Friday, October 26, 2007

Rupert Murdoch and Media "Localism, Diversity, and Competition":

Jack Shafer (Slate) opines on the subject, and I think gets it quite right.

Property Law and Belief in Ghosts:

In my introductory Property law class, I recently taught Stambovsky v. Ackley, the famous 1991 New York appellate decision which ruled that the seller of a home had a legal duty to reveal to the buyer the fact that the house was widely believed to be haunted by ghosts. The court famously opined that the house was "haunted as a matter of law," though the more prosaic basis for the decision was the fact that a reputation for being haunted could damage the resale value of the house even if there weren't really any ghosts there.

Interestingly, a recent AP survey reveals that 34% of Americans believe in ghosts and 23% claim to have actually seen one. A 2006 poll found that 37 percent believe that a location can be haunted.

Arguably, these poll results strengthen the case for the court's ruling in Stambovsky. If belief in ghosts and hauntings is widespread, a reputation for being haunted could seriously depress a home's value, and potential buyers have a legitimate interest in knowing about it before deciding to purchase. On the other hand, the poll results probably overstate the number of people who actually take ghosts seriously, in the sense of letting their belief in ghosts dictate major life decisions (such as what house to buy). As I discuss in greater detail here, people often adopt irrational beliefs when there is little or no cost to doing so. But they are less likely to follow those beliefs when the costs rise. For example, some 50% of Americans believe that we are being visited by UFOs flown by extraterrestrials. But only a tiny minority act on that belief by seriously preparing for the possiblity of alien visitation or invasion.

Anonymous Complaints:

Stanley Kurtz (National Review Online's The Corner) writes:

East Germany Hits Virginia

I’ve heard of speech codes, but I’ve never heard of anything quite like this: a mechanism to anonymously report "bias related to race, gender, sexual orientation, religion, or other protected conditions" to the university administration, for possible action against the perpetrator. This system has been set up at William and Mary, and a website protesting it can be found here. Is this something new, or at least rare, or is it perhaps more common than I realize?

InstaPundit seems to echo this concern, as have some readers who have e-mailed me.

It seems to me that these concerns are somewhat overstated, at least absent more facts about how the system is being used. Let me briefly explain why.

1. The College is certainly free to punish biased conduct, such as beatings or vandalism, and even a narrow zone of speech, such as threats. In fact, it should punish such behavior, though I'm not one of those who thinks that bias-motivated beatings, vandalism, or threats should generally be punished more than other beatings, vandalism, and threats. What's more, the College's Web page acknowledges that "because the expression of an idea or point of view may be offensive or inflammatory to some, it is not necessarily a bias-related incident. William and Mary values freedom of expression and the open exchange of ideas and, in particular, the expression of controversial ideas and differing views that is a vital part of civil discourse."

2. The Web page does go on to say, "While this value of openness protects controversial ideas, it does not protect harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." This leaves open the possibility that the College will punish protected speech as "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities"; but it also leaves open the possibility that only unprotected speech (such as threats) would be covered.

On first reading, the statement of rights and responsibilities didn't strike me as particularly troubling — the most clearly relevant responsibility there seems to be the duty to obey "the general law," which I take it means no vandalism, assault, threats, and the like. If William & Mary starts punishing protected speech, then it should be condemned for that. And, more broadly, I would condemn it for not being more precise about what exactly constitutes, in its view, punishment "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." But on balance the College's Web page and the statement of rights and responsibilities — which do provide pretty broad and specifically worded assurances of speech protection — don't seem extremely troubling.

3. This then gets us to what seems to have triggered the "East Germany" reference: The encouragement of anonymous complaints. I know many of my friends are very troubled by such complaints, and I can see their possible costs. But they also have substantial benefits, and I would not roundly condemn institutions that encourage them, at least until I see the institutions misusing them.

In fact, we almost always allow and often encourage confidential reporting of alleged misconduct — poor performance by a company's or government agency's employees, street crime, corporate crime, and so on. We do this because we realize that without the promise of anonymity, people will often be chilled from speaking about misconduct.

Of course if a school or a police department acts badly based on an anonymous complaint — restricts speech, or punishes someone based on the anonymous allegations — then that's bad. But anonymous tips are often useful for investigation, even if they can't be used in the actual adjudication.

Say, for instance that a student (1) sees evidence that a classmate is cheating, (2) hears a professor say in class "If you express an anti-abortion view on the exam, you'll get an F," or (3) hears some acquaintances brag about how they've beaten up a gay student (or, if you prefer, a Muslim student, a white student, and so on). In any of these cases, the student might well want to alert the authorities without revealing his name, and opening himself up to retaliation. And the anonymous tip may well lead to the discovery of credible evidence (whether tangible evidence or nonanonymous testimony).

It seems to me we should indeed allow and even encourage such anonymous tips, while of course remaining suitably skeptical about such tips, insisting that actual punishment not turn on such tips, and insisting that protected speech (as opposed to violence, vandalism, or threats) not be punished at all, whether based on anonymous tips or on nonanonymous ones.

UPDATE: A bit of further looking led me to a page that might be occasion for more worry:

What is Bias?

A "bias incident" consists of harassment, intimidation or other hostile behavior that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status. A bias incident may be verbal (whether spoken or written) or physical.

If you are not certain whether an occurrence meets the above definition, please report the occurrence under this protocol and allow the College to make the determination.

If you wish to report an incident of bias, you may do so by contacting the Chair of the Bias Reporting Team. Please, if this is an emergency, contact Campus Police at 911.

Certainly some of this "hostile behavior" is properly punishable (e.g., a physical attack or a threat), some is constitutionally protected (e.g., among many other examples, "hostile behavior" in the form of statements condemning the target's religion, political affiliation, sexual orientation, or veteran status), and some may be occasion for further investigation though not itself actionable (e.g., hostile statements that might suggest that the speaker has in the past engaged in other violence or vandalism, and that should lead the College to look further at whether the speaker has indeed done so). And the statements break down into these three categories regardless of whether or not they are submitted confidentially.

The question is what the College will do with the reports: Will it punish just the constitutionally unprotected behavior, or will it try to punish the constitutionally protected speech as well? As I noted above, the College should be faulted for not being more precise in its definitions. But the East Germany comparisons, it seems to me, should wait until there's more tangible evidence that the College is indeed punishing, or even attempting to punish, protected speech.

Genarlow Wilson's 10-Year Prison Sentence Set Aside as Cruel and Unusual Punishment:

Here's the Georgia Supreme Court decision, which is 4-3. The bottom line:

[W]e conclude that the habeas court properly ruled that Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment.

I'll have more when I finish reading the case. Thanks to Aeon Skoble (HNN) for the pointer.

UPDATE: As promised, here's more (some paragraph breaks added):

Legislative enactments are the clearest and best evidence of a society’s evolving standard of decency and of how contemporary society views a particular punishment. In determining whether a sentence set by the legislature is cruel and unusual, this Court has cited with approval Justice Kennedy’s concurrence in Harmelin v. Michigan. Under Justice Kennedy’s concurrence in Harmelin, as further developed in Ewing v. California, in order to determine if a sentence is grossly disproportionate, a court must first examine the "gravity of the offense compared to the harshness of the penalty" and determine whether a threshold inference of gross disproportionality is raised.

In making this determination, courts must bear in mind the primacy of the legislature in setting punishment and seek to determine whether the sentence furthers a "legitimate penological goal" considering the offense and the offender in question. If a sentence does not further a legitimate penological goal, it does not "reflect[] a rational legislative judgment, entitled to deference," and a threshold showing of disproportionality has been made. If this threshold analysis reveals an inference of gross disproportionality, a court must proceed to the second step and determine whether the initial judgment of disproportionality is confirmed by a comparison of the defendant’s sentence to sentences imposed for other crimes within the jurisdiction and for the same crime in other jurisdictions....

Here, the legislature has recently amended § 16-6-4 to substitute misdemeanor punishment for Wilson’s conduct in place of the felony punishment of a minimum of ten years in prison (with the maximum being 30 years in prison) with no possibility of probation or parole. Moreover, the legislature has relieved such teenage offenders from registering as a sex offender. It is beyond dispute that these changes represent a seismic shift in the legislature’s view of the gravity of oral sex between two willing teenage participants. Acknowledging ... that no one has a better sense of the evolving standards of decency in this State than our elected representatives, we conclude that the amendments to § 16-6-4 and § 42-1-12 [the sex offender registration statute] reflect a decision by the people of this State that the severe felony punishment and sex offender registration imposed on Wilson make no measurable contribution to acceptable goals of punishment.

[Footnote: Although the dissent correctly notes that the General Assembly stated that the 2006 Amendment to § 16-6-4 should not be applied retroactively, the dissent erroneously concludes that the cruel and unusual punishment analysis ends there.... [C]ruel and unusual punishment is an evolving constitutional standard and ... the most objective evidence of that evolving standard are legislative enactments.... Thus, although this Court cannot apply the 2006 Amendment to § 16-6-4 retroactively, we can rely on that amendment as a factor representative of the evolving standard regarding the appropriate punishment for oral sex between teenagers.]

Stated in the language of Ewing and Harmelin, our legislature compared the gravity of the offense of teenagers who engage in oral sex but are within four years of age of each other and determined that a minimum ten-year sentence is grossly disproportionate for that crime. This conclusion appears to be a recognition by our General Assembly that teenagers are engaging in oral sex in large numbers; that teenagers should not be classified among the worst offenders because they do not have the maturity to appreciate the consequences of irresponsible sexual conduct and are readily subject to peer pressure; and that teenage sexual conduct does not usually involve violence and represents a significantly more benign situation than that of adults preying on children for sex....

[B]ased on the significance of the sea change in the General Assembly’s view of the appropriate punishment for teenage oral sex, we could comfortably conclude that Wilson’s punishment, as a matter of law, is grossly disproportionate to his crime without undertaking the further comparisons outlined in Harmelin and Ewing. However, we nevertheless will undertake those comparisons to complete our analysis.

A comparison of Wilson’s sentence with sentences for other crimes in this State buttresses the threshold inference of gross disproportionality. For example, a defendant who gets in a heated argument and shoving match with someone, walks away to retrieve a weapon, returns minutes later with a gun, and intentionally shoots and kills the person may be convicted of voluntary manslaughter and sentenced to as little as one year in prison. A person who plays Russian Roulette with a loaded handgun and causes the death of another person by shooting him or her with the loaded weapon may be convicted of involuntary manslaughter and receive a sentence of as little as one year in prison and no more than ten years. A person who intentionally shoots someone with the intent to kill, but fails in his aim such that the victim survives, may be convicted of aggravated assault and receive as little as one year in prison. A person who maliciously burns a neighbor’s child in hot water, causing the child to lose use of a member of his or her body, may be convicted of aggravated battery and receive a sentence of as little as one year in prison. Finally, at the time Wilson committed his offense, a fifty-year-old man who fondled a five-year-old girl for his sexual gratification could receive as little as five years in prison, and a person who beat, choked, and forcibly raped a woman against her will could be sentenced to ten years in prison.

