And not, as is commonly written, "mere federalism provisions"; I hate that phrase, because it suggests that somehow federalism provisions are incidental to the constitution; they are not, the federal structure and how the federal government related to the states and to the people was THE issue surrounding the constitution at the time of ratification, as I read the history.
Incidentally, for your version to ring true, the State legislatures would have had to sign off on a text that allowed their actions to be reviewed and nullified by federal courts on the basis of no actual text in the constitution. These folks were already concerned that the federal power went too far in terms of what it DID enumerate - are we really to believe that they either blithely said "okay, the Federal judiciary can abrogate our actions to comport with the evolving standards of decency", or alternatively, that every single state legislature just completely misunderstood what the ninth amendment would do? This seems a little hard to believe. I've not seen ANY evidence that even the most devout anti-federalist raised such an objection against the ninth amendment, which is pretty good evidence that the original understanding of the ninth amendment was pretty similar to what I've outlined above. See generally, Thomas McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L. Rev. 1215.
Don't have time to go into this anymore, sorry, but yes, I understand your arguments now. My only response, for now, is to note that even if the 9th Amend. once meaned what you say, subsequent constitutional amendments have completely transformed the constiuttion's concept of "rights." The 9th amendment -- whose plain text tells us to look elsewhere in the constitution to know what it's talking about -- has thus likewise been transformed.
Plus, I'd agree with Akhil Amar that the P&I clause covers everything the 9th could cover, so in some sense the debate over the 9th amend doesn't matter.