There can be no legitimate dispute that the foregoing crimes are far more serious and disruptive of the social order than a teenager receiving oral sex from another willing teenager. The fact that these more culpable offenders may receive a significantly smaller or similar sentence buttresses our initial judgment that Wilson’s sentence is grossly disproportionate to his crime. Finally, we compare Wilson’s sentence to sentences imposed in other states for the same conduct. A review of other jurisdictions reveals that most states either would not punish Wilson’s conduct at all or would, like Georgia now, punish it as a misdemeanor. Although some states retain a felony designation for Wilson’s conduct, we have found no state that imposes a minimum punishment of ten years in prison with no possibility of probation or parole, such as that provided for by former § 16-6-4. This review thus also reinforces our initial judgment of gross disproportionality between Wilson’s crime and his sentence.

The dissent indeed relies, as the footnote suggests, chiefly on the fact that the legislature decided that the 2006 Amendments to § 16-6-4 shouldn’t be applied retroactively. It also generally relies on the deference due legislative judgments about sentences, and on Widner v. State, a 2006 Georgia Supreme Court case that the majority distinguishes. (I won’t get into that debate; if you’re interested, read Widner and the Wilson opinions’ discussion of Widner.)

My sense of the matter: I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment. But the Supreme Court has said that such evaluation should take place, though with a great deal of deference to the legislature. And if there is to be such an evaluation, this would look like an excellent case for setting the sentence aside, for the reasons the majority mentions.

The Georgia Legislature has decided that consensual oral sex between 17- and 15-year-olds is not a very serious transgression. (It had decided the same about genital sex years before.) That has to be the implicit judgment behind making it a misdemeanor, and the nonretroactivity provision doesn’t undermine this implicit judgment. This judgment, coupled with the comparisons with other crimes and with the behavior of other jurisdictions — and the absence of statutory aggravating factors, such as the past convictions at issue in the California Three Strikes law, which the Court has upheld — provides strong and objective evidence in favor of the Georgia Supreme Court’s conclusion.

I should say that I at first thought there was no Cruel and Unusual Punishment Clause issue here, but the Georgia Supreme Court’s analysis has persuaded me.

Finally, for those who wonder about the racial dimensions of the case, note that the four white Justices on the Georgia Supreme Court split 2-2, and the three black Justices split 2-1 in Wilson’s favor — no stark racial disparity here (though, as I noted earlier, there was "little reason to assume that there’s much of a racial dimension here" even before this decision).

Related Posts (on one page):

  1. Genarlow Wilson's 10-Year Prison Sentence Set Aside as Cruel and Unusual Punishment:
  2. Sex and Liberty:
  3. Race and the Wilson Case:
  4. Ten Years in Prison for 17-Year-Old Who Had Consensual Oral Sex with 15-Year-Old:
Colbert's Campaign -- The Climax

From the Skeptic's Eye:

Scene 12:

Camera pans across hearing room, as Stephen Colbert takes his seat at a witness table, reporters scurry as we hear a gavel.

LENHARD: Please, please everybody come to order. Mr. Colbert, you understand the allegations made about the funding of your candidacy. We here at the FEC want to know why we should turn a blind eye to the immense aggregations of wealth of Comedy Central . . . indeed of Viacom. In truthi . . .

COLBERT (shouting): Truthiness? You can't HANDLE the truthiness!


Thursday, October 25, 2007

More Proof That You Just Can't Trust the MSM: The AP reports:
  Al-Qaida sympathizers have unleashed a torrent of anger against Al-Jazeera television, accusing it of misrepresenting Osama bin Laden's latest audiotape by airing excerpts in which he criticizes mistakes by insurgents in Iraq.
  Users of a leading Islamic militant Web forum posted thousands of insults against the pan-Arab station for focusing on excerpts in which bin Laden criticizes insurgents, including his followers.. . .
  "God fight Al-Jazeera," railed one militant Web poster, calling the station a "collaborator with the Crusaders" for suggesting the tape showed weakness in al-Qaida and featuring discussions of how the tape reflected weaknesses and divisions among insurgents in Iraq.
Federal Judge Who Sexually Harassed Employee Is Being Moved to Houston:

The Houston Chronicle reports:

An order issued today by an executive session of judges from the U.S. Southern District of Texas calls for U.S. District Judge Samuel Kent to move from Galveston, where he was the only federal judge, to Houston....

The order issued today redistributes Kent's Galveston cases among other Houston judges. The order did not say when, if ever, Kent would return to Galveston. David Bradley, chief deputy clerk for the Southern District, said Kent would remain in Houston until a new order was issued allowing him to return to Galveston.

Federal judges will continue to hear cases in the Galveston court room, but they will commute from Houston.

More on the Judge Kent matter in these posts.

Campaign Finance Rules in Student Government:

George Will condemns the Ninth Circuit's decision in Flint v. Dennison:

Perhaps the [University of Montana] noticed the praise that speech rationers in Washington receive when, in the name of combating corruption or the appearance thereof, they regulate, as with the McCain-Feingold campaign finance law, the timing, quantity and content of political speech. In any case, the university has a rule that limits candidates for student government offices to spending a maximum of $100 when campaigning among the university's 10,000 students....

[T]he reliably liberal and frequently reversed U.S. Court of Appeals for the 9th Circuit ... ruled against [a student who was challenging the rule], arguing that the university's limits on political speech are reasonably related to two permissible institutional objectives — providing "student candidates a valuable educational experience" and maintaining the election process "as an educational tool, rather than an ordinary political exercise." Two things were unexplained: What is the nifty educational value of an election process that is not an ordinary political process? And: How does severely limiting political speech serve "a valuable educational experience"?

Anyway, last summer the Supreme Court, while upholding the right of a high school to restrict speech advocating the use of illegal drugs, stressed that students' rights are greatest with respect to political speech and ideological speech. And Justice Sam Alito, joined by Justice Anthony Kennedy, stressed that the ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue."

Courts have spun a complex tangle of law distinguishing degrees of permissible regulation of speech depending on which kind of "forum" it occurs in — a "limited public forum," a "designated public forum," even a "metaphysical" forum (it is not physical). In this case, the forum is neither mysterious nor small nor the university's property: The $100 limit covered an individual's political advocacy not just on campus but on public sidewalks and streets throughout Missoula, where many students live.

If the Supreme Court takes [the student's] appeal [which is the news hook for the op-ed -EV], it will see that the University of Montana is indeed teaching students a lesson about politics — the pernicious lesson that politics should be conducted under tight restrictions on advocacy. The university is preventing students from learning such essential civic skills as how to raise and allocate political money for advertising and organizing. Thus do the grossly anti-constitutional premises of McCain-Feingold seep through society, poisoning the practice of democracy at all levels.

Will's argument strikes me as unsound, for reasons I mentioned when the case came out. The Ninth Circuit was right to hold that, because student government and student elections are university functions — whether or not the campaign posters are put up outside the university, the election itself is a university function — they should be treated as limited fora. The test is therefore viewpoint-neutrality (clear here) plus reasonableness, and the rules are reasonable, for the reasons the court gives:

The evidence before us clearly shows that the University views the spending limitation as vital to maintain the character of ASUM and its election process as an educational tool, rather than an ordinary political exercise....

We find that the spending limits reasonably serve this pedagogical aim. ASUM exists to teach students responsible leadership and behavior. Imposing limits on candidate spending requires student candidates to focus on desirable qualities such as the art of persuasion, public speaking, and answering questions face-to-face with one’s potential constituents. Students are forced to campaign personally, wearing out their [shoe]-leather rather than wearing out a parent’s — or an activist organization’s — pocketbook. Our conclusion is supported by the declaration of Gale Price, former ASUM President:

Unlimited spending in ASUM elections also would change the nature of the election process as a learning experience. The spending limits mean that students have to figure out no-cost or low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than just dumping a lot of money into advertising materials at the last minute. They have to make decisions about allocating their resources effectively. Without spending limits, the well-off students would not have to face these constraints or make these kinds of decisions in the course of running for ASUM.

Will's mistake, I think, lies in treating student government as tantamount to ordinary government for First Amendment purposes. In fact, a university may indeed treat student government and student government campaigns as an educational project, and may constrain students' activities within educational projects in order to make such projects fairer, or more focused on those skills that the university is trying to teach. A law school may set up a moot court program that limits the time students spend drafting or researching, or that limits outside research students may do for their briefs. A university-run debate contest may limit the debaters' ability to lobby the audience outside the context of the debate, so the debaters focus more on their in-debate performance. Likewise, a university-run election campaign may be aimed at teaching students campaign skills that involve less money rather than teaching campaign skills that involve more money.

In all these situations, the students should of course remain free to persuade classmates of whatever they please. But if they are to take part in a university-run contest, the university may properly insist that they follow the university's viewpoint-neutral rules or be ejected from the contest. Where true self-government is involved, the government may be highly limited in what speech-restrictive rules it may impose. But the First Amendment doesn't command a similar rule for educational projects, even ones that take the form of student government.

Incidentally, the author of the unanimous opinion from what Will calls the "reliably liberal" Ninth Circuit was Judge Carlos Bea, who's a quite conservative George W. Bush appointee. The other judges were Clinton appointees (Graber and Paez), but Judge Bea went along fully with them, and wrote the opinion.

Daryl Levinson on the Market for Law Professors: The Harvard Law Record has a very interesting report on remarks Harvard lawprof Daryl Levinson recently gave to Harvard law students about how to become a law professor. I thought this comment was particularly amusing if it was reported accurately:
[P]ractical legal experience is not a good predictor of scholarly ability, and, Levinson noted, "is pretty nearly disqualifying." Levinson pointed out that today's younger professors have no significant practical experience, and that if they tried to become involved in the world, "the world would probably recoil in horror."
Also note the Q&A at the bottom of the story; Levinson makes a number of worthwhile points.

  UPDATE: Professor Levinson writes in with a clarification:
For what it’s worth, the Record’s summary is a bit misleading. The quote they used was taken from my parodic description of hiring trends at HLS in particular—where it is true that most (though not all) of the entry-levels hired over the past few years are PhDs without significant practice experience. This was in the broader context of my describing the general trend in legal academia away from the profession and towards the academy, and the concomitant decline in the number of entry-level hires who come with high-level practice experience (i.e., more than a few years in practice)—obviously not to zero. I actually expressed some doubt about whether this trend has been good for legal education. That’s certainly a point worth debating.
What if It Were Justice Scalia? -- A Response to Commenters: There were many interesting comments to my post on Justice Ginsburg and Legislative Independence. I responded to many of them in the comment thread late last night, but I wanted to add an additional response to the many who thought it was perfectly fine for Justice Ginsburg to use her dissent to try to get Congress to respond by enacting new legislation more to her liking. In particular, I want to switch the politics just to make sure we all have the same position of the merits.

  Commenters had four basic arguments for why Justice Ginsburg may have behaved properly. First, anyone can try to influence the legislative process, so it's okay for Justices to try to do this as well. Second, Justices are smart people "on the front lines" of the law, so it's good that they are generally interested in sharing their wisdom to improve it. Third, Justice Ginsburg's remarks should be read as really just making a comment on the state of the law, which is something that we generally find unobjectionable. Fourth, it is appropriate for a Justice to take extra steps to inform Congress that their will might have been thwarted, just to let them know so they can take corrective action.

  I responded to each of these arguments in depth in the comment thread, but I wanted to add one more thought experiment into the mix: What if the politics of the case had been reversed, and it was Justice Scalia who was engaging in this conduct instead of Justice Ginsburg?

  Let's imagine the year is 1987, and the Supreme Court is deciding a case that is somewhat similar to Ledbetter, Johnson v. Transportation Agency. In that case, the Santa Clara County government had enacted an affirmative action plan allowing the government to provide preferences/affirmative action for women in hiring. A man challenged the program on the ground that Congress has clearly and directly stated that " "It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex[.]" The Justices meet at conference and a majority vote to allow the program despite the plain meaning of the statute. Justice Brennan is the senior-most Justice in the majority, and he assigns himself the majority opinion.

  Now let's focus on the response of Justice Scalia, who thinks that Brennan's decision is a completely bogus and result-oriented interpretation of the statute. Congress's statute could not have been clearer, and the Court is defying Congress's will and trying to gut a very important law. So Scalia writes a blistering dissent explaining why the majority's interpretation of the law cannot be squared with what the law actually says. (And indeed, that is exactly what Justice Scalia did.)

  But let's say Justice Scalia decides to do more. Let's imagine that he decides that he wants to try to "propel" the legislature to pass a new law banning affirmative action in the workplace. He thinks carefully about how he can best use his opinion to try to get Congress to ban affirmative action, and he devises the following plan. First, he will explicitly suggest that Congress should consider banning affirmative action in response to the Court's decision, noting in his dissent that "the ball is now in Congress's court" after the majority thwarted its goals. Second, he will read his dissent from the bench to maximize press coverage and draw immediate attention to his cause.

  After the decision is handed down, Justice Scalia follows the Congressional response with interest. He publicly expresses his pleasure when Republicans in Congress introduce bills to ban affirmative action. "That is just what I contemplated when I wrote my dissent," he tells a sell-out crowd at the annual Federalist Society convention. But he then notes with apparent displeasure that Democratic leaders in the Senate have "clouded" the prospects of the bill by saying that they don't want to bring it to a floor vote.

 : I think this hypothetical is pretty much the same as what Justice Ginsburg is doing, just with the political valence reversed. So let's return to the defenses of Justice Ginsburg and see if they hold up with Justice Scalia in the hotseat instead. If Justice Scalia had in fact taken these steps in response to Brennan's opinion in Johnson, would we say that Justice Scalia is a smart guy "on the front lines" of the law, and that we are lucky to benefit from his experience and learning? Would we say that Scalia's behavior was perfectly okay because anyone can try to influence the legislative process? Would we interpret his efforts as being simply to "notify" Congress, just in case they missed the decision, or that he was simply expressing his view that affirmative action is a bad idea?

  These are questions for each reader to answer. But I suspect many readers inclined to defend Justice Ginsburg now would share my own view that the answers would be "no, no, no, and no." Such conduct from Justice Scalia would be simply outrageous. Scalia's job is to decide cases, not to try to use his official position to get Congress to pass laws that he likes. Granted, Justice Scalia is entitled to his own opinion as to whether affirmative action is good or bad. But I think it would be deeply troubling if he saw it as within his official role as a Justice to try to get Congress to pass a new law clearly banning affirmative action after he didn't have the votes to achieve that result in the Johnson case.

  So here's my question for commenters who defended Justice Ginburg's efforts: Do you have the same reaction to Justice Scalia's (hypothetical) efforts to get Congress to overrule Johnson? Or do you agree with me that such conduct would be quite troubling? If you support Justice Ginsburg but would oppose the hypothetical Scalia, what's the principled difference?
The Many Voices of Islam:

The Interfaith Association of Central Ohio "will host an educational forum in the atrium of the [Ohio] Statehouse [this coming Sunday] about "The Many Voices of Islam."

And it turns out that the panel will indeed represent some Islamic voices that some such panels try to downplay: One of the voices on the panel is that of Anisa Abd el Fattah, who has in the past year

  1. formally asked the Justice Department to "take the steps necessary to end" "hate speech" and "misleading and highly politicized information" from "Jewish organizations and activists" and "the 'Jewish lobby'" (steps that would, I take it, somehow use the Department's law enforcement authority);

  2. complained about "Jewish people rais[ing] a fuss" when others "say that Israel should be wiped off the map" (and about "Jewish people['s]" labeling those who make such arguments "anti-Semite[s]");

  3. defended "White nationalist" claims that they are "misrepresented by the media and made to appear as enemies of blacks and Jews, and others, when they simply want to preserve the white race, and its majority status"; and

  4. seemingly expressed support for White nationalists' "feel[ing] that Jewish supremacism threatens their existence."

I'm sure Abd el Fattah's voice doesn't speak for all Muslims, and I hope it doesn't even speak for a majority. Still, whether deliberately or not, the Interfaith Council does seem to be acknowledging that the many voices of Islam include those like Abd el Fattah's. I'd like to see from press coverage the extent to which the Council's platform ends up endorsing Abd el Fattah's perspective, rather than just making clear that it's out there.

Things Lawyers Argue About:

Does "engaging in a three-way sexual encounter with [a current client] and [the client's] girlfriend" count as having sex "with a current client" (a practice forbidden by state bar rules)?

From Office of Lawyer Regulation v. Inglimo, decided last week by the Wisconsin Supreme Court (paragraph break added):

¶57 The relevant language of SCR 20:1.8(k) is as follows:

(k)(1) ... (i) "Sexual relations" means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer.... (2) A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

¶58 The referee found that Attorney Inglimo engaged in sexual relations with L.K.'s girlfriend while she was doing the same with L.K. The OLR essentially argues that the word "with" in SCR 20:1.8(k)(2) connotes a temporal and spatial connection. According to the OLR, as long as the lawyer and the client are both participating in a sexual act at the same time in the same place, they are having sexual relations "with" each other....

¶59 On this issue, we concur with the referee's conclusion [that Inglimo did not violate the rule]. The definition of sexual relations in SCR 20:1.8(k)(1) connotes conduct directly between the lawyer and the client. When the definition refers to touching, the rule speaks of the lawyer intentionally touching the intimate parts of "a person," but the subsequent alternative definitional phrase uses the more definitive "the person" when referring to a situation in which the lawyer causes the touching to be done to him/her. In addition, to the extent that sexual intercourse also qualifies as "sexual relations" under the definition, such conduct is likewise done intentionally (i.e., not by accident).

Further, SCR 20:1.8(k)(2) prohibits a lawyer from having "sexual relations" "with a current client." Thus, the definitional language of SCR 20:1.8(k)(1) and the prohibition of SCR 20:1.8(k)(2) together clearly indicate that the prohibited "sexual relations," whether intercourse or touching, must be intentionally done between the lawyer and one particular person, namely the client.... [B]ecause it does not appear that the definitional elements of "sexual relations" have been satisfied, the simple term "with" in the prohibitional phrase in SCR 20:1.8(k)(2) cannot transform this situation into a violation of the rule.

Note that Mr. Inglimo was found guilty of a good deal of other misconduct, involving sex, drugs, and money, and was suspended from the practice of law for 3 years.

Law Review Write-On Competitions, from a Law Review Editor:

I'm not sure how representative these views are, and I can see a downside to following this advice. But my correspondent has fresher experience with grading papers than I have, so I thought the advice would be worth passing along:

You mention in the book already [my correspondent is talking about my Academic Legal Writing book] that if you think of more than one possible thesis, you should choose the more creative one. I think this is much more important than you make it seem. This year, our competition was about [a topic that implicated a circuit split].... Out of my alloted stack of 22 papers, about 18 of them took one side or the other (or some more complicated position) on the circuit split.

The other 4 papers had very different sorts of theses.... All of these topics [that the 4 papers focused on] were mentioned in the cases and supplementary materials, and there were enough sources to make a 7-page comment out of it, but the topics were not clearly indicated by the packet materials.

These papers were at a significant advantage. First, they got all the creativity points instantaneously, though for us this was only 2 points out of 45 total. More importantly, they put the grader in a good mood after the monotony of reading the same thesis elaborated over and over. And even more importantly, I hadn't been primed with the counterarguments already, so the papers probably got more points for thoroughness and convincingness of arguments than they would have if I'd seen 20 papers making various counterarguments.

I should note also that I followed this "ignore the circuit split" strategy when I took the competition last year, and it worked. (Though I was really nervous about making that choice at the time.)

Second, structure is critically important. Not only is it allocated more possible points than any category except analysis, it also helps the grader understand the analysis better and can therefore lead to more points in that category, too. If two papers raise exactly the same arguments and counterarguments, the one that is structured more clearly will almost certainly get more analysis points than the other, in addition to the extra structure points. Additionally, having clear structure when writing the paper can show you, as the author, which arguments don't quite work and help you make them better.

Nearly all of the papers I graded had exactly the following headings:
I. Facts
II. Analysis
III. Conclusion

This is basically no help at all. It doesn't tell me anything about what the argument is and where it's going. I understand that it might be tempting to forgo subheadings because of the major space constraints, but they are totally worth it.

Colbert Is Campaign Finance Scofflaw, and So Can You:

Stephen Colbert of Comedy Central's "Colbert Report" has announced he is running for President. Even though it one grand exercise in performance satire, could his campaign still be subject to the campaign finance laws? Specifically, does the continued production and airing of his show by Comedy Central run afoul of campaign finance restrictions? Alison Hayward investigates.

UPDATE: Rick Hasen adds his thoughts at the Election Law Blog.

Justice Ginsburg and Legislative Independence: Justice Ginsburg recently gave an address on the role of dissenting opinions that included a remarkable explanation for her dissent last Term in Ledbetter v. Goodyear Tire & Rubber. Ledbetter involved a statute regulating when discrimination claims must be filed; the Court ruled 5-4 that the lawsuit in that case was filed too late. Justice Ginsburg dissented, and she took the unusual step of reading her dissent from the bench.

  In her address, Justice Ginsburg explains that the purpose of her dissent was "to attract immediate public attention and to propel legislative change." She then explains how the other branches responded:
Several members of Congress responded within days after the Court's decision issued. A corrective measure passed the House on July 31, 2007. Senator Kennedy introduced a parallel bill, with 21 co-sponsors. The response was just what I contemplated when I wrote: "The ball is in Congress’ court . . . . to correct [the Supreme] Court’s parsimonious reading of Title VII." But the fate of the proposed legislation has been clouded. On July 27, the Administration announced that if the measure "were presented to the President, his senior advisors would recommend that he veto the bill."
  If I understand Justice Ginsburg correctly, she wrote a legal opinion at least in significant part to push a different branch of government to enact a law closer to her personal policy preferences. If I am reading her speech correctly, she appears to be pleased that Congress is following up on her efforts. She's watching the House and Senate, and the passage of a bill in the House and introduction in the Senate is just what she had in mind when she wrote her dissent and read it from the bench. But then she seems less-than-pleased that President Bush has "clouded" the prospects of the bill's passage by threatening a veto.

  I find this explanation troubling. It seems to me that a Justice's job in a statutory case is to say what the statute means and no more. If you dissent, then dissent. But trying to push Congress to enact a law that you like better isn't part of the job description.

  To be clear, it's not newsworthy that Supreme Court Justices have and are influenced by their personal policy preferences. That much is human nature. But Justice Ginsburg is not saying that her own views may color her view of what the law is. Nor is she simply acknowledging her personal view that it would be good for Congress to amend the law in a particular way (a position I tentatively share). Rather, she seems to believe that she has a legitimate interest in her capacity as a Supreme Court Justice to push co-equal branches of government to enact a new law that will be more to her personal liking.

  This view seems hard to square with Justice Ginsburg's frequent invocations of "judicial independence," the notion that legislators should leave the judging to the judges. Justice Ginsburg has frequently criticized legislators — particularly conservatives — who have tried to influence the federal courts by regulating its jurisdiction or closely scrutinizing appointees on political grounds. According to Justice Ginsburg, these efforts threaten the constitutional order because they involve legislative overreaching into the sphere of the judiciary. See generally Ruth Bader Ginsburg, Judicial Independence: The Situation of the U.S. Federal Judiciary, 85 Neb. L. Rev. 1, 7-13 (2006).

  But shouldn't this be a two-way street? If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly okay for her as a Supreme Court Justice to try to influence the outcomes of future legislation? I don't mean to be too harsh, but I do find her position quite puzzling. Some might argue that her view of her role really isn't surprising, and that we should expect Justice Ginsburg to try to influence Congress this way. But if that's true, doesn't it mean Justice Ginsburg's argument for judicial independence falls flat and that legislators are justified in trying to influence the decisions of the Court? I don't see how you can have it both ways.

Wednesday, October 24, 2007

Hey There Big Spender:

Is President George W. Bush the most spendthrift president in recent memory, if not all time? It sure seems that way. Discretionary federal spending has increased more rapidly under President George W. Bush than any other post-WWII president.

Take almost any yardstick and Bush generally exceeds the spending of his predecessors.

When adjusted for inflation, discretionary spending — or budget items that Congress and the president can control, including defense and domestic programs, but not entitlements such as Social Security and Medicare — shot up at an average annual rate of 5.3 percent during Bush’s first six years, [the Cato Institute's Steven] Slivinski calculates.

That tops the 4.6 percent annual rate Johnson logged during his 1963-69 presidency. By these standards, Ronald Reagan was a tightwad; discretionary spending grew by only 1.9 percent a year on his watch.

Discretionary spending went up in Bush's first term by 48.5 percent, not adjusted for inflation, more than twice as much as Bill Clinton did (21.6 percent) in two full terms, Slivinski reports.

Of course defense and homeland security account for a decent share of the increase, but spending rose elsewhere as well. And while Bush did seek some entitlement reform, he also pushed a new entitlement in the form of the prescription drug bill.

The President's defenders point to Congress' voracious appetite as the cause of the spending increase, but Congress could not spend this much alone. President Bush enabled Congress' fiscal excesses by refusing to veto ever-increasing spending bills — many of which were passed by a Republican Congress — while the administration simultaneously pushed for more federal spending on education, agriculture, and other items. Even if Bush gets veto-happy in his last 15 months in office, he'll still be remembered as a big-spending President — and rightly so.

"The Effect of Judicial Ideology in IP Cases":

Bill Patry (The Patry Copyright Blog) points to a very interesting article about this.

Supreme Court Decision on Whether To Hear Second Amendment Case May Come Nov. 13:

Lyle Denniston (SCOTUSblog) reports that the Court will consider the petition Nov. 9. That means it may announce the grant or denial of certiorari Nov. 13, though the Justices might delay it for a week or more in certain circumstances. "The case, if granted, would probably be heard in February or March."

UPDATE: Whoops, the link was wrong; fixed it, thanks to an anonymous commenter.

Whelan on Miles/Sunstein:

In today's Los Angeles Times, Ed Whelan critiques the Miles/Sunstein study examining "judicial activism" on the Supreme Court. First, Whelan objects to focusing on review of agency decisions, as opposed to rulings on the constitutionality of state or federal statutes, because only in the latter case is the result of a court decision effectively immune from revision through the democratic process (or even by additional administrative action). Whelan also thinks there are methodological probems with the Miles/Sunstein analysis:

They classify rulings as "restrained" or "activist" without regard to any qualitatitive assessment of whether the ruling is correct. They implicitly presume that the work product of federal bureaucrats is politically neutral. . . . If an agency shows a bias in a particular direction, a neutral judge's decisions overruling that agency's actions would of course show a pattern in the opposite direction. Thus, if federal agencies, captured by career bureaucrats, are prone to err in a liberal direction, the "Partisan Voting Award" that Miles and Sunstein would confer on Justice Thomas instead belongs to the agencies.

Miles' and Sunstein's statistics are also skewed by the fact that they cover the period from 1989 through 2005. Justices Ginsburg and Breyer were not on the court in the early years of that period, when the court was reviewing agency decisions from Republican administrations that account for about a third of the total cases. The relative partisanship that Miles and Sunstein find in Ginsburg's and Breyer's votes would surely have been much higher if Miles and Sunstein had used the same set of cases for all justices.

It seems to me that these critiques significantly undermine the force of the Miles/Sunstein analysis.

UPDATE: Patterico offers additional critiques of the Miles/Sunstein analysis here.

Chief Justice Roberts on Technology-Related Cases: According to the Deseret Morning News, Chief Justice Roberts recently responded to a question at Brigham Young University about areas of law likely to be important in the future by suggesting "that technology-related cases could be the most important area of law considered by the Supreme Court over the next quarter of a century."
  Emerging technologies can create new questions about old laws. For example, imaging technology exists that allows law enforcement officers to see through walls. "Is that an unlimited search and seizure?" Roberts asked.
  "People tend to be focused on what are the hot issues right now," he added. "Those are not the issues I think 25 years from now will be the ones people will look back on and say were significant."
  Justice Alito made a somewhat similar comment last year after judging a moot court that touched on how the Fourth Amendment applies to computer networks:
  What constitutes a "search and seizure" online is a critical law debate and is constantly reshaping the Fourth Amendment, he said.
  "Now we're entering this new virtual world," Alito said, "and we have to translate the precedents and principles we have dealing with physical grounds to the world of electronic communication."
Hat tip: Howard.
Measuring Ideological "Activism" in Supreme Court Justices' Decisions to Overrule Regulatory Agency Actions:

Cass Sunstein is a top-rank scholar, and I always learn a lot from his work, even when I think he is ultimately wrong. Unfortunately, however, I fear his recent study (coauthored with Thomas Miles) of judicial "activism" in Supreme Court justices' votes on cases reviewing federal regulatory agency decisions doesn't tell us as much about the subject as one might like. There are three major problems: the way they analyze agency decisions, the failure to consider the possibility that there are centrist ideologies as well as "liberal" and "conservative" ones, and their interpretation of Justice Stephen Breyer's record (the justice they claim is the most "restrained").

Essentially, Miles and Sunstein first code each agency decision as "liberal" or "conservative" (e.g. - a decision to reject an environmental group's claim that a regulation isn't broad enough is "conservative"), and then try to determine how "activist" each justice is by seeing how often they vote to overrule agency decisions. Lastly, they measure how ideologically "partisan" the justices are by determining how often each one voted to overrule "conservative" decisions versus "liberal" ones. Justice Kennedy comes out as the most ideologically "neutral" justice because he voted to overrule conservative agency decisions about as often as liberal ones, while Breyer comes out as the most "restrained" (because he was the least likely to vote to overrule agencies overall).

Here are my three reservations about this framework:

I. What about the Distribution of Agency Errors?

When the Supreme Court reviews agency actions, what they are trying to do is determine whether the agency erred in its interpretation of the federal statute that grants it the regulatory authority in question. Miles and Sunstein implicitly assume that agencies are equally likely to err in a conservative direction or a liberal one. Thus, if Justice Thomas votes to overrule liberal decisions far more often than conservative ones, that shows his ideological "partisanship" in a conservative direction. However, if agencies are more likely to err in a liberal direction than a conservative one - then perhaps his voting pattern simply reflects the distribution of agency errors, not Thomas' ideological biases. Maybe Thomas is the only one fully able to set aside his own biases and focus only on the "true" pattern of agency behavior. Miles and Sunstein's approach can't rule this possibility out. And the same goes for Justice Stevens' apparent tendency to overrule conservative decisions far more often than liberal ones; perhaps that's just a reflection of the agencies' pattern of errors (which may tilt more in a conservative direction), not Stevens' biases. I won't go into detail here, but there are many theories of agency behavior that posit that liberal errors are more common than conservative ones or vice versa.

II. What about Centrist Ideologies?

Miles and Sunstein's framework assumes that there are liberal and conservative ideological biases, but doesn't consider the possibility of centrist biases. Thus, Justice Kennedy is seen as ideologically "neutral" because he votes equally often to strike down liberal and conservative agency decisions. But let's assume for a moment that Kennedy is an ideological centrist, and all he cares about is enforcing that ideology against agency decisions that deviate "too much" from his centrist preferences. He's willing to overrule both deviations in a conservative direction and those that go in a liberal one. Commitment to imposing ideological centrism could explain Kennedy's voting record just as readily as ideological "neutrality." I don't myself know which of these explanations is accurate (perhaps neither is). But the Miles-Sunstein methodology can't distinguish between them.

III. The Special Case of Justice Breyer.

Miles and Sunstein praise Justice Breyer as "the champion of modesty and restraint" because he is the least likely to vote to strike down agency actions overall. Perhaps Breyer deserves this praise. However, it's important to remember that Breyer has a strong ideological commitment to regulatory agency autonomy. In various writings, such as his 1993 book Breaking the Vicious Circle, Breyer has argued that regulatory agencies staffed by expert bureaucrats should be given greater autonomy in order to insulate them from what he regards as harmful pressure from the democratic process. He also believes (for similar reasons) that they should to a large extent be insulated from judicial review. Breyer is a leading defender of the "rule of experts" theory of governance - at least when it comes to regulatory policy. This belief is no less an ideological commitment than is a commitment to conservatism, liberalism, or centrism.

Is Breyer's apparent reluctance to overrule regulatory agency actions driven by "modesty and restraint" or by his ideological commitment to governance by expert regulators relatively insulated from outside control? I honestly don't know the answer; quite possibly both factors are at work. Or maybe neither is. But Miles and Sunstein's methodology can't distinguish between the two.

Which Justice Is Most "Activist"?

University of Chicago law professors Thomas J. Miles and Cass Sunstein summarize their effort to determine which Supreme Court justice is most "activist." Rather than look at constitutional cases, or challenges to statutes, they looked at challenges to federal agency actions, judging a justice to be "activist" based upon how often he or she votes to overturn an agency decision. Here is how they describe their approach:

Everyone looks at the high-profile constitutional cases, but to get a real sense of how justices approach their jobs, it's best to analyze the more routine, less-visible cases that are often more important to people's daily lives.

For this reason, we examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the Environmental Protection Agency, the National Labor Relations Board, the Occupational Safety and Health Administration and the Food and Drug Administration.

We used clear and simple tests to code the decisions of these agencies as either "liberal" or "conservative." For example, we counted an environmental regulation as "liberal" if it was challenged by industry as too aggressive, or as "conservative" if it was challenged by an environmental group as too lax.

We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him "neutral," in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him "partisan." If a justice regularly voted in favor of agencies, we deemed him "restrained," because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him "activist," in the literal sense that he frequently used judicial power to strike down decisions of another branch.

Using this approach, they conclude the most "activist" member of the Court is Justice Scalia, and the most "restrained" is Justice Stephen Breyer. Turning to judicial ideology, they found Justice Thomas had the most "conservative" voting record (and was the most "partisan" or ideological), and Justice Stevens was the most "liberal." The least ideological, according to their methodology, was Justice Kennedy.

Miles and Sunstein note that their analysis says nothing about which hustices are "right" or "wrong." Rather, they were seeking to develop a neutral methodology for measuring one sort of judicial "activism" -- in this case rejecting the decisions of federal agencies. That said, without looking more carefully and their methodology and data set, in particular how they coded specific cases, it is difficult to evaluate their claims. (Time permitting, I'd love to dig into this, but the new baby and pending writing commitments may preclude it.) It is an interesting analysis nonetheless.

Leslie Southwick Has Been Confirmed by the Senate to a seat on the U.S. Court of Appeals for the Fifth Circuit. News story here.
[Hanah Metchis Volokh, guest-blogging, October 24, 2007 at 12:09pm] Trackbacks

What's the best inducement to clerking in Texas? The food. As an exile from the great state of Texas (a Texile?), I can honestly say that I miss the Tex-Mex food more than anything else. I have never found authentic Tex-Mex outside of Texas, and certainly not in the Northeast. And, as the linked article explains, it really is an authentic American cuisine, not a corrupt form of Mexican food. (Hat tip to another law school blogger from Texas, Divine Angst.)

Can We Make the Constitution More Democratic?

Recent years have seen a revival of proposals to reform the Constitution in order to make it more democratic. University of Texas law professor Sandy Levinson has recently published a prominent book on the subject, as has well-known political scientist and pundit Larry Sabato. In our contribution to a symposium on constitutional reform , William and Mary law professor Neal Devins and I raise some questions about both the desirability and feasibility of proposals to democratize the Constitution. Here's an excerpt from the abstract:

Recent years have seen renewed calls to revise the Constitution to make it more democratic. Unfortunately, efforts to “democratize” the Constitution face serious obstacles that advocates of reform have largely ignored. In particular, they have failed to grapple with the reality of widespread political ignorance, which both reduces the extent to which the Constitution can ever be fully democratic and makes the reform process more difficult.

Part I of this article notes that advocates of “democratizing” the Constitution rarely specify the theory of democratic participation they would like the Constitution to conform to. This is a very significant omission. There is more than one theory of participation and different theories have widely divergent implications for constitutional reform. Some theories such as “deliberative democracy,” imply a much higher level of political knowledge in the electorate than is likely to be feasible in the foreseeable future....

Part III considers the implications of political ignorance and substantive concerns for the actual process of constitutional change. Widespread ignorance is likely to reduce the quality of constitutional reforms that can be instituted, since it might lead voters to support deeply flawed institutional reforms and create opportunities for manipulation by political elites. These dangers are heightened by the reality that any major constitutional changes are likely to occur as a result of a major political or economic crisis....

Seeding the Stratosphere:

I am generally skeptical of geo-engineering proposals to counteract global warming. But I agree with the Carnegie Institution's Ken Caldeira that research into such proposals is worthwhile, just in case. As he frames the question: "Which is the more environmentally sensitive thing to do: let the Greenland ice sheet collapse and polar bears become extinct, or throw a little sulfate in the stratosphere? The second option is at least worth looking into."

NOTE: Post edited to correct Caldeira's affiliation.

[Hanah Metchis Volokh, guest-blogging, October 24, 2007 at 7:12am] Trackbacks
Statutory Qualifications

This is the second in a series of posts about my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers. In my last post, I discussed what I meant by "Two Appointments Clauses." This time, I move on to the second half of the title and explain what a "Statutory Qualification" is.

Both of the two appointments procedures are set up on a straightforward separation of powers principle: I'll cut the cake, and you choose which piece you want. That is, Congress creates the office, but someone else gets to choose who fills it. In procedure 1 (the Confirmation Appointments procedure), Congress creates the office and the President gets to try to fill it, but Congress must consent before the person can actually take office. In procedure 2 (the Vested Appointments procedure), Congress creates the office and the President, a department head, or a court (depending on who Congress chooses) gets to pick the person who fills the office without any more input from Congress.

So basically, for shorthand, we have Congress creating the office and the President hiring someone to fill it. (This avoids all the parentheticals of confirmation, appointers other than the President, and so forth, which will be important later but for now are essentially just embellishments.)

This leaves us with an important line-drawing question. Just what counts as "creating the office," and what counts as "hiring someone to fill it"? The gray area here is job qualifications.

Congress pretty frequently writes job qualifications for the officer into the statute establishing an office. A lot of these are pretty simple: This office must be filled by someone who is a U.S. citizen. This regional office must be filled by someone who is a resident of that region. This office must be filled by someone who is over 18 years old.

Other statutory job qualifications are more complex: This office must be filled by someone who speaks both English and Spanish. This office must be filled by someone who has a J.D. degree. This office must be filled by someone who has five years of emergency-management experience. This office must be filled by someone who has never represented a foreign nation in trade negotiations. This office must be filled by someone who scores higher than X on the civil service exam. This office must be filled by the person who receives the highest score on the civil service exam.

Can Congress do that? Or is this practice of creating statutory qualifications for federal officers an unconstitutional encroachment on the President's power to appoint officers? My answer is that it depends on the method by which the officer is appointed. If Congress has vested the appointment in the President, a department head, or a court, it can attach statutory qualifications. If the appointment is made through the President's nomination and Congress's advice and consent, statutory qualifications may not be imposed. In my next post, I'll begin explaining how the Constitution's text and structure lead to this result.

500,000 Forced to Flee Their Homes in California Due to Fires: The terrible story is here. I just hope everyone who has to flee makes it out safely.

Tuesday, October 23, 2007

Bush to veto ENDA?

A brief statement from the Office of Management and Budget released this afternoon says that Bush's advisors will recommend that he veto the Employment Non-Discrimination Act (ENDA), H.R. 3685, the first-ever federal bill that would protect gays from employment discrimination. The bill has not been voted on in the House; no action is scheduled yet in the Senate. The OMB statement cites a mix of policy and constitutional concerns.

A similar statement from Bush's advisors, also citing policy and constitutional concerns, was issued with respect to the Hate Crimes bill, which has not yet reached his desk.

Notably, the OMB statement on ENDA does not give, as a reason to veto, opposition in principle to an employment bill protecting gays from discrimination. Nor does the statement cite general libertarian qualms with anti-discrimination laws. The advisors instead give four reasons, which I react to briefly here:

(1) Religious freedom concerns. The religious freedom concern is very weak, given the unprecedentedly broad "religious organizations" exemption in the bill. See ENDA Sec. 3(a)(8) (definition of "religious organization") and Sec. 6 (exemption of religious organizations). The law does not unconstitutionally burden the right to free exercise of religion, as presently understood by the Court, since it applies generally to all covered entities whether or not they claim a religious objection to compliance.

(2) Sovereign immunity. Given the Court's very expansive, non-textual, and ahistorical present understanding of sovereign immunity and the Court's close limits on Congress' remedial and substantive power under Section 5 of the 14th Amendment, there may well be a constitutional problem with the section of the law that authorizes money damages in lawsuits against state governments. See ENDA Sec. 11. The rest of the law is perfectly constitutional and the bill contains a severability provision. ENDA Sec. 16. As we know, President Bush has no problem signing laws he believes are unconstitutional in part.

(3) Litigation arising from imprecise terms. "Perceived" sexual orientation, as used in ENDA Sec. 4(a)(1), does not seem especially imprecise to me, especially given that "sexual orientation" itself is given a narrow definition in ENDA Sec. 3(a)(9). The OMB statement does not explain why it might be troublingly imprecise. "Association," used in Sec. 4(e), likewise has meaning in federal statutory and constitutional law and the OMB does not explain why it is too vague here. There will be litigation around the edges of this law, as there always is, but the use of similar terms in the Americans with Disabilities Act has not produced voluminous litigation.

(4) "Sanctity" of marriage under federal law. Mention anything gay these days and the administration rushes to the defense of marriage. ENDA does not alter the federal definition of marriage as the union of one man and one woman given in the 1996 Defense of Marriage Act. ENDA also does not buttress same-sex marriage in the states. In fact, ENDA specifies in Sec. 8(b) that employers will not be required to treat an unmarried same-sex couple like a married couple for purposes of employee benefits. The implication, I suppose, is that an employer might be required to treat a married same-sex couple like a married opposite-sex couple for purposes of benefits since to do otherwise would amount to sexual-orientation discrimination. But I think the argument likely to be accepted by federal courts will be that "married" in this section refers to the federal definition of "marriage" under DOMA rather than to a state's own definition of marriage. The other reference to marriage in the bill, in Sec. 8(a)(3), simply prohibits an employer from using marriage as a proxy for sexual-orientation discrimination (but the bill otherwise prohibits disparate impact claims, see ENDA Sec. 4(g)). Neither of these sections referring to marriage alters the federal definition of marriage, requires a state to recognize same-sex marriages, or even requires an employer to treat an employee with a same-sex partner the same as an employee with an opposite-sex spouse.

The president's advisors now join an alliance of strange bedfellows, including religious-right groups like the anti-gay Americans for Truth, and gay-rights organizations like Lambda Legal, NGLTF, and more than 300 other gay/transgender organizations that are all trying to kill ENDA for their own reasons. The OMB statement makes it clear that even the stripped-down version of ENDA the House is considering, which was drafted to anticipate the sorts of concerns Bush's advisors are now raising, faces a steep climb. An even more expansive bill of the sort many gay-rights groups are insisting on would likely be a complete non-starter in both the Senate and the White House.

Whether Bush will actually veto the bill if it ever reaches his desk is unknown. The reasons given for a veto by OMB seem transparently thin, which suggests either that they're a sop to religious conservatives and that Bush may sign ENDA anyway or that they're a pretext for deep political concerns Congress simply won't be able to allay while Bush is president. It's still worth it for political reasons to pass a bill the President may well veto, just as it was politically advantageous (according to gay groups) to pass the seemingly doomed Hate Crimes bill. But a dose of cold realism about the law's prospects until at least 2009 has now been added to the mix.

UPDATE: Chris Crain offers some useful additional insights on the possibility of a Bush veto here.

Mukasey, Waterboarding, and Public Opinion: Marty Lederman has an interesting post at Balkinization about waterboarding, Michael Mukasey's testimony, and the reaction of Senate Democrats and Republicans to it. An excerpt:
The real explanation [for why Mukasey did not condemn waterboarding] lies in . . . Mukasey's revealing testimony that "there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial—I don't think it would be responsible of me to do that." Mukasey can't say that waterboarding is unlawful because OLC has already opined — several times over, apparently — that it's not, and CIA operatives have acted in reliance upon that advice. Mukasey understandably is reluctant to publicly accuse those for whom he is about to work of being war criminals.
  I haven't followed these issues closely, so I don't feel I have much informed to say about them, but did have one meta-level comment about the issue. As far as I can tell, the best poll on public attitudes towards torture generally is one provided by the Pew Research Center for the People & the Press. The question they ask is this: "Do you think the use of torture against suspected terrorists in order to gain important information can often be justified, sometimes be justified, rarely be justified, or never be justified?"

  Here's the latest set of results from about 10 months ago:
Never Justified: 29%
Rarely Justified: 25%
Sometimes Justified: 31%
Often Justified: 12%
Unsure: 3%
  I gather these results help explain why some politicians are not condemning techniques like waterboarding: Whether or not such techniques technically count as "torture," a significant majority of the public in the United States doesn't want a categorical ban on torture. Now just to be extra clear, I am not claiming and could not possibly claim that these poll results shed any light on the legality or the morality of any of these techniques nor whether they are better banned or permitted as a matter of policy. A public opinion poll is only a public opinion poll. But I think the poll numbers provide a helpful context to understand the public debate on the issue.

  A prospective note about comments: In my experience, this issue draws out more anger and frustration than any other issue within the usual range of blogging topics here at the VC. Despite that — or perhaps because of that — I think it's unusually important for commenters to be civil and respectful. To enforce that norm, I'll be unusually ready to delete comments that I think cross the line.

  UPDATE: My apologies for an earlier transcription error -- the "rarely justified" numbers in the poll are 25%, not 35%,
The McCarthey Era and Popular Culture:

In case you needed further evidence that the McCarthy era of popular culture bears little resemblance to the actual McCarthy era, I give you the following cartoonish view of the era, which, perhaps not surprisingly, comes from a recent comic book. Reed Richards of The Fantastic Four is telling Peter Parker the Amazing Spiderman about how failing to cooperate with HUAC ruined his Uncle Ted's career:

Uncle Ted was a writer. He found everyone interesting. He'd talk to strangers, wear the wrong colored socks, ate at strange little restaurants. My uncle Ted was eccentric. He was funny and colorful, and I loved him. But he was also stubborn, and didn't care for rules, and if you pushed him, he'd push back just as hard. Unfortunately, this is when Joe McCarthy and the House un-American activities committee was in full bloom looking for communists among the military, the government, and ... the arts. If you stood out, if you didn't conform, you had a better than even chance of being called before the committee. At my uncle Ted was all those things. So he was subpoenaed to appear before he lack and explain himself. To testify. To tell them he wasn't a communist, and to name the names of those who thought might be communists. [Uncle Ted told the committee to go to hell, was jailed for six months for contempt, and his life was ruined.]

Whatever one thinks about the McCarthy era, and some of my views (at least on the relevant First Amendment issues) can be found in this paper, you didn't get hauled before HUAC because you talked to strangers, wore the wrong colored socks, or ate at strange restaurants. And the idea that random nonconformists had a "better than even chance" of being called before HUAC is just laughable.

I understand this is "just a comic book," but serious Hollywood movies such Guilty By Supsicion and The Front also go astray in conveying the history of the era. Not to mention the grandaddy of all distortions, The Crucible, in which Arthur Miller manages to analogize witches (which didn't really exist) to American Communists who were loyal to the Soviet Union (who really did).

Aliens for Kucinich?: No, not those kinds of aliens; these kinds of aliens. Details here, via TPMElectionCentral.
Eminent Domain in Missouri:

Timothy Lee of the libertarian Show Me Institute think thank has written a compelling report on eminent domain abuse in Missouri. Lee notes that Missouri is one of a large number of states that passed ineffective "reform" laws in the wake of the Supreme Court's 2005 Kelo decision. As I discuss in this paper, the Missouri law is one of many that forbids the condemnation of private property in order to promote "economic development," but allows the same practice to continue under other names. In Missouri's case, this was accomplished by allowing the condemnation of "blighted" property under rules that permit virtually any area to be declared blighted if the local or state government want to get hold of the property.

I was also happy to see that Lee's report includes a discussion of the problems caused by blight condemnations in "truly" blighted areas; such takings are often used to displace poor residents in order to transfer the property to politically powerful interest groups. This issue has not gotten enough public attention in the post-Kelo debate over eminent domain. For my own thoughts on it, see my August 2006 article on the subject in the Legal Times, and the last section of my more detailed academic article on the post-Kelo debate over eminent domain.

UPDATE: Tim Sandefur of the Pacific Legal Foundation also has some thoughts on the Lee study and Missouri eminent domain. I do disagree somewhat with Tim's statement that Missouri "probably has the worst laws on eminent domain in the country." There are many worthy contenders for this dubious honor. But my personal nominee would be New York - the state where, among many other abuses, property in Times Square could be condemned as blighted (see my Legal Times article linked above).

Buffy, Vampires, and Property Rights:

Co-blogger Sasha says that he intends to write about "what Buffy has do with property rights" and "vampires and the law." I just want to point out that I have already contributed to the growing literature on these important issues myself.

Still, I am happy about Sasha's entry into the field. Welcome to the growing club of Russian immigrant law professors writing about property rights issues involving vampires and vampire slayers!

Related Posts (on one page):

  1. More about vampires:
  2. Buffy, Vampires, and Property Rights:
  3. Vampires and the law:
"Tearing Down ... Attorneys' Work":

Commenter DJR writes, apropos my criticism of the badly written Supreme Court brief:

I see that your (quasi-associated) firm hasn't filed an amicus brief (at least not as lead counsel) in this case. Even so, don't you find it at least a little bit in poor taste to be tearing down these attorneys' work in such a public way? It's one thing to disagree with the arguments or to think that they should have addressed matters more substantively. It's another thing entirely to make them look foolish on a widely read legal blog.

I'm puzzled by this position. It seems to me that when someone is in businesses offering goods or services to the public, it's perfectly proper to accurately criticize the quality of those goods or services. That's true whether the target is a large corporation or a team of four lawyers, and whether or not the critic is a fellow lawyer.

In fact, I'd think that such public criticism is on balance helpful. First, it might be educational for law students and young lawyers who read the blog — bad examples often are.

Second, it might remind some such law students and young lawyers that their work will be evaluated by outsiders, and might be criticized. This reminder could encourage such readers to be more careful themselves.

Third, to the extent the criticism does affect the reputation of the authors of the brief (which I doubt, since I doubt that many potential consumers of their services read this blog), it seems to me that this will help consumers: If I'm right that these lawyers filed a badly written brief, consumers will benefit from knowing the lawyers' weakness.

Naturally, if my criticism were substantively unfair, then it should be criticized for that; yet that doesn't seem to be the commenter's point. Likewise, perhaps it wouldn't be right for me to publicly criticize a law student's moot court brief, since the student is clearly just learning and should be cut some slack on those grounds.

But these lawyers are filing a brief in the highest court in the land, and representing a real criminal defendant. They are playing in the big leagues. If their play isn't up to what should be big league standards, it seems to me quite proper to publicly note that. Or am I mistaken?

What a Bad Supreme Court Brief:

I just finished reading Williams' brief in U.S. v. Williams, and it's pretty shoddy.

The brief has many substantive and structural problems: For instance, it keeps arguing that the child pornography pandering law is overbroad because the law lacks the proper mental state requirements; but the government argues, quite plausibly, that the law does include those mental state requirements, and the brief never adequately responds to the government's argument. More broadly, the brief spends a lot of time repeating platitudes that are surely familiar to the Justices and law clerks, and far too little time responding concretely to the government's concrete legal arguments.

But for now, let me just point to the less important but more obvious problems with the brief — the remarkably shoddy writing. I quoted the opening sentence of Part I of the Argument below, but here are some more examples:

The Section, as currently drafted, while appearing to one person to constitute an offer or solicitation to sell, buy or barter contraband –- whether true or false –- can appear to another person (listening to the same words of the speaker) to be an offer or solicitation to sell, buy, or barter something totally lawful and therefore, protected by the First Amendment....

Subsections (i) and (ii) of the PROTECT Act pandering provision capture what is clearly child pornography both before and after Free Speech Coalition was decided whether involving actual or virtual child pornography....

However, the Section, as written, addresses not only liability to the offered or solicited material but rather to the ideas and images communicated to the viewer by the representation of what those materials constitute, the First Amendment is necessarily implicated....

And while this Court tries “not to nullify more of a legislator’s work than is necessary, ... ” (Reagan v. Timer, Inc., 468 U.S. 641, 652 (1984)), when a statute is as overbroad and vague as the Section, and particularly where it affects First Amendment freedom, the more frustrating remedy is to simply let Congress re-write the statute rather than risk speech freedoms of millions of people across the country every day and then burden witnesses, law enforcement, prosecutors, judges, juries and higher courts with trying to sort out the mess created by the Section on a case by case basis....

There are many other such passages. As an editing exercise for a legal writing class, this brief would be excellent. As a brief in the Supreme Court, not so much.

Related Posts (on one page):

  1. What a Bad Supreme Court Brief:
  2. Not the Best Way of Putting It:
Not the Best Way of Putting It:

From a Supreme Court merits brief:

[The law] suppresses speech and beliefs that are protected by the First Amendment in an impermissible way.

Related Posts (on one page):

  1. What a Bad Supreme Court Brief:
  2. Not the Best Way of Putting It:
More on the Casebook Shooting:

From the Wall Street Journal law blog post on this matter, which Hanah linked to yesterday:

An Indiana Law 3L was arrested last week, accused of firing a rifle from his Bloomington apartment balcony....

What jumped out at the Law Blog were reports that he was apparently aiming his rifle at his Real Estate Transfer Finance and Development casebook ....

The Law Blog reached out for the authors of Real Estate Transfer Finance and Development, law professors Grant Nelson ... and Dale Whitman ...

“Are you serious?” said Whitman .... “Wow, he must not have liked that class very much.” ... “I’ve had people that say my scholarship is shot through with holes, but I’ve never had anyone prove it literally.”

“That is so bizarre,” [Nelson] said. “But at least he went after our casebook instead of going after people. Thank god for small blessings.” He then joked: “But it might not be so bad from West’s perspective, because that’s one used casebook now off the market.”

Grant Nelson is my colleague (he's now at Pepperdine, but he's still emeritus here at UCLA), friend, former teacher (property and remedies, not real estate finance), and former office neighbor. Thanks to our colleague Eric Zolt for pointing out the Grant connection.

Scooby Doo and Blogging:

I haven't blogged anything substantive and substantial (as opposed to quick links to others' work, or other very short items) since the 12th -- work and my wonderful but time-consuming little boys have left me with no time to spare. In any case, after I mentioned this to my colleague Joe Doherty as an explanation for why I haven't blogged about a fascinating issue he'd mentioned to me (the Phoenix New Times address publication / grand jury secrecy breach controversy, which is smack up my crime-facilitating speech alley), he responded:

That sounds like a Scooby Doo excuse: "I would have blogged about it if it weren't for those pesky kids."


Ethanol: "Neither Renewable Nor Reliable":

Speaking of corporate welfare, the cover story in new issue of Regulation, "Neither Renewable nor Reliable" by James Eaves and Stephen Eaves, devastates the environmental and "energy security" arguments for corn-based ethanol. According to Eaves and Eaves, corn-based ethanol is simply not capable of displacing a significant proportion of gasoline consumption, nor would a shift to corn-based ethanol protect markets from volatility due to supply disruptions. They conclude as follows:

When we assume the ethanol production process is fully renewable, it would take all the corn in the country to displace about 3.5 percent of our gasoline consumption — only slightly more than we could displace by making sure drivers’ tires are inflated properly. There are also ethical considerations. In particular, the United States is responsible for over 40 percent of the world’s corn supply and 70 percent of total global exports. Even small diversions of corn supplies to ethanol could have dramatic implications for the world’s poor, especially considering that researchers believe that food production will need to triple by the year 2050 to accommodate expected demand. Furthermore, ethanol would not necessarily be a more reliable source of fuel. By displacing gasoline with ethanol, we are displacing geo-political risk with yield risk, and historical corn yields have been about twice as volatile as oil imports. Finally, because high temperatures can simultaneously increase fuel demand and the cost of growing corn, the supply response of ethanol producers to temperature-induced demand shocks would likely be weaker than that of gasoline producers.

Note: The Regulation article is based upon a longer study forthcoming in Energy Policy.

The Informant:

I just finished reading Kurt Eichenwald's amazing book The Informant, about the antitrust investigateion of Archer Daniels Midland for price-fixing in the 1990s and Mark Whitacre, the ADM senior executive who agreed to cooperate and even to record conversations with other members of the global conspiracy.

Wow--what a great read! Certainly one of the best books I've ever read on a legal subject and especially interesting for those of us who work on antitrust and competition law issues.

I know the book is a few years old but I just finally got around to it now. A few years back I gave a speech at a Japanese Fair Trade Commission conference where Scott Hammond of the DOJ also spoke. He showed some of the videotapes from the investigation. Here's another version of Hammond's speech that contains links to various excerpts from the transcripts of the video and audio tapes recorded by "the informant" Mark Whitacre. The transcripts make for interesting reading.

Does anyone know if the lysine price-fixing videotapes are available on-line anywhere?


Josh Wright has the address at DOJ to contact if you want copies of the videotapes.


A Commenter points me to this Wikipedia page that provides an update on some of the figures in the book as well as some controversies about the author, the book, and some of the claims in it. Very interesting. Whitacre is now out of prison and a senior executive at a California biotech company.

The New Corporate Welfare Queens:

The last Republican Congress justly earned a reputation for wasteful spending, particularly when it came to corporate welfare. Yet it appears the current Congress may do them one better. The last Congress spent over $90 billion per year on various subsidy programs, according to the Cato Institute. Yet, as a W$J editorial reports, the current Congress appears set to break the $100 billion mark.

The handouts for the rich that have a good chance of passing include the most expensive farm bill ever; a rise in the mortgage limits on loans that can be securitized by Fannie Mae and Freddie Mac; some $2 billion in loan guarantees to ethanol producers; and expansions in flood and terrorism insurance to benefit home builders, mortgage banks, and real estate developers.

Perhaps, the Journal suggests, this helps explain recent trends in corporate campaign contributions.

If you want to know how good liberals can tolerate such largesse for the rich, keep in mind that in Washington quids often come with a quo. The latest FEC fundraising reports indicate that industry lobbyists have shifted their allegiance from Republicans and are now funneling cash to Democrats they expect to hold their majority. Roll Call newspaper, which covers Congress, reports that in the first half of 2007 business lobbyists gave "all or most of their cash to Democratic candidates and party committees."

Eco-Waiver for Border Fence:

Earlier this month, a federal court enjoined construction of a border fence in southeastern Arizona designed to help keep out illegal immigrants, finding the Department of Homeland Security had failed to adequately consider potential environmental impacts. But this decision will not stop the fence's construction. Yesterday, utilizing authority contained in the 2005 law authorizing the fence's construction, Homeland Security Secretary Michael Chertoff waived the environmental requirements, allowing fence construction to proceed.

Blogging Break:

Starting tomorrow, I'm going to take a bit of a break from regular blogging. I have committed to writing two books, and I need to focus on them. I may (probably will) occasionally chime in, especially to update things I've previously blogged about before, but if and when I do, I'm going to leave comments closed so that I don't have to moderate them, and am not tempted to spend time reading and responding to them.

Vampires and the law:

I've just started reading Sundays with Vlad: From Pennsylvania to Transylvania, One Man's Quest to Live in the World of the Undead, by Paul Bibeau. As the back cover explains:

At eight years old, Paul Bibeau had the footie pj's scared off of him when his sister sprang out of a crawlspace in the dark wearing plastic fangs. It was the start of a lifelong fascination with vampires. Now a "grown-up" journalist, he has embarked on a quest to discover how a second-rate Wallachian Prince named Vlad, inserted into an odd little nineteenth-century book by some guy named Stoker, became such a pervasive cultural icon.

I'm about fifty pages into the book now; the early chapters, mostly about Romania, are very good and funny. But for now, let me share with you one passage from the book (pp. 34-36), about why Romanians haven't been so keen to capitalize on the international fame of their native son Vlad Dracula.

As of 2000 almost half of Romania's population lived in poverty . . . . But the country also had a potential fortune -- a character whose legend had launched a multimillion dollar media empire. Romania was like a homeless guy carting around one of those stolen supermarket carts filled with bags of aluminum cans, a pile of dirty laundry, a half-drunk bottle of Night Train, and a framed Van Gogh original in mint condition. It just didn't make sense. Why couldn't the country cash in? . . . .

Sighişoara [a Transylvanian town that at one point was going to be the site for a Dracula theme park] had already seen its share of Goths . . . and locals wanted none of it. At a rock music festival a few years ago, it was mobbed with up to 90,000 people. . . . [T]he rock fans actually scrawled pentagrams on the gravestones at the local church . . . .

[I]n late 2001 . . . a Miramax crew filmed a series of movies called Dracula Resurrection there. Locals reported stumbling over fake-blood-soaked mannequins in their town square. "My daughter was terrified," said one townie.

It wasn't hard to see their point. To Romanians Vlad was a national figure, not a vampire. Imagine foreigners coming to visit the Lincoln Memorial by the thousands -- wearing stovepipe hats, false beards . . . and plastic fangs. They love Lincoln. They love how he can turn himself into a bat. How he freed the slaves and rises at night to suck the blood of the living. Imagine you know you could make major bucks off these freaks if you chiseled a pair of wicked-looking teeth on Lincoln's statue.

You'd have to be desperate to even consider it.

As someone whose middle name begins with "Vlad," I may be blogging in the future about my own interests in vampires and the law -- what Buffy has to do with property law and the law and economics insights of Angel.

[Hanah Metchis Volokh, guest-blogging, October 23, 2007 at 8:04am] Trackbacks
Two Appointments Clauses:

I'm going to lay out the arguments in my paper in a series of posts. This post provides some background information about the Constitution's procedures for appointing officers of the federal government, and explains why I make a distinction between two separate Appointments Clauses.

Readers who have a bit of familiarity with what is generally called the Appointments Clause of the U.S. Constitution will somewhat surprised at the title of my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers. What is this second appointments clause, and where did it come from?

Those with a more extensive knowledge of that clause, Article II, Section 2, Clause 2, should be able to guess that I'm talking about the same old Appointments Clause but am dividing it into two parts. The Constitution actually sets up two different methods for appointing federal officers, and it does so in a single, very long sentence. (Actually, it's just most of a sentence, since the first clause in the sentence describes the treaty power.) It's worth quoting in full:

[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint 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: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

It doesn't take a very close reading to see that this creates two different processes. In the first one, the President nominates an officer and, with the advice and consent of the Senate, appoints the officer. In the second, Congress may allow the President, a court, or the head of a department to appoint an officer without Senate confirmation. Both of these processes are frequently used. You read about and watch confirmation hearings for judges, the Attorney General, the director of FEMA, and so forth. But you'd never see a confirmation hearing for, say, the Deputy PTO Director, because Congress has vested the appointment of the Deputy PTO Director in the Secretary of Commerce. (If you don't believe me, you can look it up in 35 U.S.C. § 3(b)(1).)

Having these two separate procedures makes a lot of sense. The question of who counts as an officer and who is just a federal employee is debated in the literature, but on any definition there are thousands of officers in the federal bureaucracy and the judiciary. If the Senate had to confirm each one, they would have little time to do anything else. But when the officer in question will hold a very powerful office, or one with lots of political considerations involved, Senate confirmation is an important check on the President's power. The publicity of a confirmation hearing (though a hearing is not actually required for confirmation) also helps to create accountability.

Two other obvious points. First, the Constitution requires Senate confirmation for certain very important and politically sensitive officers: "ambassadors, other public ministers and consuls, [and] judges of the Supreme Court . . . ." Second, for inferior officers, Senate confirmation is the default method. To avoid Senate confirmation, Congress must take the affirmative step of passing a statute conferring power on one of the constitutionally-recognized appointers to appoint the officer.

Existing scholarship has assumed that these few considerations basically exhaust the differences between the two appointments procedures. When assessing the constitutionality of something having to do with appointment or removal of officers, few people make any distinction based on which of the two Appointments Clauses is being used.

My argument is that the differences go deeper than initially appears. The text of the Appointments Clauses points to differences, and the different structures of power created by the two procedures lead to different constitutional considerations as well. In my paper, I discuss the phenomenon of statutorily-imposed job qualifications for federal officers and explain how they should be viewed differently for officers appointed under each method.

More on Judge Samuel B. Kent and Impeachment:

Lawyer/blogger "Beldar" has a lengthy rant about my calls for Congress to investigate the possibility of impeaching Judge Samuel B. Kent, the Galveston, Texas district judge who has been accused of sexual harrassment and has a long record of other ethical problems.

Essentially, Beldar's claim is that because the Fifth Circuit Judicial Council could have chosen to recommend Kent's impeachment but ended up reprimanding him without a recommendation on impeachment, that is strong evidence that his offenses are not grave enough to justify impeachment.

My response is very simple: the Fifth Circuit's nonaction on impeachment proves little if anything. It doesn't even prove that they considered the possibility of recommending impeachment and rejected it. Had they done so, they could have stated that in their opinion on the matter - something they notably didn't do. The federal statute that Beldar claims imposed a "statutory obligation to consider whether to recommend the impeachment of judges like Judge Kent" does no such thing. It merely says that the Council "may, in its discretion" (emphasis added) refer the matter to the Judicial Conference of the United States for consideration of the impeachment option (the Conference can in turn refer the matter to Congress). The Fifth Circuit Judicial Council is not required to consider the impeachment option and we have no proof that it did so in this case.

Even if it did consider it and rejected it, it does not follow that Congress should defer. In such difficult internal matters as the disciplining of other judges, a judicial conference is likely to act on a consensus model of decisionmaking. The reprimand issued to Kent (which is a very unusual step in itself) may have been the lowest common denominator that all nineteen Fifth Circuit Council judges could agree on.

Beldar also claims that the Conference could have used "harsher" terms in describing Kent's alleged offenses or asked him to retire. I think that the Conference's reprimand is already quite harsh by the standards of judicial language. Again, we have to remember that the reprimand is a committee document that probably represents the lowest common denominator that 19 people of very different ideologies and temperaments could agree to.

Beldar further asserts that the Council could have suspended Judge Kent for "up to 15 years" of its own initiative. That extreme claim strikes me as in obvious tension with the Constitution's mandate that judges serve for life unless impeached and removed by Congress. If other judges could suspend a federal judge for as long as 15 years, they could effectively negate his or her lifetime appointment simply by issuing two such suspensions (or even just one, if the judge in question were old enough). It'll take a lot more than a partially vacated district court opinion (the only authority cited by Beldar to support this extreme proposition) to convince me that he is right on this point. Indeed, looking up that opinion, I found that it says nothing of the kind, but instead merely notes that some other judges believe that a 15 year suspension is beyond the power of a judicial conference for precisely the kinds of reasons that I noted above. The opinion states that:

Some jurists have expressed concern that suspension might become equivalent to removal if it extended for an inordinate amount of time, see e.g., Hastings I, 770 F.2d at 1108-09 (Edwards, J., concurring) (using fifteen years as the benchmark), but a one-year suspension does not implicate these concerns." McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 83 F. Supp. 2d 135, 165 & n.18 (D.D.C. 1999), aff'd in part & vacated in part for mootness, 264 F.3d 52 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002)) [Note: The McBryde opinion is slightly misleading when it cites Judge Edwards as stating that fifteen years is "the benchmark." Edwards' wrote that 15 years is beyond a judicial conference's power, but did NOT conclude that any suspension of less than 15 years is permissible].

Even the one year suspension that the district court decision approved may be constitutionally suspect, though I won't argue the issue here.

Finally, Beldar mispresents me as claiming that impeachment is the only and "obvious remedy" for Kent's misconduct. As I explained time and time again in my posts, all I advocate is that "Congress should investigate the issue and give the possibility of impeachment serious consideration" (a direct quote from my first and most detailed post on the subject).

In sum, Beldar's post distorts 1) the applicable law on impeachment, 2) a judicial opinion, and 3) my posts. That's a pretty neat trifecta.


Monday, October 22, 2007

Landsburg on Climate Economics:

In Slate, armchair economist Steven Landsburg examines the questions climate change policy advocates must answer. In particular, he notes that recognizing the fact of human influence on the global climate does not resolve the policy debate. There are many other scientific, economic, and ethical questions to resolve first, including the proper discount rate and level of societal risk aversion. I don't agree with every jot and tittle of Landsburg's piece, but I think it helps elucidate the complexity of climate change policy, even before one considers specific policy proposals and issues of institutional design.

Is Cape Wind Dead?

Last week, with little fanfare, the Cape Cod Commission denied Cape Wind Associates permission to run transmission lines to their proposed offshore wind farm, the Boston Globe reports. The Commission based its decision on Cape Wind's alleged failure to provide sufficient information about its project. Yet there is little doubt the decision was motivated by well-financed local opposition. As the Globe editorialized last week:

The cable has been the focus of so much attention by state and Cape Cod regulators because it is the one part of the project under their purview - the turbines themselves would be in federal waters and under jurisdiction of federal watchdogs. . . .

There is evidence that the Cape Cod Commission is finding fault with the cable proposal because some commission members or residents of the towns they represent do not want the turbines, which at their closest point would be about five miles from the Cape, in their viewscape. At the same time the commission was dealing with the cable proposal from Cape Wind, it approved without benefit of any review at all a new electric cable linking Nantucket with the Cape. At 26 miles, that cable has already been built, and it is double the length of Cape Wind's.

Cape Wind can appeal the decision, or seek to satisfy the Commission's information request. Either course may involve further delay, and further cost increases. If local NIMBYs defeat this project, it could produce an ill wind for offshore wind projects nationwide.

I previously wrote on regulatory obstacles to wind power and other alternative energy sources here.

[Hanah Metchis Volokh, guest-blogging, October 22, 2007 at 6:32pm] Trackbacks
Hello World:

I'm very excited to be here guest-blogging on the Conspiracy. Thanks to Eugene for the warm welcome. I plan to get started tomorrow blogging about my new paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law. I hope to write later about some of my papers-in-progress as well, which are on various constitutional separation of powers topics.

The Conspiracy hasn't had a student blogger in a few years (since Sasha graduated, I think), so I might also touch on a few topics that professors might overlook. For instance, is it ever justifiable to shoot your casebook? (Answer: A classmate of mine familiar with the book says this was most likely self-defense.)

Once again, I'm thrilled to be in such excellent company, and I will be posting for real tomorrow.

Yale Valedictorians in 1785 and 1792 Delivered Their Orations in Hebrew:

So reports a Yale library Web page:

In [1777], [Rev. Ezra] Stiles was called to Yale to become its president; a year later, he became the school’s first Semitics professor.... A Yale student wrote in 1788, "The President insisted that the whole class should undertake the study of Hebrew ... For the Hebrew he possessed a high veneration." As it turns out, Stiles’s prescription was not popular and by 1790, he modified his edict: "From my first accession to the Presidency ... I have obliged all the Freshmen to study Hebrew. This has proved very disagreeable to a Number of the Students. This year I have determined to instruct only those who offer themselves voluntarily." While enrollment in his courses dropped, the valedictorians of the classes of 1785 and 1792 did deliver their orations in Hebrew.

More on Islamofascism,

from Christopher Hitchens, in Slate. An excerpt:

The most obvious points of comparison would be these: Both movements are based on a cult of murderous violence that exalts death and destruction and despises the life of the mind. ("Death to the intellect! Long live death!" as Gen. Francisco Franco's sidekick Gonzalo Queipo de Llano so pithily phrased it.) Both are hostile to modernity (except when it comes to the pursuit of weapons), and both are bitterly nostalgic for past empires and lost glories. Both are obsessed with real and imagined "humiliations" and thirsty for revenge. Both are chronically infected with the toxin of anti-Jewish paranoia (interestingly, also, with its milder cousin, anti-Freemason paranoia). Both are inclined to leader worship and to the exclusive stress on the power of one great book. Both have a strong commitment to sexual repression -- especially to the repression of any sexual "deviance" -- and to its counterparts the subordination of the female and contempt for the feminine. Both despise art and literature as symptoms of degeneracy and decadence; both burn books and destroy museums and treasures.

I think he treats the other similarity -- both are repressive of political, religious, and social dissent -- as too obvious to need mentioning. He also goes on to acknowledge differences, related to corporatism and racial superiority (though suggests that Islamofascism does in some measure involve some claims of racial or ethnic superiority).

Related Posts (on one page):

  1. More on Islamofascism,
  2. Islamofascism:
Hanah Metchis Volokh, Guest-Blogging:

I'm delighted to report that Hanah Metchis Volokh will be guest-blogging for the next several weeks.

Hanah does separation of powers law, with some statutory interpretation, federal courts, and administrative law on the side. She's the author of Congressional Immunity Grants and Separation of Powers: Legislative Vetoes of Federal Prosecutions, 95 Geo. L.J. 2017 (2007) and The Two Appointments Clauses: Statutory Qualifications for Federal Officers, 10 U. Pa. J. Const. L. (forthcoming 2008). She's also Chief Articles Editor at the Georgetown Law Journal, and will be clerking next year for Judge Jerry Smith on the Fifth Circuit. She is thus Todd Zywicki's and Ilya Somin's sister in the Jerry Smith clerkship family, and also Sasha's wife and therefore my sister-in-law.

Go Red Sox!

I try to limit the number of baseball posts, as I know that's not really our focus here. However, I can't resist congratulating the Red Sox on another amazing playoff comeback to win the American League Championship series. They overcame a 3-1 deficit, and outscored a strong Cleveland Indians team 30-5 over the last 3 games. Yay!!!!!!!!!!

From a sabermetric point of view, the interesting thing about the series is that the Red Sox hammered the Indians' two ace starters - C.C. Sabathia (my pick for the AL Cy Young Award) and Fausto Carmona - in all four of their starts and went 3-1 in those games. Yet the Indians managed to get enough good work out of their 3-4 starters and bullpen to almost win the series. Both of these events are unlikely occurrences. But low-probability events do happen in short playoff series, and this is the second straight Indians-Red Sox series where the Sox won three must-win games in a row to stave off elimination (the other was the 1999 AL Division Series).

In any event, I'm going to kick back and enjoy the World Series. If nothing else, a series held at Fenway Park and Coors Field should be extremely interesting, with lots of scoring. I think that the Red Sox are stronger than the Rockies in all three phases of the game, and posted a significantly better record while playing in a stronger league. However, anything can happen in a short series, so a Rockies victory would not be a huge surprise.


Sunday, October 21, 2007

Five "Myths" About Rendition:

Former Clinton Adminsitration National Security Council staff member Daniel Benjamin takes to the Washington Post's Outlook section to address "5 Myths about Rendition (and that New Movie)." Writes Benjamin:

With hearings in Congress, legal cases bouncing up to the Supreme Court and complaints from Canada and our European allies, the issue of rendition is everywhere. There's even a new, eponymously titled movie in a theater near you, starring Reese Witherspoon as a bereft wife whose innocent husband gets kidnapped and Meryl Streep as the frosty CIA chief who ordered the snatch. Like most covert actions and much of the war on al-Qaeda, the practice is shrouded in mystery — and, increasingly, the suspicion that it's synonymous with torture and lawlessness.

In fact, the term "rendition" in the counterterrorism context means nothing more than moving someone from one country to another, outside the formal process of extradition. For the CIA, rendition has become a key tool for getting terrorists from places where they're causing trouble to places where they can't. The problem is where these people are taken and what happens to them when they get there. As a former director for counterterrorism policy on the National Security Council staff, I've been involved with the issue of rendition for nearly a decade — and some of the myths surrounding it need to be cleared up.
Here are Benjamin's five "myths":
1. Rendition is something the Bush administration cooked up.
2. People who are "rendered" inevitably end up in a foreign slammer — or worse.
3. Step one of a rendition involves kidnapping the suspect.
4. Rendition is just a euphemism for outsourcing torture.
5. Pretty much anyone — including U.S. citizens and green card holders — can be rendered these days.